Technology Advantage

COVID-19 and E-Discovery- How Things Are Changing

Amy Catton April 28th, 2021
COVID

COVID-19 has changed the world we live in. People are working from home, students are attending classes online, and all group events are handled remotely. For those of us who work in the E-Discovery field things have changed also. While we are facing new challenges, we are also finding interesting new opportunities to conduct our work more efficiently, and everything we are learning will inform our work even after the pandemic is over. 

Remote Collection

While the rest of the world made a massive pivot to working remotely in response to the COVID-19, remote collection has been a staple in the E-Discovery wheelhouse for years. The advances in remote collection tools have enabled e-discovery professionals to do their work efficiently, significantly reducing the costs associated with travel time and expenses for clients. Thus, the e-discovery world did not have to reinvent itself in view of the pandemic, but simply ramp up its best practices for remote collection, which has now become the standard means of collection of data. Legal teams are becoming more adept at conducting remote collections using tools such as Encase and Harvester or enlist the services of an outside vendor. 

Even though remote collection solves many of the discovery issues brought on by the pandemic, there are certain problems it cannot solve. For example, many offices continue to be closed to employee access, rendering devices left at the office and paper documents inaccessible to collection. Collection of paper documents or physical devices may need to be deferred until a later time and litigation timelines may need to be adjusted to account for this reality.

Information Security and Preservation

As employees transitioned to a remote model, new preservation and security concerns popped up. These concerns may present challenges for a legal team responding to discovery requests. My colleague, Starling Underwood, wrote on this very topic in a blog you can find here. For example, employees may use tools that are not commonplace in the standard office environment for communications. Using communication methods such as text messages and other instant messaging programs require significant new considerations, including whether the information is distributed on multiple servers and/or controlled by third-party social-media companies. My colleague, Russ Beets, wrote about navigating social media retention and collection during e-discovery in his article, which you can find here. E-Discovery teams need to update their methods, protocols, and tools to manage the collection process from a diverse universe of communication systems that employees now realistically use.

The pandemic has also created work-from-home challenges for e-discovery teams themselves. Data Security is always of the upmost importance but now with more managed document reviews moving to a remote model and legal teams working remotely there are additional security concerns. While working from home, the legal team must take extra precautions to guard any confidential information – including from any family member who may walk by and see confidential information displayed on the monitor. Team members also have a variety of home internet systems with different levels of security. Therefore, it is imperative that legal teams accessing e-discovery materials are using VPN or Citrix technology to add another level of security and protect the confidential information entrusted to them. 

The Bright Side – Legal Teams Turn to E-Discovery Teams for Guidance

While COVID-19 created many challenges for the legal community in general and e-discovery in particular, it is also allowing for innovation and adaption. First, the pandemic is accelerating legal teams’ adoption of cutting-edge legal technology because they no longer have the luxury of requesting boxes of documents in hard copy. While working from home, team members must rely on technology to assist in the practice of law, and e-discovery professionals are finding a receptive audience from case team members for trainings on the relevant technology. In our firm, to avoid sending and receiving data via external media, such as hard drives, and alleviate the need for team members to be in the office to handle the media, we have been relying more and more on secure file sharing sites to receive and produce documents. We have noticed that more higher level attorneys, even counsel and partners, are interested in learning how to use Relativity. They are also interested in how we can use technology to support their cases and legal strategy in innovative ways, all while cutting costs. In fact, our team is using Relativity for projects, tracking and analysis far beyond the realm of e-discovery, and clients are taking notice. Indeed, legal teams are finding new ways to work and E-Discovery professionals are helping them lead the way.

Greater adoption of technology is also leading to more sticky relationships with clients. As legal teams are learning to be more creative with their workflows, they are turning to teams like ours to brainstorm about how they can streamline projects using the technology we already have in-house. Clients benefit from this creative mindset, especially when law firms are taking the “we are all in this together” approach, offering help beyond traditional legal advice to solve COVID-19-created needs. An example may be partnering with a large bank to develop a workflow to process small-business loans using existing review technology. It would not fit the mold of a typical review, yet meets the needs of the client in a unique way.

COVID-19 Aftershocks

New litigation is emerging in the wake of the pandemic, and it will likely be a major area of practice for years to come. Lawsuits have already been filed against secondary education institutions seeking refunds of spring-semester tuition because campuses were shut down. Clients who follow legislation closely are keenly interested in how the recent omnibus spending bills affect their businesses. We can also imagine future litigation related to COVID-19 including breach of contract, safety violations, negligence exposure, labor and employment, and business interruption, to name a few. In all these matters, e-discovery departments will play a key role in preserving, collecting, and processing information, applying the best practices they honed during the extraordinary period we are living through right now.

 

DISCLAIMER: The information contained in this blog is not intended as legal advice or as an opinion on specific facts. For more information about these issues, please contact the author(s) of this blog or your existing LitSmart contact. The invitation to contact the author is not to be construed as a solicitation for legal work. Any new attorney/client relationship will be confirmed in writing.

Topics: Covid-19 Document Collection E-Discovery E-Discovery Best Practices Data Security Relativity E-Discovery Technology Innovation LitSmart Information Security Data Preservation

Subscribe to the E-Discovery Newsletter

Related Posts

  • Data Mapping - Why is it Important for Successful E-Discovery?

    A data map is usually something that is generated along with a data retention plan and is a great starting point if and when an organization becomes involved in litigation and discovery. Long before litigation and discovery, however, it is important to understand the relevant data sources that may be in play and where those can be found within the organization’s various data systems. This blog explains what a data map is, what it contains and how it is helpful.

  • Pitfalls of Complex Search Protocols in ESI Agreements

    ESI Agreements cover the full gambit of e-discovery issues, from preservation expectations to production specifications. Sometimes, these agreements include an overview of the process by which the parties will identify the universe of potentially responsive documents by using specific date ranges, identifying priority custodians and developing proposed search terms. Adding another layer of complexity, this discussion is often had in a vacuum before the parties even know how much data their clients have. Coming up with criteria that identifies the relevant documents, but is not overly broad, in this vacuum can be difficult. However, the process is important because the date range, custodians and terms will inevitably dictate how much data is collected, processed and reviewed, which can significantly affect any litigation budget.

Newest Posts

  • You’re Gonna Need A Bigger Boat: Data Management and E Discovery Strategy

    “You’re gonna need a bigger boat.” 

    This iconic line was uttered by Chief Brody in the 1975 blockbuster film Jaws when he first saw the massive size of the shark they were trying to catch. At that moment, Brody realized they were in completely over their heads, and the boat they had was not big enough to accomplish their task. While Quint’s Orca fishing boat and his traditional methods were capable of handling previous assignments, they were not going to be enough to take on the enormous shark they were chasing. 

    For better or worse, the digital environment we live in has resulted in an explosion in the number of documents and amount of information created and used by companies in their daily operations. A mid-sized company’s internal emails alone can run into the tens of thousands a day, and that is before factoring in reports, meeting minutes, studies, presentations, and other business documents. Adding in external emails and related attachments, you are looking at millions of documents a year. Because of this increased volume of data, companies dealing with potential litigation must adjust accordingly. 

    Like Brody, they need a bigger boat. An effective e-discovery strategy can provide companies with a bigger boat capable of handling even the most massive litigation matters.

  • Now You See Me, Now You Don’t: Ephemeral Messaging Challenges

    The emergence of ephemeral messaging applications to communicate with friends, family, and coworkers quickly, securely, and effortlessly has boomed over the past decade. In that time, users of ephemeral messaging apps have risen significantly, from millions to billions of active users! Ephemeral messaging is an integral and evolving part of both individual and company communications with advantages and challenges impacting companies and the legal industry. Companies must consider the ramifications of their employees' use of ephemeral messaging and adopt policies and procedures to best protect themselves and comply with requirements relating to litigation and regulation. Courts have already begun addressing the failure to preserve relevant ephemeral messages and have been issuing sanctions in a myriad of legal challenges. Ephemeral messaging is here to stay, and companies, courts, and attorneys must understand and adapt to evolve with this emerging technology.

  • Generative AI E-Discovery Tools and the Importance of Prompt Engineering

    The explosion of LLMs (large language models) and other Generative AI tools designed to increase workplace efficiency and productivity has created a new lexicon of jargon and definitions. The term “Prompt Engineering” may be the most widely used new term to describe the method of using LLMs and Generative AI tools. Prompt engineering is the creation of text-based instructions or cues that a person uses to direct LLMs or other generative AI tools. These instructions are then interpreted by the AI tool. Learning to harness the power of e-discovery AI Tools like Relativity’s aiR for Review through prompts specifically constructed to produce the output you desire in your case can increase your efficiency. Implementing these prompt creation and iteration tips and tricks will help you use Relativity’s aiR for Review tool to more effectively to assist with litigation, document review, and deposition or trial preparation.