Similarly, how your platform treats exception reports can have a sizable impact on the accuracy of your discovery process. Exception reports disclose the processing errors encountered when preparing data for review, things like unreadable or corrupt files, password-protected documents, and more.
A platform that makes exceptions clear and transparent makes it easy to identify and resolve any errors. Alternatively, a platform that forces you to seek out exception reports or buries errors under cryptic, overly technical labels, is doing you a disservice—making it harder to identify which documents you have access to and which you do not. And if a document is important enough to be password protected, wouldn’t you want to know that?
Then there are embedded files. These are “hidden” files that can be found in other documents, such as the database embedded in the pie chart in a presentation file. Embedded files can be present in any discovery project, but not every platform has the ability to handle them. Some do not extract embedded files at all. Others are inconsistent with them. For your search to be accurate and comprehensive, you’ll want to make sure that embedded files are accessible.
Of course, understanding these factors is incredibly important when selecting and using your own discovery software. But you also need to be aware of the abilities and limitations of your opponent’s software as well.
Know What Your Opponent’s Technology Is Capable of as Well
The discovery process is never one sided. The capabilities of your opponent's discovery software can be as impactful to the accuracy of your process as your own. For example, if you are requesting documents that hit for a specific search phrase or keyword, will the producing party’s review software be able to handle those searches successfully? It might not if the query is something like:
“20%” AND ("payment" OR "amount" OR "check" OR “pay”)
This is, as Ball explains in the webinar, a query he experienced in his own work. It was negotiated between the parties after significant back and forth. Only later did they realize that the percentage sign would not be recognized by the search platform used—meaning that many responsive documents could have been missed had the error not been identified.
One of the top pieces of advice he gives, Ball says, is to assess an opponent’s search tool.
For the most part, there's no great shame in using a tool with certain limitations. The shame comes from not knowing what those limitations are and failing to disclose them to the other side so that all parties, and the court when necessary, can set their expectations of what search can do to mirror the reality.
In order to find potentially relevant evidence, there needs to be a transparent process on both sides, though Ball recognizes that parties can sometimes resist providing insight into their tool.
The need to understand your opponent’s tool highlights another trend in discovery technology: both sides relying on the same tool. Now, we don’t mean the same dated, legacy software that was once the only alternative to paper-based discovery. We mean modern tools that make the discovery process quicker, easier, and more transparent. Indeed, one of the fringe benefits of looking in to an opponent’s tools is finding ones that may better suit your needs.
When both sides take advantage of these tools, they eliminate the need to fight over file formats, load files, and exception reports. They can have confidence in their knowledge of the platform’s capabilities, because it’s their platform too. And the actual sharing of documents can be almost instantaneous, reducing friction points in a process that is far too often filled with needless friction and delay.
When that is not the case though, legal professionals who want to ensure a thorough, accurate, transparent process will have some research to do—on the capabilities of their own platform and their opponent’s as well.