Jones: The era of DIY e-discovery is here

By Brian S. Jones

As we emerge from a long period of Zoom meetings, depositions, hearings and even trials — all of which largely involved lawyers doing things themselves — we’ll soon find out whether the technology we used during the pandemic becomes a permanent fixture in our practice.

There are far too many ongoing changes to the legal practice to discuss in just one article. But at least when it comes to e-discovery, I’m hopeful the trend of do-it-yourself e-discovery is here to stay. What do I mean? Let me explain it this way. I started practicing law in the early days of e-discovery, and despite how amazing they seemed at the time, the first e-discovery platforms were hardly DIY. Instead, they required a significant amount of support just to keep them running. That led to the rise of litigation support specialists who were tasked with ensuring that the data received from opposing parties was compatible with the platforms used by their firms, uploading that data into the firm’s platform, and then performing a series of sometimes complex and often indecipherable steps to make a document’s associated text, image and metadata appear correctly on screens. That process was both time- and cost-intensive — and all of it had to happen before the first document could be pulled up for review. Indeed, when the data from opposing counsel arrived, you had to send it off to the litigation support staff to handle the uploading and processing. It could be days, if not a week or more, before you could actually start the work of preparing your case.

What’s more, most document review projects in the early days required consultation prior to setting up the review environment, such as identifying which search terms and custodians would be prioritized, not to mention reviewer training sessions about how to use the review platform, which sometimes wasn’t the same as the platform used to manage the data. If you got halfway through the review and realized that new custodians or terms were more important than originally expected, that might require some serious retooling, or worse, a complete redo. And where was the data kept? It was on the firm’s servers and often only accessible on the local network. If you realized you needed a document while at an out-of-town deposition, you had to take a break, hope you got the litigation support person on the phone and ask for the document to be faxed or printed. If you got lucky, that might work. Otherwise, oh well. And if that server crashed or wasn’t properly backed up? Again, oh well.

My point here is not to complain about how “you kids have it so easy these days,” but to show that because of the way e-discovery platforms worked, the lawyers leading a case often had the least knowledge about what documents were gathered, the formats clients and opposing parties kept their data in, and how the review was conducted — all of which can be critical to understanding how to approach and try a case. It wasn’t ideal.

Thankfully, things are better now. Most major e-discovery platforms are now cloud-based, fast, lower cost and, most importantly, can largely be run by lawyers themselves. So, if you’re a do-it-yourself kind of lawyer, as most of us have been the past year or so, the era of DIY e-discovery is here.

My preferred platform for DIY e-discovery is Everlaw. It’s completely cloud-based, which means you just need a browser to use the platform; no installation is required. I can take documents from clients and opposing parties (in native, PDF or already-processed format) and upload them right from my computer — no middleman and no waiting required. Everlaw automatically analyzes the uploaded materials, extracts the text, gathers the required metadata and gets the documents ready for review in (almost) real time. So instead of waiting days or weeks, I can start reviewing immediately.

If I want to add another reviewer, it’s just a matter of inviting them through email; there’s no additional per-user cost. Scaling up for larger reviews is instantaneous and at no additional cost. If, as often happens, we discover that certain custodians or terms are more significant than originally anticipated, we can change persistent highlights, codes and review parameters on the fly. The predictive coding models (there can be many) also update in real time based on input from reviewers across the entire database. The only fees for the service are hosting fees based on the number of gigabytes uploaded. Producing documents is just as easy as uploading them, privilege logs can be created automatically and there’s no additional cost for production. Like other cloud-based services, when new features are added, you get them instantly. There’s no paying for a new version every few years. It’s also incredibly fast, has a good looking and easy to understand user interface, and the security is industry-leading. Basically, if you can figure out how to share a photo on Facebook, you can figure out how to review and produce documents on Everlaw.

But Everlaw isn’t the only player in the highly competitive e-discovery market. RelativityOne, DISCO, Logikcull, Nextpoint and Exterro, among others, are doing some very interesting things. All of them work on any major browser on any device, so whether you’re in the office, at home, in a hotel, on an airplane or even in trial, as long as you have internet access, you’ve got access to your preferred platform. These platforms are also rapidly increasing the types of data they can review, which is helpful given how many companies adopted communication apps like Slack and Teams during the pandemic.

At the core of these changes is a focus on empowering the end user, which means lawyers can be at the center of the e-discovery process — which, in turn, should result in greater efficiency, lower costs and better outcomes for clients, which is what the whole point of legal technology is supposed to be. So if you’re looking to change how you run e-discovery, it’s now as easy as going online and doing it yourself.•

• Brian S. Jones is a partner at Bose McKinney & Evans LLP and is co-chair of the firm’s insurance group. Opinions expressed are those of the author.