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Strategies for Emerging Data in Complex Litigation

Oct 11, 2023

The goal of any organization is to conduct business, not prepare for litigation. So, when legal teams come calling with their eDiscovery hats on, tensions frequently rise. This situation is often further complicated by the required preservation, collection, review, and export of numerous emerging data types.

Managing the discovery of emerging data in complex cases requires specialized tools and procedures. Some common types of emerging data include:

  • Mobile data. The information contained in cell phones, wearable technology, pacemakers, and more.
  • Messaging data. Most phone, internet, and mobile-ready platforms and devices support short message data from apps like Facebook Messenger, iMessage, Slack, SnapChat, and WhatsApp.
  • Big data. With the proper technology, large data sets can be mined and analyzed to isolate specific behavior patterns.
  • Biological data. Genetic material is definable as data and “printed” in laboratory settings for use in litigation.
  • IoT data. Data collected and transmitted without human-to-human or human-to-computer interaction, e.g., Amazon Alexa, Apple Siri, and Google Nest.

Despite the apparent challenges of handling these and other diverse data types, some effective strategies for managing emerging data in complex litigation exist.

Data Standardization

Digital transformation frequently starts with data standardization – converting dissimilar data sets into one consistent format. Data standardization is simply the unification of information within an organization to the same format or caliber. It can apply to file types, naming practices, program usage, or other areas of the workflow.

Standardization requires the use of sophisticated technology. For example, mobile data was previously reviewed using an Excel spreadsheet with each text message on its own line without much context – no emojis, gifs, or reactions – to tell the complete story. As technology has advanced around how mobile data is collected, processed, and presented, courts have also standardized mobile data preservation, collection, and production.

If an organization is not confident that its data can be easily exchanged and read through multiple systems without causing confusion or quickly shared without creating duplicates or omissions, its data standardization policies may not be as complete as they need to be.

Data Mapping

Questionnaires, custodian interviews, and other discussions are often helpful in developing a map of the data sources relevant to the litigation. A data map will assist in confirming that all relevant data is preserved and also help with the overall data collection process. Here is an example of a simple data map:

Source: JD Supra

When eDiscovery begins, one of the first steps should be to conduct a review of the organization’s data map to understand the relevant data sources and where they can be found within the organization’s data systems. It is also important to treat the data map as a living document, updating it regularly to reflect the most up-to-date state of the organization’s systems.

Proportionality

The ever-expanding volume of information, especially ESI, makes what was previously the acceptable scope of litigation now hugely expensive. Proportionality, rightsizing the effort in the discovery phase of complex cases, often reduces unnecessary eDiscovery costs. Regarding eDiscovery, proportionality requires a global cost-benefit analysis during which the court weighs the importance of data against the burden of producing it.

Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, parties to litigation must conduct pre-trial meetings between the two sides to, among other things, develop a proposed discovery plan, including determining their approach to eDiscovery. To make a strong case for favorable proportionality, parties must understand their data, build strong collaboration across business units, and utilize eDiscovery software to enhance collaboration and streamline the process.

Data Centralization

A centralized data exchange platform is a document-receiving system personalized to case-specific needs in complex litigation. It facilitates the exchange, storage, access, search, and analysis of data and documents. Centralized data exchange platforms can eliminate duplicative work in complex litigation, reducing time and expenses for both sides as opposed to each separately managing their own document management solutions.

Centralized data exchange platforms are designed to manage data in complex litigation by providing an efficient and cost-effective solution. Users gain multiple advantages through a centralized platform, including at-a-glance visibility into discovery filing status, reduced costs through efficient data sharing, and real-time insight into case and claim trends and potential progress toward matter resolution. As technology has evolved, these tools have become a standard part of the litigation toolkit for successfully resolving complex matters.

Need a Plan for Managing Emerging Data in Complex Litigation?

CDS Advisory Services brings together leading advisors and technical experts to assist clients in the management of emerging data. Contact us today to learn how we help you meet your organization’s eDiscovery challenges.

About the Author

Nicole Guyer

Nicole Guyer

As Client Director at CDS, Nicole advises attorneys and ediscovery practitioners on managing electronic data through the EDRM lifecycle. She is passionate about developing sophisticated workflows and takes a hands-on consultative approach. She draws on more than a decade of eDiscovery experience to advise clients on advanced analytics and litigation support technologies to efficiently investigate data, cull data volumes and implement cost-saving solutions. Nicole has also managed large-scale document review projects and assisted with privilege reviews and privilege log creation. She is a Relativity Certified Administrator.

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