Litigation is expensive and costs are going to rise as more plaintiffs and defendants collect and store volumes of data. Not all of that data is meaningful to a cause of action but collecting, sifting, parsing, analyzing, and packaging kernels of meaningful information will continue to be a valuable skill set. Currently, the legal industry is a $270 billion market. The e-Discovery industry is expected to grow to 30 billion by 2025. Not a surprising figure as any data created that relates to the litigation, regardless of the tool used to create it may be subject to eDiscovery. Every single cause of action has the potential of a literal mountain of information. Some of that information and attorney work product can be repurposed to improve the institutional knowledge base of the law firm if it is collected, stored, and available in meaningful packages.

Growth in corporate data stores along with high levels of corporate litigation is driving increases in corporate legal spending. As companies establish their eDiscovery processes and tools, they have an opportunity to drive down their legal review and data collection costs by making intelligent reuse of data and attorney work product across multiple matters.

The reuse of collected data and attorney work product are obvious tools to help reign in inefficient eDiscovery processes. Galaxy Discovery can provide corporate legal departments a comprehensive data and attorney work product cross matter reuse solution now.

Overview
In today’s corporate environment, electronically stored information (ESI) is accumulating at exponential rates creating huge collections of potentially relevant content that corporate legal departments must deal with when responding to eDiscovery or regulatory inquires. Relatively high levels of corporate litigation (for many industry segments) combined with continuing data growth are driving more costly, time consuming and complex eDiscovery cycles.

To complicate matters, corporate litigation can involve many of the same custodians and require the collection and review of the same content over and over again. For organizations with more active litigation profiles, the same content can be repeatedly collected, reviewed, and produced across numerous unrelated cases driving up the cost of discovery while lengthening the time to respond.

What if a percentage of that previously collected data and attorney work product could be reused across related or similar cases? Should content considered privileged or confidential in one case be considered privileged or confidential in other cases?

In many/most cases the answer is, yes.

Benefits of Data Reuse
The benefits of data reuse for eDiscovery include, reduced time and cost savings. The reuse of already collected data translates into lower overall costs due to savings from reduced collection and processing as well as end-user productivity savings due to less time needed collecting data.

Strategic Insights: Having early access to already collected data enables a faster and more meaningful ECA process to develop a "go-forward” case strategy. For example, early insight into the realities of the case can suggest a strategy of settling as soon as possible; thereby saving resources the company would have spent defending an unwinnable case.

Risk Reduction
Both the FRCP and government regulatory investigations impose pressures on the time allowed to respond to data requests. Many organizations have lost cases before they ever got to a courtroom due to an incomplete eDiscovery response. The advantage in shortening the length of time to respond to an information request can directly reduce the risk of non-compliance with an information request.

Reuse of prior attorney work product: Without a central collected data repository the ability to find and utilize prior attorney work product is more difficult and time consuming, if not impossible. A standardized collected data repository will enable attorneys to search across multiple case collections for relevant content as well as take advantage of already coded documents. This next section will outline the benefits of attorney work product reuse.

Benefits of Work Product Reuse
The benefits of work product reuse are dependent on a couple of factors; the amount of privileged and confidential content involved and case similarity. With completely unrelated cases, there will no doubt be very little reuse potential of responsive documents but privileged and confidential content will still have a high probability of reuse. In similar or related cases such as class action, product liability cases, and government regulatory actions, content has a higher potential of being responsive in the related case. For cases with attorney work product reuse potential, benefits can be realized.

Faster eDiscovery Response Time
Calculating the time saved during the data collection phase is difficult because even though you may find some case related data in an existing evidence repository, you still need to go back to all possible content locations to be sure you have found all relevant content for the case. When considering the advantages from an existing evidence repository, data collection cost reduction is less a measurable benefit than the advantage from quick access to relevant data for ECA.

The measurable time savings of work product reuse will be realized during the content review phase by reusing already coded content. For example, let’s assume the average legal professional can review and make a determination on privilege, confidentiality or responsiveness on 70 documents of content per hour. Let’s further assume that the case includes 1 million reviewable documents. At 70 documents per hour, the time to manually review all 1 million documents would be 14,286 hours or 357 weeks. If 20% of the document collection had already been reviewed and marked privileged and confidential for other cases, the total review-hours saved would equal 2,857 hours or 71 weeks.

Cost Reduction
The 2012 RAND Report titled, "Where the Money Goes,” points out the biggest cost component in the average discovery process (73 cents of every dollar spent) was the review of documents for relevance, responsiveness, and privilege. Add to that the fact that the amount of electronic data continues to grow driving up the cost of review. To address the rising costs of eDiscovery, the reuse of prior attorney work product can measurably reduce the growth of the cost of eDiscovery.

Higher Levels of Consistency
For many types of legal actions such as class action suits, product liability, and regulatory investigations, the ability to access and reuse attorney work product from similar or related cases will speed up the eDiscovery process but, as important, improve consistency across matters. For example previous coding decisions for privilege and confidentiality as well as prior redactions should not change. An accidental or inadvertent waiver of privilege where content is deemed privileged in one or more cases is not tagged as privileged in another can cause the content to become "in play” by opposing counsel.

Utilizing prior coding work can greatly reduce this risk of inadvertent disclosure of privileged content. Attorney work product produced from prior or unrelated cases within the same firm or legal department can be used for educational purposes to understand how/why previous coding decisions were made.

Early strategic insight (ECA): Immediate access to potentially relevant content is key to developing the best-case strategy going forward. The availability of a master evidence repository provides the instant access to get started saving valuable time as additional content is collected from the enterprise. This faster ECA capability provides earlier insight so that an informed case strategy can be created.

What to Look For
To fully realize the time, cost and risk reduction advantages from effectively reusing data and attorney work product, the right eDiscovery tools must be adopted across the entire organization.
Capabilities to look for include:
A centralized collected data repository – as potentially relevant data is collected for different cases, a secure, centralized storage area needs to be utilized so that as different or new cases come into being, this already collected data can be automatically searched as a matter of the eDiscovery process.
Automatic deduplication of collected data to save storage space as well as review time.

A repository index so that new searches can be conducted quickly.

The ability to create and manage large numbers of both related and unrelated cases with case specific security measures.

The ability to create and manage both local and global tags.

The ability to search on global tag designations across cases.

The ability to provide full repository reporting.

The ability to provide conflict alerts so that privileged or confidential content is not inadvertently miss-tagged or released to unauthorized personnel.

Best Practices for Data and Work Product Reuse:
Develop an executive sponsor
Choose a process manager early in the project
Create a standard eDiscovery process that includes data and attorney work product reuse
Evaluate similarities: dates, common custodians, common criteria
Concern: is the process repeatable and defensible?
Standardize on a tool(s) that effectively incorporate data and work product reuse by default
Train affected employees on the process and tools.
Create a central evidence repository.
Force the use of central data repositories and standardized eDiscovery tools.
Establish a process or clearinghouse for all eDiscovery data requests.
Apply IG practices to all data repositories (retention/disposition).

Without a major change in the way companies manage their electronic data, eDiscovery will continue to consume large amounts of corporate resources. In the short to medium term, companies can control their eDiscovery costs by adopting data and attorney work product reuse processes and technology to both reduce costs as well as risk.

To learn more, please contact Kayvan Vojdani of Galaxy Discovery at at kayvan@galaxyla.com