I had a great session with one of the top eDiscovery law firms this week. We spent time on their pain points and discussing the ownership of ESI collections as they progress through the firm. One of the things that hit me was the realization that, as eDiscovery has consumed more and more of the actual discovery lifecycle, we may be unintentionally taking the traditional gatekeepers out of the loop.
When I reflect on the print/copy days of discovery, paralegals always owned the boxes. When a partner went looking for a critical document, the paralegal knew exactly where it hid and could reconstruct how it got into evidence. Paralegals still coordinate with the corporate clients on collections and overall management of deadlines, but it feels like initial collections now vanish into litsupport or service provider shops to emerge transformed into review sets. The problem is that this metamorphosis is generally a black box process (yes, I like the phrase because it evokes the abracadabra moment).
ESI processing has grown from simple file-to-TIFF conversion to encompass de-duplication, filtering, ECA investigations, normalization of metadata and much more. All of these steps are critical to reduce non-relevant ESI, cluster/group for review, pre-flag/tag and otherwise optimize reviewer accuracy and speed. In too many environments, paralegals only know that forensic images or PSTs went in, while hundreds of thousands of items were loaded for review.
This potential disconnect introduces the potential for error because the paralegal may not be able to account for the input/output metrics. Too many times, I have seen a paralegal put on the spot to find missing documents in the heat of trial or to account for why a specific document was never produced. Unless your eDiscovery processing is effectively transparent, the paralegal just shrugs and says, "Ask litsupport." Can you blame them?
So what do I mean by transparent? Boxes, folders and page counts made it easy to reconcile collections to productions. Container files, email attachments, embedded objects and many other new complexities pose serious challenges to anyone trying to understand what went in against what comes out of most processing engines.
We explode data (break out containers and attachments), then remove duplicates and known non-relevant files by various domains and other rules. We need systems that will document and report on each of these steps without devolving into techno-jargon. Many paralegals and project managers are highly technical, but not all. The bottom line is the need for a more sophisticated chain-of-custody process that keeps the real 'owner' informed of every step and allows them to put Humpty Dumpty back together under fire.