Inside eDiscovery

Is eDiscovery Flowering?

eDiscovery is a 21^st Century legal “big bang.”  Ushered along by (and in response to) the development of technology, eDiscovery exploded into practice as data overwhelmed clients, business interests flocked to meet emerging needs and the Federal Rules updated lawyers’ responsibilities. As quickly as we embraced dedicated eDiscovery professionals, products, process and punditry, observers and practitioners began to predict its “death.” However, rather than reflecting its decline, I would argue that “automated” technologies, data mining, information governance and an emerging big data philosophy are actually the results of a maturing eDiscovery market and practice. So, in honor of spring, what are the symptoms of eDiscovery’s descent and conversely, is eDiscovery actually flowering?

Vendor Attrition: Rather than a sign of the apocalypse, attrition in the legal services market is an effect of its dynamic character. Because eDiscovery was created and is powered by technology, its development has been fast-paced and exponential.  Rapid evolution puts immense pressure on lawyers and providers to meet market needs and to remain competitive. This constant churn and change dramatically impacts traditional capital outlays, the pace and expectation of development and the need for human resources. For this reason, we have all seen major players struggle to meet the pace and demands of the market. We have also seen business interests chase the dollar and herd toward “the latest” standard such as (from earliest to latest); processing, platforms, staffing, managed review, analytics, cloud, etc. seemingly without regard to strategic, long-term planning. Finally, from a large firm perspective, as eDiscovery has become increasingly more complicated (global clients, types of media, volume), one-stop shopping is important and niche players are harder to justify (cost and security) and manage.

Efficient Technology and Scope: One of the ironies of successful development within a discipline is that it eliminates less efficient aspects and cuts its ranks. In early years, eDiscovery was one-dimensional in its approach and focused on gathering data, staffing and linear review. The development of more sophisticated technology through analytics has not only improved quality and speed but has widened the scope of institutional data management to include emerging holistic approaches like information governance. In short, a steamlined process is a downsized industry.

eDiscovery as an Integrated Practice: We will see greater integration of eDiscovery into the individual substantive practice of lawyers with diminishing need for dedicated eDiscovery personnel. The FRCP and Model Rules for Professional Conduct have been strong catalysts for consolidating eDiscovery into modern practice as technology pervades. Also, a new generation of attorney is rising into leadership. These tech-savvy lawyers matured into practice with eDiscovery and better understand its requirements, strategy and process and are often able to manage the EDRM themselves with less guidance and support. (This integration does not preclude the development of substantive eDiscovery practices).

So, as some have described it, why is eDiscovery a “contracting market” and what does that really mean? To butcher a quote from the inimitable Mark Twain, “the reports of [eDiscovery’s] death have been greatly exaggerated” and I feel that the hand-wringing is largely a vendor perspective/concern as the market evolves. Advancement in the eDiscovery space will continue and it will become further entrenched in jurisprudence and procedure. The effects of “growing pains” reflect a maturing market that is flowering as it more fully integrates into practice and as legal services are measured for sustainable value and flexible technology solutions.

Inside eDiscovery Digest – Weekly Top 3

Must see articles for the week of April 7.

Here Come the Robot Lawyers - By James O’Toole. It’s not often that eDiscovery is highlighted in mainstream media. CNN Money published this article referencing Winston & Strawn eDiscovery evangelist John Rosenthal and harkening the widespread adoption of predictive coding and its effect on the ranks of law school grads.

Machine Learning and Law - By Harry Surden. Technology is affecting the practice of law and its processes and this recent Washington Law Review article does a “deep dive” into the technology and its uses.

Using TAR in International Litigation: Does Predictive Coding Work for Non-English Languages? - By John Tredennick. Meant to partner with my recent post regarding foreign language review available here, John’s article does a great job of walking the reader through the process and benefits of TAR along with exploring its use with foreign languages.

Inside Focus: Foreign Language Document Review

I would like to supplement the way that I present information on Inside eDiscovery with a new series entitled, Inside Focus. These posts will allow me to highlight specific eDiscovery subjects with bulleted lists of tips, suggestions, expectations and personal experience. I start the series with Foreign Language Document Review. eDiscovery that incorporates foreign language(s) is often challenging and expensive and it adds a layer of complexity that can overwhelm timelines, case teams, institutional resources and vendors. I have managed many foreign language matters (FCPA, IP and general cross-border litigation) and have acquired expertise where there isn’t necessarily guidance or support. The following topics are meant to serve as a high-level check-list of issues related to foreign language eDiscovery and review;

·         Cost – Review in a foreign language is far slower, rates for multi-lingual reviewers are far higher and collection/processing issues are far more complex. These critical components to the eDiscovery process may double or triple the cost of English language reviews.

·         Data Privacy/Jurisdiction – Privacy or other jurisdictional concerns may impact more traditional approaches to eDiscovery and require multi-jurisdiction review. Global partners (collection, processing, hosting, staffing, etc.) may be indispensable in coordinating international efforts.

·         Language and Client – Collaboration with a foreign/international client is more important than with English-speaking clients during the eDiscovery process. A client’s language and business expertise is meaningful when developing search terms as well as understanding terms of art and proper nouns, etc.

·         Management – Managing a foreign language review can be challenging if you are not language proficient because there will always be issues regarding verifying the quality of the work product. I recommend having a trusted resource to monitor the analysis or translation work. For large firms, you may have a language speaker in-house, the client may be a resource or staffing providers may have experienced language-specific project managers.

·         Review Platforms – It is important to fully understand the capabilities and/or limitations with specific review platforms and your language(s). Specifically, it is important to verify how languages with non-English characters are treated (particularly Chinese, Japanese and Korean).

·         Staffing – If you seek to employ multi-lingual review attorneys, it is critical to know their fluency and all candidates should be tested and you should know their fluency percentage. ALTA is a market leader in language testing and you may learn more at www.altalang.com. Under general circumstances, native speakers are preferred because they have broader cultural and business exposure.

·         Technology – Emerging technology like machine translation (MT), machine learning and predictive coding may be powerful options for your foreign language matter. Predictive coding and automated translation tools are evolving and creating opportunities for efficiency.  These tools, working together or separately, need to be thoroughly vetted and evaluated considering efficacy, product capability, cost and production requirements/agreements.

Is the Legal Technology Conversation Encouraging a Cart Before the Horse Mentality?

Jeffrey Brandt recently posted an article regarding why lawyers are slow to adopt emerging legal technology and he explores law firm inertia and the likely players who act to impede embracement of technology. The article is available here.

I wholeheartedly agree with Brandt’s underlying premise; firms need to modernize and evolve with the demands of practice. A competitive legal market paired with exploding eDiscovery costs necessitates that that the business of law constantly assess not only how it serves clients but also how it manages internal data. However, as I stated in my summary of LegalTech NY 2014 (available here), legal technology products aren’t created and don’t exist in a vacuum. Technology is powerful but, it is a means to an end and lawyers start with jurisprudence before partnering their client/strategy with a specific process or product.

Focusing on technology decision-makers in firms, Brandt highlights three “suspects” who may be roadblocks to quickly endorsing new products; lawyers, senior management and IT management. Reasonably, each of these cohorts has its own perspective. Expanding on Brandt's list, I would like to include the client as a critical catalyst in the law firm technology conversation. Clients are decision drivers. Client expectations can accelerate the adoption of new technology and conversely, can obstruct it because of cost, fear of the unknown, a lack of education, etc.

The technology equation in law firms is complicated. Layered on top of potentially competing decision-makers is an ever-changing list of priorities that spans one or more invested law firm demographics and includes (in order of importance);

• Versatility – For large firms with diverse clientele, products need to be versatile to fit large and small matters and linear review to predictive coding
• In-house versus Outsourcing – How do firms balance the flexibility and long-term cost of internal solutions with the advantages of up-to-the-moment resources where your costs are a la carte
• Cost to the Client – What are the fees associated with specific products and what cost sensitivities exist from single plaintiffs to financial institutions
• Cost to the Firm – What institutional costs are there (dedicated servers, bandwidth, computing hardware, etc.)? How does the cloud affect cost?
• Functionality – Incorporating the concept of versatility above, is there a “self-service” option, how customizable are interfaces, etc.?
• Cross-border Litigation/Investigation – What tools best support multi-jurisdictional, international matters and their associated issues (data privacy, liability, etc.)?
• User Experience – An intuitive, robust user experience (from document reviewer to back-end analyst)
• Institutional Expertise – Although being technology-agnostic is valuable, firms should be competent with all the products they employ to assure that they are meeting their responsibilities to the client
• Brand – Reputation and tenure in the market is significant. A vendor who has evolved with the market more likely proves itself as viable
• Customer Service – Often the vendor/client breaking point, the project management component of eDiscovery providers is an important variable.

So, in my opinion, lawyers and firms are slow to warm to technology because of the competing tensions in a professional organization where substantive practice and process converge. Law firms would be wise to create dynamic matrixes that combine players and technology priorities that guide a best practices approach to vendor selection.

Democracy and eDiscovery: Part 2

Association of Certified E-Discovery Specialists (ACEDS) recently published: A call to vendors to make e-discovery affordable for ‘The Other 85 Percent’ available here.

Christine Taylor does a great job of itemizing the issues associated with eDiscovery designed for the "1%." Christine's article partners well with my post Democracy and eDiscovery – Can Affordability and Proportionality be a Reality?  found here and originally posted in December 2014.

Is Your Data Corrupt? – eDiscovery and the Evolving Foreign Corrupt Practices Act (FCPA)

The global marketplace and increased international business exposure are catalysts in the growing instances of Foreign Corrupt Practices Act (FCPA) investigations and prosecutions. In plain terms, the FCPA is fashionable. A side effect of this growth is the explosion of international eDiscovery and the complications that follow suit…data privacy concerns, collection issues, experienced cross-border vendors, the challenges of foreign language review as well as sophisticated technology and workflow processes.

A recent report by the Texas Public Policy Foundation (http://www.texaspolicy.com/press/tppf-releases-reforming-foreign-corrupt-practices-act) explores the substantive issues with interpreting the Act and doing business in culturally-different jurisdictions. In addition to addressing the overall ambiguity in assessing business practices in other countries with a “blunt Western sword,” it also cites lost corporate opportunity as a secondary implication of the Act.

I continue to believe that FCPA-related discovery presents a huge opportunity for law firms and eDiscovery vendors because few providers or firms are effective/efficient resources for clients defending against anti-bribery charges. However, what is an opportunity for legal services is a huge drain on corporate legal departments and that should be a component of the conversation evolving in media recommending changes to the Act.

As legal practice and jurisprudence strive to balance litigation with fairness, remuneration and social/business integrity (e.g. history behind the amendments to the FRCP), current analysis has failed to consider the significant discovery costs associated with FCPA investigations. Carter-era macroeconomics was defined by a much-changed playing field where American, global, corporate giants could dramatically impact the intersection between mercantilism and diplomacy. Similarly, discovery requirements and costs have exploded in the past 20 years. Acknowledging the anti-American effect of bribery, FCPA investigations may need to evolve to “judiciously” balance cost, impact, fairness and economics.

Democracy and eDiscovery - Can Affordability and Proportionality be a Reality?

I have enjoyed getting to know Nextpoint's perspective and products via a great morning coffee with Jim Lancaster and through their Nextpoint Newsletter available at http://www.discoverycloud.nextpoint.com/.

In a pre-Thanksgiving post by Nextpoint's John Krause entitled, Low Cost eDiscovery: The Secret to Making Legal Services Affordable, I think that we see that Nextpoint is initiating a new conversation regarding the democratization of eDiscovery cost, affordability, and proportionality based on their cloud-based solutions. As John suggests in his article, these issues are quite relevant as FRCP updates are being considered.

I think that it is interesting to consider a few aspects of democratizing eDiscovery;

• Who benefits from "cost democracy?" Clients, firms, services providers?
• Is a "low-cost solution" an enterprise solution or, is it part of your solutions stable?
• Is the cloud a boon to small law or, is it more democratic than that?

Referring to my experience in large law firms, attempts to provide flexible eDiscovery options never completely satisfy all clients. Large law firms are often like hundreds of small firms under one umbrella. With each new client, large law firms are forced to calculate a new proportionality formula and capable, intuitive, and cost-efficient products could serve the single plaintiff or corporate monolith.

 

TAR: Table for One? - Subject Matter Experts (SME's) and Technology-Assisted Review (TAR)

John Tredennick posted an interesting article on SME's last week for Catalysts' "E-Discovery Search Blog" (http://www.catalystsecure.com/blog). The post link is below.

In the world of document review, training the reviewer (attorney team or algorithm) is critical to success. Working with 100's of case teams, I have learned that there is NEVER one SME. At any given point in the life-cycle of a document review, the attorney who is most expert with respect to the substance of a matter may change.

Immediately after collection, the expert may be the fourth year who "managed" the collection. There may be experts who are assigned to individual issues.  As a matter progresses, it is more likely that expertise may be found with a senior associate who is charged with managing the production relationship with opposing counsel, organizing depositions or preparing motions as the case develops.

In addition to it being unlikely that you will find one oracle at Delphi for your matter, I worry that the use of one SME encourages a very singular perspective regarding the crux of a case. Even well into a review, I have seen attorneys practically come to blows about review analysis/interpretation. In the realm of TAR, I think that it is most instructive to have 2-3 experts so that debate and consensus is encouraged.

For more detail, please enjoy, Subject Matter Experts: What Role Should They Play in TAR 2.0 Training?;

http://www.catalystsecure.com/blog/2013/11/subject-matter-experts-what-role-should-they-play-in-tar-2-0-training/