How COVID-19 is affecting e-discovery

In four Zoom calls last week, participants turned to the question of how COVID-19 has been affecting e-discovery. Some responses were expected, others were not so obvious.

One of the calls was a reunion of sorts, an impromptu gathering of nearly a hundred e-discovery folks once active in what most of us thought was a defunct Yahoo! Group, The Litigation Support List, that roared back to life on May 16. Second was the weekly Cowen Cafe call I discussed in my last post. Third came a meeting of the ACEDS Twin Cities Chapter, The Great (ACEDS) Minnesota (Virtual) Get Together. The final discussion took place as part of a planning call for an upcoming Master’s Conference webinar, Exploring the Next Generation of Corporate Communications: Managing Modern Data Discovery.

At some point in each call, someone asked a variation of “how do you think COVID-19 has been affecting e-discovery?”

Review has gone 100% remote

Some responses were predictable. Review has gone 100% remote, a topic I covered in a recent paper on Ricoh’s remote offerings, Remote Managed Review in a Post-COVID World. Providers said when COVID hit they moved quickly to remote review; they had no choice if they were to keep reviews going. Most providers pushed software to computers owned by the reviewers, with occasional unexpected challenges. Some reviewers, for example, had more difficulty than expected getting the software packages installed and running. Other providers shipped specially configured machines to the reviewers, an approach meant to ensure tighter and more secure control of the remote review process.

None of the reviewers expressed any appetite for monitoring reviewers via camera, via software that tracks keystrokes, or through similar efforts. Reviewers are licensed professionals, the providers said, and deserve to be treated as such.

Law firm personnel chimed in to say the transition and the process has worked well for them.

One bonus to remote review, from everyone’s perspective, is the new-found ability to draw from a much larger and more varied pool of reviewers. With geography no longer a factor, blended pool of reviewers can be engaged, combining less expensive reviewers from lower-cost geographical locations with selected reviewers from locations where review costs tend to be higher.

TAR gets a boost

Less predictable has been a rapid increase in the use of predictive analytics – TAR, predictive coding, or whatever you prefer to call it – reported by several providers.

Limited support trend can be found in the results of The Cowen Group’s Q2 Critical Trends Survey report, where 66% of respondents listed data analytics as their top technology priority for 2021 (the next closest response was at 37.5%) and nearly 75% of respondents said COVID-19 had accelerated their companies’ adoption of next gen technology.

The rapid growth in TAR use could be a coincidence, but none of the participants on the calls seemed to buy that theory. Although no one knew for sure why this is happening, a few theories were posited. The most plausible was that law firm and corporate attorneys, pushed by COVID to suddenly adapt to a range of technologies they previously had eschewed such as videoconferencing calls, as a result now were more open to trying yet other technology-based approaches.

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