eDiscovery

Sometimes in eDiscovery more is better

Optimizing efficiency and accuracy with seven methods of review

With the proliferation of electronic data, the vast majority of business communication is now in electronic format.  It is not surprising that the use cases for eDiscovery technology have expanded beyond the typical litigation review for production use cases.  In the eDiscovery Today 2023 State of the Industry Report, survey respondents reported that the expanded use cases for eDiscovery technology and workflows ranged from arbitration (51%) and investigations (83%) to breach incidence responses (47%), to privacy requests (42%), government information requests (48%) and HSR Second Requests (43%). 

Document review is not a one-size-fits-all approach

While the basics of eDiscovery technology is applicable across this vast spectrum of use cases—that is, identify, preserve, collect, process, review, analyze and produce electronic data, a one-size-fits-all approach to document review itself will not guarantee optimized outcomes for every case, whether litigation or investigations or emerging use cases.

Document review and analysis has made many advancements over linear review in the past decade, with growing adoption of analytics and technology-assisted review, a form of machine learning, which is exponentially faster (and more accurate) than a traditional linear review. However, is it the optimal approach in every document review situation?

The simple answer is no, and here’s why: Document review projects have different objectives, timelines, budgets and risk tolerance. The objective of an outgoing review for production is not the same as that of a third-party subpoena or an HSR second request response or a data breach analysis. 

Optimal review (e.g., lowest cost and shortest timeline within acceptable risk parameters) requires the right technology and the right review methods.

OpenText offers a smarter approach to document review: here’s what to ask

By employing a three-dimensional analysis of the goals, risk tolerance and time and cost parameters for every project – and matching those factors with the most efficient and effective review methodologies –OpenTextTM Managed Review balances time, cost, and risk without tradeoffs.

Here are some questions to think about for your next document review project – and whether you are employing the approach that best matches your case objectives.

1. Do you need absolute certainty that every potentially responsive document is reviewed (and produced if not privileged or sensitive)?  

If yes, you may need to set eyes on every single document in the collection with a linear review. Though time-consuming and expensive, it can be done for relatively small collection of highly relevant and highly sensitive documents. It should be noted that linear review of large datasets is often conducted by large teams of reviewers to expedite timelines. The result is often decreased review quality due to inconsistent coding and reviewer fatigue.   

2. Is it necessary to review all documents being produced, but not set eyes on every document in the collection? 

In outgoing reviews for production in civil litigation, in which the producing party demands the certainty of knowing that the review team has put eyes on every document being produced to protect privileged and confidential information from inadvertent production, it’s often not necessary to set eyes on every document in the collection. Using TAR managed review to surface only those documents most likely to be relevant for review is a substantially less expensive and faster method than linear review. TAR allows review teams to leave substantial portions of the document collection unreviewed – those containing documents deemed by the TAR algorithm as unlikely to be responsive. Documents coded responsive during the TAR workflow will almost always be subject to a secondary quality control (QC) privilege review either using a linear review or TAR-assisted QC to protect attorney-client privilege and other sensitive data.

3. Is cost-certainty your most important objective?   

Where the client demands absolute certainty and protection against cost overruns prior to the start of the review, OpenTextTM offers a fixed-fee TAR review in which OpenText assumes the risk of any cost overruns in exchange for a small premium as compared to a regular TAR review.

4. Is it possible to confidently produce documents without setting eyes on every document marked for production? 

In cases such as third-party subpoenas, HSR second requests, EC RFIs and SRR reviews, including DSARs, it’s often unnecessary for the review team to put eyes on every document being produced.  Furthermore, the cost and time pressures in these scenarios often necessitate an approach that is more efficient than even the best TAR review. 

OpenText Rapid Analytic Investigative Review (RAIR) is an innovative review methodology to maximize efficiency without increasing risk beyond acceptable levels by using advanced analytics to locate characteristically similar sets of documents that can confidently be managed as a group for purposes of production, which keep sensitive data protected.  By using the RAIR methodology the team can substantially reduce the time and cost associated with document review without adding unacceptable levels of risk in appropriate circumstances. 

5. Is a RAIR review your best option, but cost-certainty is paramount?

Where the team has identified a RAIR review as the optimal method of review, but the client needs absolute cost-certainty at the outset, OpenText offers a fixed-fee RAIR review in which OpenText charges a small premium and assumes the risk of any cost overruns.

6. Where risk tolerance necessitates an eyes-on review of documents being produced, how can the time and cost of a TAR review be minimized?

Even where the objectives and risk tolerance of the matter dictate that it is necessary to review every document being produced and that TAR is, therefore, the preferred method of review, it is still possible to leverage RAIR methodology to accelerate the TAR review. We call this RAIR-enhanced TAR review. For example, in an outgoing review for production in litigation where the document collection is very large, RAIR methodology can be used to bulk code large portions of the collection as non-responsive (e.g. culling generic newsletters, marketing emails, etc.) and can also be used to rapidly identify key responsive documents to give the TAR review a head-start before it even begins.  The result is an accelerated, more efficient TAR process without increased risk.

7. Is your primary objective to identify and report on personal information that may have been exposed in a data breach?

RAIR methodology also has an important role in maximizing the efficiency of data breach analysis and response.  Even though the goals of breach response analysis and reporting are substantially different from the previously discussed scenarios, RAIR for early data analysis can be used to readily eliminate portions of data unlikely to contain personal or confidential information.  With timelines for cyber incident reporting in the United States shrinking to 72 hours for some sectors the time-savings offered by using RAIR for early data analysis are more critical than ever.

Click here to learn more about how OpenText Managed Review can optimize outcomes for every scenario.

And don’t miss these additional resources: 

Wendy Cole

Wendy is a long-time legal technology and eDiscovery enthusiast. Having participated in many facets of the legal and legal technology industries, her broad range of experience spans from being on the front-line of eDiscovery projects as a civil litigator and eDiscovery counsel, to managing and marketing legal technology software and services for global organizations.

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