Bradley Whitecap from Reed Smith talks about how lawyers and their clients risk falling foul of ethical obligations at various points in the e-discovery process. Bradley lists some of the most common missteps in this piece.
This got me thinking about some of the most common blunders we see in the industry, and with that in mind I asked some of my team for their take too.. Here’s what they said..
Klaudia Aliaj shared a common blunder that is made when experts don’t make use of analytics or culling techniques, such as email threading and identifying and removing standalone duplicates of attachments and CAL. All of these techniques can help both sides on review and will ensure no one is disclosing duplicate or unnecessary data.
Another one is when eDiscovery providers don’t work together to agree on the disclosure protocol or how to exchange information. Ultimately doing this upfront will avoid issues or delays at the time of disclosure and streamline the whole process.
Graeme Buller also added his thoughts on the incorrect application of analytical technology.
He explained, “we have seen opposing parties not a having a full understanding of how to use CAL and specifically how to interpret the validation results at the end of an AL review.”
He also commented that some parties try to use textual near duplicate identification as a way to cull or mass tag similar documents. He maintained that this needs to be carefully considered to ensure the similarity rankings are correct. Factors can include text size, document format (i.e., native or scanned hard copy), amongst other things.
Gary Foster shared that a common mistake from last year was not preserving data correctly. Likewise, he commented on the dangers of not indexing data correctly. As we know collecting data and indexing it is key, not least because data is paramount to ensure a fair trial.
Lawyers and their clients risk running afoul of ethical obligations at various points in the e-discovery process.