E-Discovery Tools: Evaluate, Collaborate and 'Lawyer the Problem'

It’s hard to believe that after all the planning from Discovery Symposium 2.0 that it’s over. It was a very fast-paced, informative and fun two days. But now it’s time to recap – if it’s possible to capture in a blog post the back-and-forth dialogue from panelists to audience -- and figure out what we learned… and where better to start that the first session of the first day?

On the ‘Software Experience, Culling and Early Case Assessment’ panel, I had the pleasure of sitting on stage with Edward Efkeman from FedEx and the director of our E-Discovery Division, Richard Stout. Edward has co-chaired FedEx’s internal e-discovery initiatives for the last three years, and if you’ve been to a major e-discovery event, you’ve likely seen his name on the program. Edward and his FedEx colleagues have a great discovery model in place.

We had a lively discussion with a lot of interaction with and questions from the audience. The most important takeaway for me was a comment from Edward: “Don’t forget to lawyer the problem.” FedEx definitely walks the walk in this regard and their in-house team is incredibly hands-on and detailed-oriented. His point: it’s not enough to throw technology at a matter or process; it must make sense and it must still meet the legal standards of reasonableness, defensibility and good faith. This is wonderful advice that I believe gets lost in the noise of the thousands of technology tools, webinars, conferences and white papers that engulf us.

In the spirit of ‘lawyering’ the problem, we were also reminded that lawyers have been doing early case assessment (ECA) from the beginning of the profession… it’s just now they must use technology to help solve a technology problem, which is volume. One still must interview custodians, decide what’s in and what’s out, strategize, etc. Using technology to solve a technology problem is really the only thing that has changed, and when utilized properly certainly makes life easier. (There is also a good post on E-Discovery 2.0 surrounding the discussion of the interviewing process.)

So your software selection must be understood and used by your lawyers. It’s not good enough that IT is impressed with the technology; the lawyers are the ones who must understand how it works. And bringing the process in-house is not the only option that a corporation may consider, obviously. They can also partner with an outside vendor to help guide and staff the process, review and ultimately produce what needs to be produced.

Along with risk tolerance, these decisions also come down to cost and results. Cost savings are found in reducing the amount of data and then reviewing the remaining data faster. Content analytic tools, clustering, and improved search functionality have aided review teams to speed the process and thus save money. Good tools and consistent protocols also provide more reliable cost predictability, which has generally been lacking in the discovery world in most cases. Using experienced attorneys who understand how to use the full capabilities of a review tool helps with speed, accuracy and overall project cost.

Relationships – internally and with outside counsel, IT vendors and other service providers – are also keys to success in the discovery arena. Everyone must understand roles, collaborate and communicate, and problem-solve. These were consistent themes throughout DS2.0, actually, and success with the above factors leads to results that are difficult to top, the panel agreed.

We also discussed several specific tools and platforms. ECA platforms such as Clearwell, Lateral Data and Equivio, among others, were detailed; the number of companies that have started to use one ECA platform or another has risen dramatically in the past year; reducing up to 90% of the data to review will clearly open some eyes. Some have even tried various purported “all in one” tools, though the general consensus was that no one tool excelled in all areas of the EDRM. The majority of companies that have the resources to pull chunks of the EDRM in-house don’t seem overly concerned with the “all in one” solution – they want the right tool for the specific case or matter, or have identified particular tools that fit the majority of their work (or at least ECA and the review). Others find the idea of off-site hosting/processing very appealing, and along these lines the panel and audience discussed platforms and services that offer “seamless” use of multiple tools, but with no real consensus. Regardless of the path, it's always wise to "test drive" a tool or platform before making any decisions.

Another takeaway worth noting: since it’s the lawyers who must be able to use the tool, a vendor may have already lost the sale if its software requires a full day (or even a multi-day) training session to fully utilize and comprehend it. That time commitment just isn’t realistic in today’s environment, and it certainly doesn’t affirm the “ease of use” mentality that so many in-house counsel seek. Understandable, practical and cost-effective are what matter. Without those, the in-house lawyer will not even give a tool or platform a second look.

We’ll have more on our other sessions in the coming days.
 

E-Discovery is Trust and Commitment

There’s a very good post on Clearwell’s e-discovery 2.0 blog about the process of bringing e-discovery in-house, or more importantly some of the questions that need to be asked during that process.

One particular observation in the post stuck out to me: “…every company today, believe it or not, has an e-discovery solution in place.” This is very true. Many companies who must scramble or shift work around internally to address a pressing matter or who automatically send any and all litigation straight to outside counsel might not characterize their approach as a “solution” (more of a default mechanism, maybe), but it is a solution, nonetheless. From that point forward, the steps and questions laid out in the post are certainly good ways to look at the in-house e-discovery process.

The statement also juxtaposes another observation in the post about in-house departments going through the RFP process and seeking an “end-to-end” e-discovery solution. These two statements, in my view, are actually directly related. Many in-house departments are not equipped to handle any significant e-discovery work, so in the past they simply sent that work to their law firm(s) because they could physically handle the review of the documents (and were already handling case strategy). Now that the in-house departments are under incredible pressure to cut costs, they must come up with a different solution, but still don’t have the resources or time to handle it internally. They want a simple, straightforward solution that they can hand off and know it will be handled in a quality, cost-sensitive manner.

I believe this encapsulates one of the most challenging issues we face in the e-discovery realm today, one that our company has spent an inordinate amount of time addressing internally and that

ultimately helped us create the “end-to-end” solution that we offer. The issue is that there is no one-size fits all in the world of e-discovery. Every case is different. Sometimes a different review tool is needed; sometimes it makes perfect sense to use an early case assessment tool, sometimes it doesn’t; sometimes it’s better to bill by the hour instead of billing by the document, gigabyte or custodian. For us, the ability to offer flexibility was central in our end-to-end service – we’re not tied to one review tool or processing partner, we’re not tied to one type of pricing, we’re not forced to use anything because of previous business purchases, mergers or partnerships.

When simplicity and a straightforward approach are paramount, it boils down to two basic questions: 1) Is the in-house department truly ready to step away from the old way of doing things? and 2) Is the department ready to tell everyone involved, “This is how we’re doing things now?” Simply put, it is trust in the process and commitment to it.

If there’s anything that can be learned by those clients initiating the RFP process, it’s that there is an entire industry of e-discovery providers that eat, sleep and breathe these matters and share a focus on initiatives like protocol, effectiveness, cost reduction, knowledge retention, defensibility, litigation ROI, and dozens of other business-focused issues. In fact, many law firms rely on companies like ours to provide these services and focus to their clients. Only a little bit of due diligence on this front should ease any trust concerns an in-house department might have.

Then comes the issue of commitment, and we see this challenge every single day. In-house leaders are often in terrible predicaments when it comes to making changes in the e-discovery process, especially when they have become so accustomed to particular arrangements. But what we’ve seen time and again is that when in-house counsel sets the tone, works with its partners (including their law firms) to create a solution and a new e-discovery process is implemented, the results trump everything. At the end of the day, the ability to point to a better, more consistent process and to quantify cost savings and value are worth their weight in gold.

So while building an e-discovery process might seem like an arduous task, it really isn’t. It comes down to trust in your partners and commitment to your process, and the payoff on those fronts is significant.

 

The Document Retention Policy: A Tough One

As part of its ongoing series of discovery savings throughout the discovery process, Clearwell’s e-discovery 2.0 blog has a post up about document retention policies. This issue was a very hot topic at Counsel On Call’s Discovery Symposium 1.0 in May and panelists on our “Retention and Holds” session said it is one of the most pressing issues facing litigation managers today.

Attendees at DS1.0 cited several very specific examples of why they have a difficult time implementing company-wide document retention policies, including:

  1. Different departments within the company are required to hold onto different documents for different periods of time. While a corporate employee at headquarters can likely delete e-mails at any time, an engineer in a field office may need to retain documents for reference purposes, often for years.
     
  2. Some departments/employees do not have computers, so they have everything in hard copy form. The cost of reviewing these documents would be a considerable expense, and the company cannot simply dispose of the documents without reviewing them.
     
  3. How do you decide what to keep and appropriately define it so that everyone is on the same page? Try defining “necessary business records.” The scope of this phrase is often difficult to get one’s arms around and can be very arbitrary.
     
  4. The goal is to make the document retention process both “defensible and practical,” but questions linger about how to balance the scales between these two goals.

These challenges are independent of a company’s size; we heard the same issues discussed by both small and large companies. There were several companies that had implemented successful procedures, and a common theme was that their respective IT departments were running point on the process with support from legal and security.

Some of the solutions to these challenges – along with policies for litigation holds -- were discussed at length during DS1.0, summaries of which can be found here. We’re also looking forward to updates on the implementation of successful protocols from attendees during future discussions and at Discovery Symposium 2.0, and we’ll post updates as they become available.
 

Two Words For E-Discovery Savings: Less and Faster

There’s a very good post on Clearwell's e-discovery 2.0 blog, "How To Reduce Electronic Discovery Costs," that breaks out the discovery process into sections of potential cost savings. It’s a good overview and it’s evidently the first part of a series.

The post reinforces a few of the issues we’ve discussed here, mainly that to reduce discovery costs, you should focus on trying to review less data and review that data faster. There are a couple of recent examples I’d like to share that show just how much money can be saved in implementing this approach.

First, a client called with what seemed like a good-sized matter – more than 70 gigabytes of collected ESI that needed to be reviewed and produced on a tight deadline. The reality was that the data had not yet been processed, culled, or de-duped; so we immediately knew that there were opportunities to dramatically reduce the amount of data to review. The combination of the right technology (coincidentally, it was Clearwell’s early case assessment tool), the right hosting company and good project management paid off on that case. The original 70 GB was reduced to less than 5 GBs of data that required review – a 93% reduction. Our team of attorneys was able to complete the review of this data within days versus weeks and the law firm was able to meet its production deadlines at a fraction of the cost of traditional methods. Success stories such as these are very common when it comes to reducing data.

The other example is a client whose discovery we’ve handled for the last 12 months. We have project managers and several attorneys dedicated to their matters, and what we’ve seen is that with each matter that comes in the door, the process has become increasingly efficient. Because the review and quality control workflow had already been mapped out, and because the team was already familiar with the client’s data, and the project manager had established relationships with the company’s internal IT contact as well as the company’s preferred review software vendor, those usual start-up measures and learning curves are consistently avoided. The result has been a repeatable process, a shortened timeframe to begin the review and higher review rates once the review begins; in fact, review rates on the first matter were more than double what the company was accustomed to and have increased an additional 50% from the first matter to the most recent. The best result was that the client saved more than $1.5M during this handful of matters.

These examples show that if you have the right processes in place, the knowledge and expertise of the right technology, and the relationships with superior hosting companies and vendors, you can save the time and expense of reinventing wheel for every matter.
 

Recap: Software Decisions Good and Bad

It was clear from the onset that attendees were eagerly awaiting this panel, and that Mr. Efkeman, Mr. Lisi and Mr. Stout were the right attorneys to answer the questions before them.

There was great dialogue between the panelists and the audience, as many attendees were either currently in the software platform analysis process or considering purchases for their in-house dpartments.

Session II: De-dupe, Near Dupe and Being Duped: Software Decisions Good and Bad

Panelists: Senior attorneys from FedEx Express, Fidelity Investments
Richard Stout, Director, Litigation Support Division, Counsel On Call

Moderator: Dennis McKinnie, Executive Director, Atlanta, Counsel On Call

Summary of Dialogue
Themes: Review less data, and do it faster; Establish a good relationship between your legal and IT departments and ensure both are speaking the same language; Purchasing software is costly, and those decisions should be carefully considered, especially in an environment in which there is much consolidation currently -- but a purchase can save time and money in the long run; “Try before you buy.”

The panelists agreed that limiting the amount of data to review was paramount to containing costs. They spoke about the importance of Early Case Assessment (ECA) tools, specifically mentioning Clearwell and Trident (by Wave, a de-dupe/culling tool).

As ways to reduce discovery time and costs, Richard Stout (Counsel On Call) echoed the dialogue about reducing the volume of data to review and discussed how to review the data faster. Implementing the right technology and correctly managing the process are central; the volume of data to be reviewed can be reduced by implementing a Comprehensive Records Management Program (including an effective document retention policy), targeting the collection (searching key custodians, date ranges, specific terms), culling and de-duping data, and using ECA tools. Mr. Stout also mentioned companies with project managers available 24/7 as an important factor in selecting software.
 


The question of whether to purchase software was also discussed. While it was clear that every department’s needs and restrictions are different, the general consensus was there are some purchasing decisions that make sense. Clearwell was a very popular option among attendees. Mr. Stout stated that there is a lot of consolidation in the software business at this point in time – it is the fastest growing segment of the legal industry – so some might opt for a “wait and see” approach with many of these decisions. The technology is improving on almost a weekly basis, it seems, and new tools enter the market every month. The key, the panel and audience agreed, is having people who know how to use the software to its fullest capabilities; Mr. Stout stated that attorneys who know all the “bells and whistles” of a particular platform can ultimately save a client hundreds of thousands of dollars in efficiencies during a review (they review more documents per hour).

Some of the biggest mistakes cited by the group included not testing enough software and committing too early and not investigating (and therefore not implementing) the entire software structure selected.

One panelist mentioned that most, if not all, of the software companies will allow you to test their products for 30-90 days so you can see how it will work with your data. He said this ultimately became a big part of his “success” in software selection, or at least in purchasing a tool that is working well for his company.

The group also asked if anyone knew of a “good, end-to-end solution” currently on the market. While there are multiple tools that handle specific parts of the EDRM Model, there seems to be a need for a comprehensive tool. There was some discussion about particular platforms that are rumored to be coming out with more robust tools, but no one would site a particular tool they felt comfortable saying was good for all stages.

Early Case Assessment + Content Analytics = True Savings

We often hear about the most important factor in creating a cost-effective e-discovery review: the review rate of the attorneys. Without question, the use of a content analytic review tool has greatly enhanced the ability to increase review rates for attorneys who know how to use these tools -- by 3 to 10 times versus a linear tool.

This improved productivity goes directly to the bottom line and dramatically reduces the largest component of the e-discovery cost structure: the attorney reviewer expense. Content analytic tools also greatly reduce the manpower and duration required for review.

Here’s where people often get stuck: The upfront cost of using a content analytic tool is (usually) significantly higher than that of a linear review tool. But as many have discovered, those upfront costs are typically recouped many times over by the end of a case because of the efficiencies that are gained in using a content analytic tool. The additional good news is that there’s a way to decrease the upfront costs by culling the amount of data needed for the review. These early case assessment tools are equally, if not more important, to the bottom line.

Early case assessment software platforms (such as Clearwell, Metalincs, and Autonomy’s Aungate Investigator & ECA, among others) enable corporations and law firms to dramatically and intelligently reduce the amount of data that needs to be reviewed. These programs offer a sneak peak at the data at a fraction of the cost of loading for review with a typical content analytic tool. In addition to standard culling methods like de-duplication and file-type extractions, early case assessment tools provide a means to develop legally defensible keyword searches, identify key players in the litigation (or more importantly identify non-players), and allow for bulk coding of clearly non-relevant materials or potentially privileged documents prior to loading into the review platform.

A quick example: A company's initial collection totals 300,000 documents for review. Using an early assessment tool, that number is dramatically reduced through de-duplication (20%), excluding privileged documents eliminates (another 10%), performing a multi-phrase keyword search (25%) and identifying the responsive data set (70%). The final number of documents to be loaded into the content analytic tool: 48,600 (or just 16% of the original collected documents).

Common volume reduction achieved through an early case assessment tool is 70-80% (the companies mentioned above have case studies on their respective websites that detail even greater reductions). The point is clear: reducing the volume of data, combined with the increased speed in which it can be reviewed via a content analytic tool, is a winning combination for corporations and law firms seeking to better manage e-discovery matters.

It’s always fun to be part of a meeting in which the realization sinks in that not only will the work product be better, but it will save hundreds of thousands (if not millions) of dollars.