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.
 

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.