The key is flexibility – starting with a strong baseline while adapting workflows to case-specific needs.
II. Mapping Workflows to Matter Type
1. Complex Litigation
eDiscovery in complex litigation presents several significant challenges, including managing exceptionally large volumes of data, responding to extensive discovery requests that span multiple databases and systems, and coordinating production efforts across numerous parties involved in the case. When facing these challenges, legal teams must balance multiple considerations and leverage appropriate tools to create an effective discovery strategy. Traditional linear review, where documents are examined sequentially, often proves inadequate for the scale and complexity of modern litigation. Instead, a more nuanced approach is required, one that adapts standard workflows to the specific demands of each case.
Early Case Assessment (ECA) serves as a critical balancing mechanism, weighing the potential scope of discovery against projected costs while providing early insights that shape case strategy. Building on this foundation, Technology Assisted Review (TAR) and AI-driven prioritization tools offer a balance between thoroughness and efficiency, allowing teams to move beyond linear review methods and allocate human review resources judiciously while ensuring comprehensive coverage of the document population. Defensible culling strategies represent another balancing factor, as they help teams navigate between the competing needs to minimize data volume and maintain procedural defensibility. Finally, coordination with opposing parties on ESI protocols requires balancing advocacy for one's client with the practical benefits of establishing cooperative frameworks.
The key to success in complex litigation lies in flexibility – starting with a strong baseline workflow while adapting to case-specific needs.
2. Internal Investigations
Internal investigations present a unique set of eDiscovery challenges distinct from litigation. These investigations are characterized by fast-moving inquiries requiring prompt action, heightened needs for discretion to protect sensitive corporate information, limited scope focused on specific issues or allegations, and relevant information often concentrated in small pockets across the organization's data landscape.
When conducting internal investigations, traditional broad preservation approaches may prove counterproductive. Instead, legal teams benefit from adapting their workflows to include more pointed collection strategies that focus specifically on relevant data sources rather than implementing sweeping preservation measures. This targeted approach maintains confidentiality while reducing unnecessary data processing costs and time delays.
Communication data typically forms the backbone of internal investigations, requiring prioritization of emails, chats, and messaging platforms where critical exchanges often reside. Advanced analytic tools can prove particularly valuable in this context, allowing investigators to quickly identify key players, communication patterns, and emerging themes without conducting exhaustive linear reviews of all collected materials.
A phased review approach represents another crucial adaptation to standard workflows for internal investigations. This flexible methodology enables teams to begin with focused inquiries into the most relevant data sources, then refine and expand their scope as initial insights develop. As the investigation progresses, workflows can be continuously adjusted to follow emerging leads and information pathways, ensuring resources remain concentrated on the most productive areas of inquiry.
By emphasizing these tailored considerations, legal teams can develop internal investigation workflows that maintain the necessary flexibility to respond to rapidly changing circumstances while still preserving defensibility and thoroughness in their approach.
3. Regulatory Inquiries & Government Investigations
Regulatory inquiries and government investigations introduce additional complexities to the eDiscovery process. These matters frequently involve strictly enforced deadlines, detailed compliance requirements specific to the investigating agency, and significantly elevated stakes with potential for substantial penalties or enforcement actions.
The processing and review phases require substantial acceleration compared to typical litigation timelines. Teams must implement streamlined workflows that maintain quality while dramatically compressing timeframes to meet agency deadlines. This often necessitates deploying additional resources and leveraging advanced technology solutions that can quickly identify priority documents while maintaining necessary quality controls.
Proactive engagement with regulators represents another key adaptation to standard workflows. Early and ongoing coordination regarding format specifications, scope boundaries, and production expectations helps prevent misunderstandings that could lead to supplemental requests or compliance challenges. This collaborative approach, while maintaining appropriate advocacy positions, often results in more manageable production parameters.
Perhaps most importantly, organizations can significantly enhance their response capabilities through proactive compliance measures implemented before inquiries arise. By establishing information governance frameworks, retention policies, and preliminary response protocols in advance, legal teams can dramatically improve their ability to pivot quickly when regulatory demands materialize.
Successful management of regulatory inquiries ultimately depends on developing workflows that balance thoroughness with urgency, adapting standard processes to accommodate the distinctive pressures and requirements these matters present.
III. Key Factors in Adjusting Workflows
Workflows can and should be adjusted based on data volume, timelines, client or case priorities and regulatory considerations.
Data Volume
When you have large volumes of data, it is critical to get through the most important data first so that you can escalate key documents. Prioritizing the most relevant documents enables the team to quickly grasp key case elements, develop strategic approaches, and accurately assess the stakes involved in the matter. The first step can be an analysis of unique documents to remove duplicates and get a smaller set of documents for analysis. Reviewers should focus on prioritized custodians and data sources for potentially relevant and key documents. In addition to prioritized custodians, a prioritized review utilizing tools, such as Continuous Active Learning (CAL), will bring documents most likely to be relevant to the forefront of the review. As key documents are identified, they can be used as a seed set for additional analytics and analysis such as clustering and finding similar documents.
While most eDiscovery professionals focus on how to handle large data sets, handling smaller data sets is just as important and efficiencies can still be realized. Just like with larger data sets, an analysis of duplicate documents can reduce the total review population. Additionally, using CAL to prioritize documents can make the review more efficient and speed up the end result.
Timelines
eDiscovery professionals know that timelines run our business. These timelines can range from distant milestones to court-ordered deadlines that simply cannot be missed. Knowing how to work with your data sets under tight timelines is essential to our business. When faced with tight deadlines in eDiscovery, prioritize by focusing on essential tasks, break down large projects by using the tools available to you to prioritize the review. These tools include email threading, inclusive only review, prioritized review of ranked documents, and reviewing a single instance of each duplicate.
Client & Case Priorities
There are new technologies that allow for faster review, but these do come with a cost. Collaborating with clients to establish a budget and evaluate the cost-benefit of advanced technologies fosters a balanced approach to cost, speed, and thoroughness in the review process Additionally, even in more traditional reviews, it is often more beneficial to use a smaller review team to focus on the issues of the case and learn the intricacies of the claims at a slower rate than have a larger review team and finish the documents more quickly. While the documents are being reviewed at a faster rate, the reviewers are not able to make some of the more nuanced connections in the documents with each reviewer taking a deeper dive into documents.
Legal & Regulatory Considerations
Ensuring defensibility and compliance with legal and regulatory requirements requires a multi-faceted approach that encompasses an understanding of jurisdictional requirements, developing robust data management policies, and implementing defensible and effective processes for data preservation, collection, and review. Using standard operating procedures within your organization allows for defensible and scalable processes for data review and management. eDiscovery professionals have a responsibility to stay informed about the laws and regulations within the jurisdiction they are operating, including understanding the data production, privacy, and retention requirements. Ensure that any technology that is being utilized for review complies with all legal and regulatory requirements within the applicable jurisdictions and uses acceptable security and safety protocols.
IV. Practical Takeaways & Future Considerations
As eDiscovery professionals know, technology is changing by the second. While eDiscovery professionals are obligated to stay up to date on technology, the key is to start with a strong baseline workflow. This allows you to remain agile, and adjust based on case type, data complexity, and legal considerations. It also allows new technology to be integrated into the workflow in a way that is defensible.
Emerging technologies, such as AI, cloud-based review, and automation in workflow adaptation, allow for eDiscovery professionals to parse through large datasets in a more efficient manner. However, these technologies can still be costly and do require a “human in the loop” for the review. Humans will still be utilized to validate the review. Looking forward, it is important for eDiscovery professionals to update their workflows in a manner that could include these new technologies – including learning to write prompts or staying up to date on technological updates. Understanding your organization’s standard operating procedure and having flexible frameworks for eDiscovery will allow for the organization or firm to evolve in response to the changing data landscape and legal requirements.
Conclusion
Standard workflows are a starting point, but effective eDiscovery requires adaptability. As legal data challenges continue to evolve, so too must our approach to eDiscovery workflows. By aligning workflows with the unique demands of each case, legal teams can optimize efficiency, manage costs, and ensure compliance.