In 2012, a Rand study estimated that the cost of eDiscovery alone, based on data volume, was about $2.3 million per case. Back then, an average civil case in the United States had about 6.5 million pages of data — enough to fill 100 pick-up trucks.
In the decade since, thanks to better cameras on our smartphones, more communications apps like Zoom, and a move to remote work for legions of organizations that never planned on doing so, the size of that fleet of metaphorical pick-up trucks has surely tripled, especially those carrying audiovisual files. Not surprisingly, audio and visual data has become one of the biggest challenges for eDiscovery today.
But the volume of audiovisual files isn’t the only problem that data poses for eDiscovery.
Reviewing A/V data requires many more resources than reviewing text. And good luck if you aren’t able to search the transcript for words that are relevant to your document review in the first place...
In this article, we’ll discuss the key challenges of audio and video discovery, the best practices for conducting eDiscovery on audiovisual data, and how to choose the best software to handle this type of ESI.
Key Challenges of Audio and Video Discovery
Sifting through mounds of A/V data without the proper technological reinforcements is a tedious, time-consuming, and costly undertaking that brings with it key challenges you and your team need to be aware of.
Challenge 1: The Volume of Data Makes Audiovisual Discovery Burdensome
With voicemails, social media videos, Zoom recordings, audio or video notes, and more, the amount of potentially discoverable audiovisual data is astronomical and growing by the day.
Additionally, for large corporations and other data-rich organizations, discovery can trigger a plethora of processes. The in-house team (with perhaps some help from their outside counsel) will have to initiate litigation holds, identify custodians and repositories, evaluate and bring aboard vendors, and work with those them to analyze data, cull documents, perform audio redaction procedures, etc. The volume of information and work that go into visual and audio discovery is immense, which is what makes it an expensive proposition.
The drain on time and resources is so much that many litigants have tried to challenge as excessive their burden of producing and reviewing A/V data and other electronically stored information such as Slack. However, the case law on the subject makes it clear that courts consistently rule that the significance of the data outweighs the burden of discovery.
Challenge 2: Converting Audio and Video Files into Searchable Formats Is Expensive
Collecting, processing, and reviewing text documents is expensive enough. But converting A/V files into text documents that can be searched and reviewed will often come at an exorbitant price that, quite frankly, some companies and law firms will be unwilling (or unable) to pay. That could put them at a huge disadvantage in litigation.
Let’s say you receive a discovery request where the primary sources of ESI are voicemails. After you’ve identified and collected the information (which is a significant task without the proper systems in place), you find you have more than 15,000 voicemail recordings to review.
If your review team didn’t use transcripts, they’d have to listen to each of the files to find the relevant information. With a review rate of 25 recordings per hour billed at a reduced rate of $40 per hour for contract reviewers, nearly 600 hours would be spent on review, and you’d have a $24,000 bill for it. If you had associates billing at $300 per hour doing the review, you’d be looking at around $180,000 just to review these recordings.
If you want to use transcriptions to speed up the review with searchable text, but without technology that automates the transcription process, you’d have to pay for an external transcription service that would charge an average of $1.25 per minute. Assuming these voicemails are two minutes long on average, you’d end up paying $2.50 for each transcribed recording. Your total bill for all 15,000 recordings would be a hair shy of $40,000 for just the transcriptions! This expense doesn’t include the actual review of the text of these recordings that would still need to take place.
Challenge 3: Cybersecurity and Procedural Challenges
While monetary and time concerns are tough challenges in their own right, they aren’t the only ones litigants and their outside counsel have to contend with when dealing with A/V data in discovery. Additional challenges, such as potential security risks, liability, and court sanctions, can do more damage to a litigant’s bottom line than having to bear the cost of paying some invoices.
Sending data to vendors, for example, is innately risky. What if your data doesn’t arrive to your specified vendor? What if it’s intercepted in shipping or amid file transfers? What happens if sensitive A/V data gets in front of the wrong eyes or ears?
If it did, it could cost you and your organization a lot of money and customer/client goodwill. (According to IBM, companies lose an average of $4.2 million in profits with each data breach they suffer.) As the nature of eDiscovery lends itself to the collection of relevant, sensitive data in one convenient place, eDiscovery that is undertaken without proper safety measures could be wrapped up with a bow of sensitive information for hackers lying in wait.
In addition, law firms and companies that don’t have the right security systems in place may be setting themselves up for liability should a cybersecurity breach occur. Although third-party vendors are contractually obligated to keep your data safe, if a breach occurs, liability could still fall on a litigant. In 2017, that happened to Verizon when the company was held responsible for ESI leaked by one of its vendors that caused data from 14 million users to be exposed.
Moreover, producing A/V data through a vendor takes nearly 60 times longer than when using a cloud vendor. When you miss discovery deadlines, your case can get delayed and you may have to deal with the ire of opposing counsel and an unhappy judge — and you may even be sanctioned.
With the increase of eDiscovery and technology solutions for it, judges are growing increasingly less patient with lawyers who mishandle discovery obligations because they know technology exists to facilitate the process.
Best Practices for Conducting eDiscovery with A/V Data
Solving the problems in complex document reviews caused by A/V data can be simple. With eDiscovery software like Logikcull you can fine tune the review and production process of your A/V data, saving you time and money while increasing the defensibility of the entire process.
Some discovery solutions include built-in transcription features that cut out unnecessary third-party costs and speed up the review process. These features provide automatic transcripts of audiovisual files as the software ingests the information, which means that the content of those files becomes searchable.
Logikcull also incorporates VoiceTouch technology to its A/V feature, which lets you click on a word or phrase within a transcript to jump to that specific part of the A/V file. This way, you can watch/listen to the context in which the words were used to note the human elements that were present, such as tone, intention, and reactions. An optimized search and review process for A/V data with the help of eDiscovery software would look like this:
- You have transcriptions at your fingertips. After collecting your A/V files, instead of finding a company to transcribe them for a pretty penny (see the hypothetical costs above), you can utilize your eDiscovery software to transcribe the data automatically as you upload it to the platform. No more waiting and paying hefty fees — your transcribed documents are instantly ready for review.
- You cull your documents. Culling your documents is simple and allows you to decrease the number of files in your virtual review pile. When culling your A/V data, you might consider filtering by date ranges, keywords, and other relevant details.
- You get context for what was said. Afraid you’ll miss the context by just having the transcribed documents? You can use features like Logikcull’s VoiceTouch feature to hear specific keywords when they were used, allowing you to catch the important human elements present during a conversation.
- You leverage advanced search capabilities. Keep in mind that audio transcripts are not always perfect. Lower audio quality, overlapping speakers, and background noise, among other things, may interfere with transcription. However, using advanced search capabilities within a platform can help you combat this. For example, a “fuzzy terms” feature will assist you in hitting keywords in multiple variations so you don’t miss important details.
- You optimize your search strategy. One way to do this is by considering homophones in your search. If you’re searching for a word that could be transcribed as a homophone, you’ll want to include that. An example is “logical” and “Logikcull.”
- You maximize your review efficiency. Using features like bulk redactions, annotations, and automated document version comparisons like Logikcull’s SimDocs feature, you will be able to more quickly move through your review without sacrificing its accuracy.
Choosing the Best Software to Handle Audiovisual Discovery
There are a lot of eDiscovery platforms on the market today, so you need to choose the best tool for your specific needs. If you currently have, or expect to have, legal disputes where many of the files produced in discovery will be A/V files, you’ll want a tool that has strong A/V functionality and culling capabilities, takes security seriously, and doesn’t require a Ph.D. to operate.
With so many options on the market, finding the right eDiscovery software or audio and video redaction software can be challenging. Word-of-mouth recommendations can play a crucial role in helping you narrow your options. Today, you can get peer recommendations at the click of a button via online reviews.
Also, be sure to compare audiovisual discovery tools by taking an in-depth look at the strengths and weaknesses of each so that you can better determine which platform is best for you based on the challenges you are facing with A/V discovery.
During your research, you’ll want to consider the following questions as you assess whether a particular platform can help you with your audiovisual discovery needs:
- Is there a transcription feature? If so, how accurate is it?
- Are transcriptions searchable?
- How straightforward is the process of review, video/audio redaction, tagging, and team collaboration on documents?
- Can it identify potentially privileged documents, corrupted files, or password-protected data?
- How easily can I produce A/V documents? How do I ensure those productions are secure?
- What is the total cost in software, time, and opportunity?
- How secure is the software? Does it encrypt data? In what countries does it store data? Is it compliant with regulations and standards within multiple sectors, including GDPR, HIPAA, SOC-II Type 2, and Privacy Shield?
Once you’ve conducted your initial research, give a few platforms a try. Many platforms like Logikcull let you create a free account without having to go through sales pitches and vendor meetings.
The Right eDiscovery Software Can Help Make Your Audiovisual Discovery Process a Smooth One
Discovery involving A/V files doesn’t have to be complicated nor expensive. With the right technology, legal teams can cut costs, time, and stress.
If you’re dealing with A/V files frequently in discovery, you likely can’t afford to skip the implementation of modern eDiscovery software into your collection and review processes.
Whether you’re looking for an end-to-end eDiscovery solution, audio and video redaction software, a secure storage platform, or something else, there’s a solution out there for you that can help you deal with A/V data in discovery in an efficient manner.
If you're interested in learning how Logikcull can help you solve your audiovisual discovery challenges, sign up for a free trial today.