eDiscovery, a government regulation that mandates record of a business or agency’s electronic communication for presentation in case of court order, has catalyzed a need for dedicated legal research teams and qualified eDiscovery solutions. The ever-expanding data archives of modern businesses place an impractical burden on lawyers and their review teams who are now expected to filter through documents and E-mails at incredible rates, which just a few years ago, would have been unrealistic. The necessity to break down the relevant data and cast aside the irrelevant within pre-defined time frames places a lot of pressure on legal teams and provides additional eDiscovery challenges. That being the case, legal teams are often left with no choice but to rely heavily, and often times imprudently, on eDiscovery tools to ease the burdens of their research efforts.
Unfortunately, however, a large majority of eDiscovery tools used were not created with eDiscovery in mind, but rather, were intended to offer a simple method for sifting through a limited amount of documents. As a result, there are an abundance of issues that make eDiscovery a costly endeavor.
First, because of excessive time constraints, research teams are often tempted to generate keyword lists too early, before they understand the subtleties of the case and before they know exactly what is at stake. As with most cases, it is a constant race to the finish and researches want to be the first to get the pertinent information. As a result, keyword lists often include irrelevant listings and exclude relevant listings.
Searcher over-confidence is another problem. According to the Blair and Moran Study conducted in 1985, searches are often convinced that they have discovered 75 percent of the relevant data when in reality, they have only discovered 20 percent. Even when legal teams consider their efforts comprehensive, they leave many stones unturned.
Overly inclusive keyword terms bring back too many documents and make finding the relevant information impossible. It can be hard to pinpoint exactly what keywords to search for, and as a result, including too many is sometimes necessary, but nonetheless, costly.
By the same token, under-inclusive keywords can hamper a keyword search as well. Terms too specific for their own good filter out critical data and leave much to be desired.
Language is another barrier that hinders the effects of eDiscovery. Single-term words with many meanings can bring back hordes of irrelevant data during a keyword search because of their multiple meanings and can make finding appropriate information seem like looking for a needle in a haystack.
Conversely, many words with a single meaning can be just as daunting an obstacle when using eDiscovery. Because so many words can be used to express one meaning, identifying those exact words can be impossible.
Misspellings and abbreviations can also cause problems for eDiscovery. Even if a researcher has identified the correct word, any misspelling on his part or the part of words used in the document will render his identification meaningless.
Lastly, the use of code words in the documents in question can make discovering the desired content impossible. Often times, perpetrators who know they are doing something illegal or unethical will use code words to cover their tracks.
Clearly, when it comes to eDiscovery, human error and human nature make the compliance process mistake-prone at best. Without an efficient way to account for those human factors in a precise manner, the same issues will always place a limit on the benefits of eDiscovery.
What has been your experience with eDiscovery challenges and solutions? Were you able to find a tool that eased the process? What were some of the challenges to finding the necessary information? Please share your thoughts with other readers.