5 common eDiscovery challenges (and how to overcome them)

For many legal professionals, it can be a daunting task to remain on top of the latest eDiscovery developments. Over the course of the last decade, the field has been expanding, which has led to new avenues of both improvement and challenges. 

From my side of the fence, it is tempting to highlight the possibilities and opportunities that the continued growth of eDiscovery offers. However, from a legal professional’s point of view, the digital transformation within the legal profession can be a concern. Limiting risk and ensuring compliance in a data-driven corporate environment can feel like herding cats for many legal professionals. 

In this article, I’ll delve into five common eDiscovery challenges every legal professional encounters, and how to overcome them. Unfortunately, these issues aren’t the type that can be solved with one simple trick. I’d love to share the magic words that make budgets grow and data stores shrink, but I have been told that the world simply isn’t ready for that knowledge (yet?). 

Contents: 

1. Interdepartmental challenges
2. Resource constraints
3. Data Disparity
4. Data Growth
5. Juggling Responsibilities 

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1. Interdepartmental challenges 

One major change that the continued rise of legal big data has brought on is that legal can no longer function on an island. Though legal departments have always worked with other departments, such as HR, the digital transformation has brought on more and more new partners for legal professionals to coordinate their efforts with. 

The most prominent of these new partners is IT. As companies generate and store more and more data (we’ll get to that later), the way this data is stored, kept, and organized has become a key concern for legal. In order to remain in the know about what the organization is holding in terms of data, it is crucial for the legal department and IT to be on the same page. Together, these departments have to formulate policies for data retention, data preservation, and more generally, information governance. 

The increased overlap with IT also creates a need for a new breed of legal professionals entering into the legal department. Earlier this year, Gartner noted that data scientists are increasingly finding their way into the legal profession. In an era where legal can no longer do its work entirely independent of other departments. 

In spite of many changes to the set of responsibilities, protecting the business from legal risk remains legal’s raison d’etre. That core task remains unchanged, but with proper collaboration pathways set up, legal may be able to do more than only police compliance. 

2. Resource constraints 

According to Bloomberg, corporate legal departments are put into an increasingly uncomfortable bind. Budget cuts are widely expected, while workloads are rising. 

In some ways, the current predicament is of legal’s own making. Legal departments have, wrongly or rightly, a long-standing reputation of being conservative and unwelcoming of change. With the core mission being the limitation of risk and liability, the primary concern has always been to do that job as reliably and consistently as possible. That’s not an atmosphere in which new things are tried, or new ideas tested. Until fairly recently, that was the standard operating procedure: do what works, and if it doesn’t work, do more of it until it does. 

That is, of course, a very uncharitable interpretation of legal’s activities. The day-to-day reality of a legal department simply doesn’t allow for much room for experimentation. It is hard, if not impossible, to responsibly try something new when there are high stakes and deadlines to contend with. 

With manpower increases out of the question due to the associated costs, legal teams are now increasingly looking towards technology to help improve productivity. Indeed, Gartner expects legal technology budgets to triple by 2025, in spite of general legal budgets stagnating. In a different article, Gartner also notes the trend amongst legal teams to replace generalist lawyers with non-lawyer staff. This is partially due to the costs associated with employing lawyers, but also indicative of a shifting need in terms of skills, according to the article. “Advancing key improvement and innovation efforts will likely require a different set of skills or perspectives,” it writes, noting that employees who enjoyed a more traditional legal education may not be able to fill that need. 

As I noted in a previous blog, the COVID-19 pandemic was incredibly impactful in terms of tech adoption for legal professionals. Even the most reluctant legal departments were forced by circumstance to make fundamental changes to the way they work, inching their way towards digital transformation. Many found the transition a lot less unpleasant then they initially feared. With budgets tightening and manpower-based work unable to go any faster, technology seems to be the only way to meet the requirements of the job with the means afforded. 

3. Data Disparity 

In the good old days, potentially relevant information came in only one format: paper. Today, legal teams have to be ready to deal with a wide variety of data formats and types. With businesses making more and more use of social media, chat tools, audio/video, and other data-generating means of communications, beyond email, a wide range of possible sources of relevant information exists. Failing to ensure such types of data are available during litigation, carries the same weight as a ‘regular’ email. Spoliation of such evidence can lead to sanctions, as it did in Nuvasive, Inc. v. Kormanis. 

The ability to search and hold relevant information is non-optional. By making use of proper tools, more difficult data carriers can be opened and searched. If the information is not readily searchable, modern eDiscovery solutions can create such searchability by using OCR, machine translation, audio/video transcription, and attachment extraction. Legal Hold solutions can assist legal teams in managing the conservation of such information. At the same time, it is important for legal departments to remember that such solutions are not a silver bullet. Avoiding potential spoliation of evidence issues requires effort just as much as proper tools. 

As businesses across the world become more and more digitized, legal departments need to be aware of these new sources of data. 

4. Data Growth 

Perhaps the more visible challenge with regards to data stored by organizations is not the variety but the amount. Globally, data growth is expected to continue skyrocketing. For legal, this means more data to comb through, cull, and review every time litigation begins. 

As mentioned above, information governance is increasingly important for legal departments to put in place. As early as 2014, EDRM signaled legal professionals about the risks of so-called digital debris, noting that only about 31% of data held by companies serves any purpose. The excessive amount of data held isn’t only an issue because storage isn’t free: it also poses a security and compliance risk. “Generally, the longer an organization retains a piece of data, the less data that data will have, and the more risk it presents,” EDRM writes. By managing digital debris, this can be averted: “with unnecessary information reduced and valued information managed, exposure to risk based on regulatory obligations decreases”. 

To return to point #1 briefly, this is where interdepartmental cooperation is essential. IT and legal must work together to manage data bloat and ensure the organization at large remains safe. 

Automation is another way legal departments manage the growing amount of material to search. Even in a well-kept data environment, digitization continues to cause data growth. To see how automation helps legal teams cope with these growing mountains of data, read my blog on the subject here. 

5. Juggling Responsibilities 

All of the above leads to this final challenge, which is to balance the old and new responsibilities. No matter how many changes occur, compliance and risk avoidance remain the top priority. It’s easy to feel threatened by AI whenever some new statistic is published that shows just how much faster and accurate computers are when it comes to specific tasks. That’s not entirely necessary though. 

In 2018, a group of lawyers who were outperformed by an AI in a contract review challenge were ecstatic. The reason? Chicago-based attorney Grant Gulovsen explained: “Participating in this experiment really opened my eyes to how ridiculous it is for attorneys to spend their time creating or reviewing documents like NDAs, which are so fundamentally similar to one another. Having a tool that could automate this process would free up skilled attorneys to spend their time on higher-level tasks.”

Essentially, by using the tools available to them, modern legal departments can free up their legal professionals to do more valuable work. Rather than improving productivity, they eliminate the need for productivity to go up in the first place by taking away the repetitive grunt work attorneys usually waste their valuable time on. This allows legal to reposition itself from business blocker to business enabler.