In a Time of Uncertainty, Your Ediscovery Technology Should Bring You Certainty

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If the COVID-19 pandemic has taught us anything, it’s that you can never really predict what’s going to happen. Lawyers and their clients are facing an increasing number of novel COVID-related legal issues, including employment litigation over work conditions and vaccine mandates; insurance litigation over policy coverage during the pandemic; commercial lease disputes relating to pandemic disruption; not to mention the high-profile trials delayed due to witness or juror exposures. At the same time, litigation is growing even more expensive as cases drag on longer than ever before. 

While clients continue to expect top-notch service, counsel dealing with COVID-related litigation are facing a host of new issues. For example, the shift to remote work means discovery now involves new document formats, such as Zoom recordings and Slack messages. Counsel are also managing costs during a cash-strapped time when office budgets are uncertain as well as dealing with a rising ediscovery burden despite working remotely. Here are four methods tech-savvy lawyers are using to win COVID litigation and prepare for the next crisis.

1. Budget right the first time

Today, many companies seek the predictability — especially cost predictability — that was sorely missed in 2020. At the same time, ediscovery costs have a way of ballooning beyond what is expected. Bloomberg’s 2020 report found that legaltech costs exceeded estimates for more than half of firms and one-third of in-house departments in the previous year. Budgetary concerns are top of mind for attorneys considering new technologies today. 

When budgeting for ediscovery, pay close attention to what is and what is not included in pricing to ensure you don’t end up being nickel and dimed. Many ediscovery providers will charge per GB for analytics or charge per-user license fees, as this pricing survey from JDSupra reflects. Per-document costs for imaging and OCR (text recognition) will add up once documents are ready to produce. Industry standard production costs can exceed $300 per GB. Mitigate surprise costs by finding an ediscovery provider that charges you an all-inclusive price and seek a budget guarantee.

2. Use modern technology and AI to get to evidence faster

Increasing data volumes mean it’s more difficult for practitioners to resolve cases efficiently. At the same time, lawyers are reluctant to rely on black-box artificial intelligence technologies. According to Bloomberg Law’s 2021 Legal Technology Survey from September 2021, only 13% of respondents used any form of technology-assisted review (TAR). At the same time, Bloomberg’s 2020 survey found 90% of respondents agreeing that use of legal technology has increased efficiency in the organization in general. According to Magistrate Judge Andrew J. Peck in 2015, “[t]he case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” Yet the legal industry has been slow to adopt AI despite the strong judicial vote of confidence. 

The percentage of lawyers who use TAR (13%) is both shockingly low and completely unsurprising to any litigator. Note that attorneys can still review the exact same documents while using TAR if they want to — at a bare minimum, TAR should be used to prioritize documents and to provide an automatic double-check to human review. Of course, if used to its fullest potential in a feature-rich ediscovery platform, AI can yield truly impressive results. For example, global law firm Kennedys was able to go from collection to discovery with 1.4 million documents in just 11 days using AI models, automatic email threading, similar document detection, and fast doc-to-doc platform speed. 

3. Be prepared to handle new types of discovery 

Today’s coworkers nod along in Zoom meetings while running side commentary in Slack or chat. For in-house counsel and firm lawyers, the move to Zoom comes within some new considerations. No doubt many lawyers died of second-hand embarrassment and double-checked their Zoom settings after seeing the “I am not a cat” video.

When litigation looks reasonably imminent — when considering which ediscovery solution to use — make sure your pick is able to handle modern data types, including Zoom, Slack, and others. Failure to adequately capture metadata may result in sanctions. For lawyers handling COVID-related matters, the shift to virtual in 2020 may only now be impacting data collections. 

Taking a forward-looking approach to new discovery data types is part of looking at the big picture and creating value for clients over the long term, rather than reacting only to the case in front of you. In a recent interview, Jason Barnwell, an attorney in Microsoft’s Corporate, External, and Legal Affairs department, said he is delighted when a law firm invests in technological development, because it results in cost savings for each case down the line.

4. Demand remote-first capability 

According to an April 2021 McKinsey study, 52% of workers prefer a hybrid model post-pandemic, up 22% from pre-COVID19. Unsurprisingly, one 2021 survey of IT leaders showed that nearly half said that accelerating cloud adoption and migration continued to be a priority. Smart counsel should expect companies to cater to remote workers and take their own steps to ensure collaboration despite physical distance. For lawyers working in ediscovery, document review should be available from anywhere. 

Have you tried DISCO Ediscovery yet?

Some ediscovery options are better than others in these uncertain times. Here’s why you should take a look at DISCO Ediscovery the next time you do battle with a large number of documents.

  • Lightning-fast platform: To get to evidence fast, you need an ediscovery platform that can keep up. DISCO Ediscovery runs your search or renders your next document in less than a second. Our platform takes advantage of cloud architecture to automatically scale up resources when needed.
  • Predictable pricing: DISCO’s simple flat-rate pricing model eliminates hidden costs and allows for better budget planning. We only charge based on pre-expanded data size and we never nickel-and-dime you with additional fees. 
  • Built-in AI: Leverage the power of AI with one click, at no extra cost. In general, our customers save 30% in review time by leveraging DISCO’s performance and AI tools. We also automatically thread emails and identify the most inclusive one for you. These are just a few reasons why DISCO is the best tool for situations where you have to get through a large volume of documents quickly, like investigations.
  • Future-proof: DISCO Ediscovery is built and updated to keep up with latest data types. Review and tag public and private Slack messages and play Zoom recordings right in the platform. Available anywhere there is an internet connection, on any device with a web browser, DISCO allows you to easily collaborate with both internal and external teams, reducing delays and frustration. 

Schedule a consultation on how we can bring cost predictability to one of the largest expenses of your legal team or law firm.

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Anush Emelianova

Anush Emelianova is a product marketing manager at DISCO.  Before joining DISCO to further the cause of legal technology and AI adoption, she spent 10 years practicing litigation and counseling clients on data breach response and data privacy compliance.