A recurring theme in modern litigation is the speed of technological growth and how it will benefit (or hurt) a legal case. This technological growth inspires a variety of companies to tout their discovery software, each claiming it offers the best on the market, making the discovery process easier. But best at what? For what? And why? We are in a time where governmental entities, corporations, and small firms employ some level of eDiscovery to avoid or engage in litigation. The perpetual question is, “Will this hold up in court?” The likely answer is yes–but to what degree? And in terms of eDiscovery methods, in what part?
Meeting the Standards
Special Counsel is a leader in its industry because our team understands that the ultimate goal is a win in the courtroom. To that end, any software used in the eDiscovery process must withstand legal attacks from opposing parties. It is highly unlikely that a court will inquire about the specific platforms used in a case, but a court will hear credible discovery motions that question whether a platform meets all eDiscovery factors for a defensible process. Those baseline factors include:
- Suspension of routine document destruction policy
- Putting a legal hold in place
- Legal teams being fully aware of company’s retention policy and data infrastructure
- Interviewing “key players” to determine how data is stored
- Monitoring legal hold compliance to ensure that all sources of discoverable information are identified and searched
- Retaining all relevant case information
- Producing all information that is responsive to opposing party’s production requests
Now, most practitioners would hone in on number seven as it seems to pertain to eDiscovery platforms for collection and analysis. But if the process fails in the first six steps, then the seventh factor is moot. A “best” platform provides processes for legal holds, retention, search parameters and conferring with a legal team before the parties begin the collection and production process. The platform also takes into account the potential high costs associated with eDiscovery. A “best” platform essentially takes a holistic attitude to eDiscovery. Below is a brief discussion of the top platforms, along with their bells and whistles, which have incorporated this holistic approach and are used by the Special Counsel team.
Arguably the top three platforms, Relativity, Catalyst, and Ringtail have created software that withstands attacks on its security, efficiency, and cost effectiveness. They also hold up under the factors needed to withstand a litigation attack. Relativity is considered high-end, with superior capabilities for large document collection. It also offers professional service teams that work hand-in-hand with the legal team. Relativity has an advantage over its competition as it was the first to take advantage of cloud technology (RelativityOne) and employ the security features and steps necessary for successful implementation. Like many platforms, it can be expensive to use. Relativity’s first customers, however, were some of the biggest law firms in the country and required 360º services. Subsequently, the big clients became litigation service providers that needed a company and software that could meet their need to securely house massive amounts of data. Relativity has been the pioneer for eDiscovery, even creating a full security team and processes to combat cyber-attacks. Over time, Relativity has created a 360º service that addresses eDiscovery factors and continues to expand by providing those services to smaller companies and law firms through reasonable outsourcing options.
Catalyst boats its ability to negotiate “enormous” amounts of data through its “continuous active learning (CAL)” built in analytics. The result is a platform that searches millions of documents in record time. Essentially, the program notes every decision made by a reviewer and applies that decision across all of the documents, constantly adjusting as more documents are reviewed. We know these processes as text analytics and predicative coding—terms that have shown up in litigation. Catalysts speed makes it an attractive choice for major litigation.
The last platform, FTI Ringtail, is like the Mac of the platforms. It has the same ability to handle massive amounts of data; however, it creates visuals that give the user a big picture look at the discovery process in real time. The program creates visual representations of types of documents (e.g., emails, pdfs, spreadsheets, etc.) to see where search concepts overlap. The user can move between document visuals or a list view.
At its most elementary, a good platform must preserve, collect, review and exchange electronic information for the purpose of using it as evidence. A great platform not only takes care of the basics, but also withstands legal attacks against its methodology for doing so. Have we made the most efficient use of the best technology available? The answer depends on whether we approach eDiscovery platforms not as tools used in a vacuum, but with reasonable assurance that the methodology employed will hold up in court.
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