Big data describes “a collection of data sets so large and complex that conventional database management tools or data processing applications have difficulty processing the data.” With the growth of information created and available, the typical challenges become more difficult in the context of big data. These challenges include capturing, curating, storing, searching, sharing, transferring, analyzing, and visualizing the data. Given the near-constant threat of litigation, the amount of data stored on a company’s servers and computers, an individual’s laptop, and handheld devices should be a major concern for corporate counsel. Big data can also result in bloated litigation budgets due to the necessity of searching, retrieving, reviewing, and processing these vast datasets.
The dynamic nature of big data and e-discovery will always raise the following questions:
How will one preserve and collect potentially relevant data?
What tools can be used to process and review for privilege and responsiveness?
What will production of big data and electronically stored information entail?
The need to identify and implement sound policies, tools, and workflows to preserve, collect, process, review and produce data for privilege and responsiveness will always remain. Corporate counsel should have a clear definition of the company’s policy on personal devices, social media, data retention, and legal hold, along with well-documented e-discovery best practices. These policies can reduce the risk of spoliation and sanctions and increase defensibility when counsel deals with big data.
Cooperation between in-house counsel, the CIO, and the company’s IT department ensure valuable returns to the overall costs associated with litigation and network info-structure, and enhance workflow and deployment of emerging technologies, data security and vendor management.
Counsel should also develop a team to create a request for proposal for e-discovery service and software providers and outside counsel. For identifying service providers, look into current pricing structures, processing workflows, data formats, customer response, service level agreements, error rates for processing and review, security, and disaster and recovery plans. Service providers are now offering managed service agreements for data processing and review. These also include reselling third-party applications that allow the flexibility to increase or decrease bandwidth without incurring capital investments to internal staff and network.
For hiring and negotiating with outside counsel, negotiate alternative fee arrangements. Manage relationships with outside counsel and vendors to ensure all billing and cost measures are accounted for and that best practices are followed and defensible. When analyzing vendor relationships, find out if their process can work within the company’s current workflow, hours of support, file types handled, and the location of data processing. When investigating software to use, ensure its features are useful and verify the necessity of the extras offered. Ask how often the newest and greatest features assist in workflow and current cases. Ensure that staff are properly trained.
Implement a plan to centralize global discovery in order to institute cost-cutting measures. Use cloud-based technology to streamline legal hold and data management for high-level executives whose emails and documents will be included in litigation holds in almost every lawsuit. This can reduce the number of vendors and e-billing measures.
To avoid spoliation, sanctions, and other “penalties” for noncompliance, corporations must institute a legal hold at the threat of pending litigation. To avoid these issues, corporations can institute a litigation plan focused on data retention and management of policies focusing on key personnel, key terms, and key departments. This will reduce the need to collect, index, and process the same data repeatedly.
Use these techniques to reduce risk and cost: (1) create an automated legal hold for custodians that are most likely to be subject to litigation; (2) implement the appropriate tools for data review and processing; (3) deduplicate, deNist, and cull data based on custodian, date range, location and keywords; (4) implement a platform that offers a data repository for all work products; and (5) be proactive by meeting and conferring with opposing counsel within a defined production format and schedule.
Targeted collections can save a large amount of legal expense in e-discovery if the process is done correctly; however, if processed incorrectly, targeted collections can be detrimental. Consider why the data is collected and what data can be removed to save costs in a defensible manner.
More complex data and cases may need the enhanced features, but most cases in litigation can be easily managed with targeted collection, key search terms, processing of natives files and preservation of data for future litigation matters.
Keywords: litigation, technology for the litigator, big data, data sets, electronically stored information, ESI, e-discovery, targeted collections