eDiscovery Solutions: Why AI Isn’t A Magic Bullet

Comprehensive eDiscovery solutions begins with information governance.

As Artificial Intelligence (AI) continues to develop and improve, and as organizations continue to produce, collect, and store growing amounts of data, more and more legal and compliance teams are turning to AI to help them respond to litigation and regulatory investigations. In fact, AI has become essential in eDiscovery solutions, helping organizations sort through enormous volumes of Electronically Stored Information (ESI) to retrieve data related to a litigation, audit, or regulatory investigation. 

Yet many organizations are not aware of what data they have, where it lives, and how it is being stored. Without understanding this, an AI eDiscovery solution cannot be exploited to its full potential. 

Some organizations attack the eDiscovery process extemporaneously, never following the same procedure twice. Left unaddressed, this inconsistency can result in fines or legal trouble

No discovery is thorough if an organization does not have a firm grasp on its information and that can only result from management of documents’ lifecycles, which is the foundation of information governance.

Though AI has undoubtedly advanced, legal teams looking to improve their eDiscovery process cannot simply invest in software and expect all their problems to be solved. Effective, comprehensive eDiscovery solutions involve people, processes, technology, and governance.

How AI has improved the eDiscovery process

Typically, organizations use outside vendors to facilitate and conduct the retrieval of relevant documents based on the search terms and parameters legal teams provide. Because organizations continue to generate and store increasing amounts of data, AI becomes a key element in meeting tight discovery deadlines; manual efforts — that is, employees sifting through documents one by one, repository by repository — have long been supplemented by different kinds of AI. 

AI comprises various methodologies and tools, including Metadata analysis, Machine Learning (ML), Natural Language Processing (NLP), and Deep Learning, which can take much of the manual efforts out of the equation.

Using AI technology in conjunction with human review can also help show reasonable due diligence to the court or regulators, as exhaustive and complete searches for relevant documents can be overly burdensome and time-consuming. 

Further, manual efforts are subject to all the perils of human error, such as missing a significant piece of information because it resides in a location that is difficult to examine. This can be an email, an email attachment, an artifact in a long-term preservation repository, an instant message, or something on a personal device (BYOD), etc. 

This missed piece of information can be critical during an investigation or litigation. AI plays a vital role in assisting legal teams by scanning a broad set of applications and data in a relatively short time frame, finding related information wherever it lives.  Some of this information could live in places not easily spotted by human actors, such as a cell in a thousand-row, multi-tab spreadsheet. 

Some eDiscovery solutions can also automate additional time-consuming tasks like redaction. It is common to find documents with information that needs to be redacted before being produced. This can range from personally identifiable information (PII), payment card information (PCI), personal health information (PHI), proprietary information, or any sensitive, privileged, or confidential information that is not relevant to the case or investigation. Legal teams can use an AI tool to help search for the information that needs to be redacted. The technology will then automatically block it out, giving back valuable time to reviewers.

eDiscovery solutions should combine technology, human expertise, and information governance

Undeniably, AI has become an indispensable tool in the discovery process, scouring and analyzing terabytes of data in record time. AI increases efficiency, reduces costs, assists with categorization, and automates review and redaction. However, it cannot save an organization from the risks associated with poor planning, incomplete recordkeeping, and improper legal hold management, lack of expertise, or inconsistent procedures. 

If a judge or arbitrator finds that any discoverable information was lost, mishandled, or deleted, sanctions for spoliation could follow, resulting in disciplinary actions, fines, and other penalties. A comprehensive discovery strategy with repeatable processes can prevent poor outcomes, combining technology, human competence, and information governance.

A successful eDiscovery process is efficient, sustainable, repeatable, and automated. Legal teams must be able to prove that discovery was complete and that they were not arbitrarily deleting any information. 

Ad-hoc approaches  don’t yield comprehensive results. While AI can assist in automating processes and notifications to ensure a level of repeatability, the process can only be informed and evolved by the people who understand the ever-changing rules and regulations.  

Comprehensive eDiscovery begins with information governance

No discovery is thorough if an organization does not have a firm grasp on where the information lives, how it was created, who created it, who has access to it. Fundamentally, eDiscovery — using artificial intelligence or not — can only be conducted with a deep understanding and analysis of the document lifecycle, which is the foundation of information governance. 

Information governance is a central component of supporting eDiscovery, legal, and compliance teams, helping them respond to litigation and regulatory responses by ensuring they understand:

  • Where the information lives. This helps teams accurately retrieve data faster from the locations where it was being created and maintained, throughout the organization and in different business groups, jurisdictions, and countries.
  • Who created the information and who has access to it. Legal teams can speedily issue Legal Holds to employees and departments to make sure the information is retained, not disposed of.

Information governance provides oversight and controls into how the information is being managed in the long-term, turning eDiscovery from a reactive process to a proactive process. An operationalized information governance program can help make regulatory and litigation responses easier by:

  • Implementing policies and consistent, auditable procedures.
  • Providing continuous training for employees to ensure employees are aware of their responsibilities of handling and using the data in a compliant way.
  • Tracking the information lifecycle of a document through its creation, use, retention, and disposal. 
  • Understanding the legal, regulatory, and business obligations to retain and secure documents when legal holds are issued.

Without a cohesive approach to eDiscovery that begins with information governance, it is difficult to realize the full benefit of an AI platform. Only a coordinated investment in people, process, governance, and technology can ensure a holistic, long-term strategy for eDiscovery.

To learn more about how information governance enables comprehensive eDiscovery, please contact lynn@bernsteindata.com or visit us at www.bernsteindata.com.

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About the Author

Lynn Molfetta

Lynn Molfetta

An experienced financial services information governance specialist, Lynn has been responsible for global records management at American Express, Citi and Deutsche Bank, in a career spanning more than 30 years.

About MCBD

MC Bernstein Data helps companies achieve their objectives related to Information Governance, including data privacy and protection; regulatory, litigation, and consumer responsiveness; information security; acquisitions and divestitures compliance; records management; data licensing management; and operational efficiency.

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