In eDiscovery, attorneys must wade through electronic data with purpose.
Discovering digital truth is a matter of facts, not just documents.
Artificial intelligence tools are essential for attorneys during the electronic discovery process, but without expert contextual analysis, you’re potentially missing some of the most important information that could make or break your case.
Attorneys often process everything under the sun because they don’t know how to communicate their information technology goals to produce efficient eDiscovery for maximum impact. Most attorneys are not technology experts; likewise, artificial intelligence tools don’t have Juris Doctor degrees.
Rather than betting your case on whether or not your software was capable, your law firm or legal department needs the ability to maximize eDiscovery by honing in on what’s relevant while dismissing what’s not. Software and technology are paramount, but you need to be able to apply it at the right time and place.
Retrieving unnecessary documents is time wasted
Let’s look at document discovery in the physical space before electronic data existed in the dizzying volumes that it does today. As an attorney looking for specific information, you wouldn’t read every document in an entire office building just because you know the document you’re seeking is in that building. You’d try to narrow the focus: From which department did the document originate? Where is the office of the person who created or handled this document? You’d start your search by looking in that specific office or on that particular floor of the building.
Ediscovery is no different, however many attorneys are casting the widest possible net just to see what they might catch.
The American Bar Association’s 2020 Legal Technology Survey reported that almost 25% of lawyers still do no early case assessments, and 41% report they never use an eDiscovery solution.
“Some 21% of lawyers report they don't know if they outsource (computer forensic specialists), which frankly is a scary statistic given the ethical responsibilities of lawyers when it comes to e-discovery,” according to the report.
If you process everything and try to review everything, while also trying to manage your case, you could wind up sending your client hundreds of thousands of dollars in bills every month. What’s worse is that you could find out something that’s critical to your case 16 months down the road, and that’s not going to put you in very good standing with your client.
Early case assessment
By focusing your artificial intelligence efforts on the correct data sources on the front end of eDiscovery, you can accelerate early case assessment and determine the facts that are both feasible and knowable. Sometimes this leads to further discovery, but often it leads to a reassessment of the entire case strategy. It could also lead to finding a smoking gun early on — before you’ve spent tens of thousands, or millions, defending the case — that encourages you to settle.
Blackstone Discovery believes you should have 70% to 80% of your eDiscovery answers after this early case assessment phase. And based on what’s found, attorneys will know if there’s a need to discover more evidence or whether evidence has been correctly targeted. That should inform the strategy for the case.
Is your method of eDiscovery meeting your duty of competence?
According to the ABA’s Model Rules of Professional Conduct 1.1:
“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
Blackstone Discovery delivers its electronic forensic expertise in the same way an arson investigator delivers fire expertise or a ballistics expert provides firearms analysis. Attorneys don’t impersonate those experts in the courtroom, so why would electronic data discovery be any different? Too often, attorneys believe they can play in the technology space because they have AI tools telling them they can, but If you don’t know what assumptions your software tools are making, you’re simply not building your case correctly.