Ediscovery Trends

Trends in Ediscovery and Litigation Support

  • It’s a bit late for a LegalTech recap, but better late than never, right?

    Gabe Acevedo was covering LegalTech for the great Above the Law blog.  While that blog doesn’t usually focus specifically on ediscovery issues, this year they brought in an ediscovery pro to cover the event.  I’m not surprised that people like to tout the benefits of “the cloud” but back off when pressed for details.  There’s still the impression that the use of tech buzzwords will automatically translate to success in the legal field, which is obviously not the case.  In my opinion, there are still opportunities for the right technology team to come up with a great ediscovery product that is useful,  secure and “buzzword compliant.”

    The other big thing this year is the emergence of predictive coding.  While this technology has been around for awhile, it’s finally matured enough to be intergrated into some ediscovery products.  I’ll have  a roundup of litigation support products that implement predictive coding in a future blog post.

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  • When it comes to choosing litigation support software, there are a few options out there.  You need to assess what data you have (or could request via discovery), how you are going to analyze that data, and how you are going to leverage that data to better help your client.

    There is no one-size-fits-all solution for litigation software, and you have to make some important decisions when selecting an appropriate platform.  First, how much data will you be receiving and in what format will it be in?  If the only responsive documents are some emails, what format will they be provided to you in?  Can you just open and review the files through a native application on your computer?  If so, great!  But if some responsive documents are part of a complex specialized software package (for example, AutoCAD files), will you be able to review them properly?  You may need a litigation support vendor to convert those files to TIFF for you.

    Better yet, have those special files reviewed by an expert – converting documents to TIFF can eliminate the actual value of a file.  Think of what you use a spreadsheet for – you can have formulas in certain rows and columns, you can sort columns by any number of criteria, etc.  Now, if someone took away your computer and replaced it with a printout of that spreadsheet, try getting some work done!  That’s what happens when a heavy-handed solution is used where some precision is required.

    Another thing to consider with your litigation support software is how many people will be using it to code?  Factor in the cost of actually training people on how to properly use the software.  Too may times we have had to deal with users who only bothered to learn enough to get by, but when a deadline comes up, they need to know how to perform complex searches, bates number documents, endorse documents, and get them to the court by 5:00 P.M.!  Often, after the deadline has passed, that same user will come back and say “boy if I had known what this software could do earlier, I wouldn’t have needed to rush.”

    So with ediscovery software, there are many factors to consider.  Anyone who flat out tells you that XYZ platform is “the best” probably has limited experience with other platforms.  Each has its use and purpose, but of course, we all have our own preferences!

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  • According to Gabe’s Guide to Ediscovery, the job market for ediscovery professionals is about to heat up.  Does this mean I need to demand a raise or look for a new job?

    I wonder how the candidates are going to differentiate themselves from one another – experience is important, but so is the ability to use the right tools for the job.  Legal services and litigation support vendors will be able to leverage this ediscovery surge into more lucrative contracts that have dried up over the past couple of years.

    If the rise in work for ediscovery professionals continues, this may also lead to some traction on ediscovery certification efforts.  Considering the relative size and projected growth of the industry, it’s as good a time as any to start some sort of standardization for professionals.  Right now there are many diverse skill sets that ediscovery professionals have, but in order to move upward (or even laterally) within the industry there needs to be some sort of quality control over the workforce.

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  • In a recent post, Paul Easton discusses an article on the traits of effective Legal Project Managers.  It’s a nice read, and affirms what I’ve been thinking in terms of roles for legal project managers.

    First, there has to be methodology and documentation of processes.  As ediscovery rules change, PMs have to be able to adapt these new rules into their existing processes, and create new processes to accommodate new information.  If your legal project manager is unable to do this, it could mean they do not have a thorough grasp of what’s going on (or are powerless to implement changes).  If your PM has a good understanding of what’s going on, they will be able to offer quality suggestions for process improvements, and be willing to accept responsibility if something goes wrong.  The litigation support industry could always use more people like that!

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  • Early Case Assessment is becoming an important part of the ediscovery landscape.  Those who have thorough ECA practices will often see an increase in ROI on cases as analytics tools become more robust.  Proper ECA practices allow a law firm to plan strategically for litigation, in addition to reducing overall ediscovery costs.  While ECA is not a money-saving silver bullet in every case, there are steps your law firm can take to reduce overall cost while improving the quality of output.

    The first step is often to identify the key players in the pending litigation.  This is where you’re going to want to question key witnesses and construct an organizational chart of parties that may be involved.  With this data, you can better evaluate whether this litigation is going to be quick, or if you may need to dig in for a protracted battle.

    At this stage, you now have enough information to issue litigation holds for key custodians and be able to determine the potential scope of ediscovery.  Server shares, mail accounts, document management software, and backup tapes should all be evaluated for litigation responsiveness.

    There are further steps, of course, but at this point you should have a grasp of the amount of data that could potentially be involved in this litigation.  Additional steps will depend on the amount of data you have identified and collected, but you will likely want to load this into a document review platform (if the data set is small and is ready for attorney review) or into a tool with more robust features such as Clearwell or EMC’s Kazeon.

    Early Case Assessment is an important tool for reducing overall cost and better preparing you for litigation.  The longer you ignore tools and processes like this, the faster you will fall behind the ediscovery curve.

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  • Fulbright & Jaworski have released their 7th Annual Litigation Trends SurveyEDD Update has a few of the highlights, including the result that regulation compliance is becoming a chief area of concern for survey respondents.

    I also noticed that there are a high number of respondents that believe the Federal Rules of Civil Procedure should be pared down to limit the scope of electronic discovery in civil cases.  I have to generally agree, but I wonder what type of data should be off-limits for ediscovery?  If anything, I would like tape backups or other media that is not used during the normal course of business to be discoverable only if data was found to be intentionally or maliciously deleted.

    Of course, I’m still somewhat surprised that more firms aren’t employing social media to their advantage, but then again, I wonder how much of an advantage can be really be had in this industry.  For example, the exposure/usage of a Facebook group is probably minimal for a law firm, but that’s no reason to avoid having a simple blog on your website.  I wouldn’t be surprised to see some ambitious junior associates willing to write a few paragraphs every month on interesting legal topics, and it offers a stage for impressing senior partners.

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  • Quick news on the ediscovery front – AccessData and CT Summation are going to merge.  Summation iBlaze is one of the more popular document review platforms around, loved and despised by many litigation support professionals – it all depends on who you talk to and what coast you’re on.  CT Summation has other tools as well, such as CaseVault and Discovery Cracker.

    AccessData has typically been more focused on the data collection side of the EDRM model.  Their core business is focused on computer forensics and cyber security, but this acquisition allows them to expand a bit more into the ediscovery realm.  It will be interesting to see how they integrate their Forensic Toolkit (FTK) and incident response software into CT Summation’s review and processing platforms.

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  • In the process of litigation, it is sometimes necessary to conduct a full-scale document review.  Your litigation support vendor probably has a few ideas on how to approach such a large project, but the sticker shock can be a bit overwhelming.  Let’s look at what you’re really getting into when you need to budget for a document review project.

    The first thing to look at is how many total documents you have, and what your resources are expected to be.  If you have ten million responsive documents and an unlimited budget, then you can afford to pay attorneys to review them all by hand.  But if you only want the documents that are most relevant to your litigation, I’d recommend culling the data set through an advanced search platform.

    While the upfront cost for some vendors like Clearwell or Kazeon may be high, the long-term savings are there, especially for large projects.  You don’t need to hire 20 attorneys to sit in a room for months reviewing documents – not only can you reduce the overall volume of responsive documents, but you can also classify them much more efficiently than was previously possible.

    After your data set is culled down, you’ll want to look at a review tool that can handle what you want to do with these electronic documents.  If it is a small case, you may wish to review them locally, but if it’s a large case involving multiple law firms, you will need to make sure that the documents can be securely accessed online.

    I’ll offer more tips on effective document review sometime next week.

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  • Found an interesting post on the topic of knowledge management and records management.  The post makes the point that if you want to know where ediscovery is going, you have to look at how knowledge management functions.  All those cutting edge, collaborative tools like wikis, instant messaging, intranets, etc. is tomorrow’s ediscovery.  How are you going to organize a document review around a wiki?  Are you going to track when each change was made, and when each page was accessed?  Are you going to be able to pull old versions of an internal blog to look for hints of inside information in the comments?

    Most ediscovery review tools are focused on static documents – email, spreadsheets, PDFs.  But in businesses where knowledge and collaboration are critical to success, answering the “which party knew what information, and when” questions will be important to maintaining an aggressive stance when faced with the possibility of litigation.

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  • Apparently Kroll Ontrack suggests that applicants for Litigation Support Project Manager positions have PMP certification.  Curiously, they also would prefer those with a business-related degree to a computer science related one.  PMP stands for Project Management Professional, and proves that you are willing to spend several hundred dollars to add three capitalized letters to your resume.  And the company that hands them out – yeah, it’s called the Project Management Institute!  I believe you also must take classes from the PMI to qualify.  Don’t get me wrong – I’m not mocking those who have this certification, as it shows that they are willing to do things that other project management candidates are not, but this use of certifications certainly isn’t helping hire the best and brightest in the ediscovery field.

    The post also points out that Kroll would like their PM’s to have a bachelor’s in finance, not in computer science or any related technical field.

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  • The American Bar Association has created one of the ugliest charts I’ve seen that lists comparisons of document review software.  It’s difficult to compare the features of all these products, so this chart can be useful, but it could also do more harm than good.  Litigation support professionals know the value of the EDRM model, and this chart doesn’t really help you plan for litigation, but rather just react to it.  Nonetheless, it’s nice to have a side-by-side comparison of some of the various document review platforms.  The information in this chart appears to have been supplied by the lit support vendors, so take the info with a grain of salt.  There are a couple of review tools that I haven’t heard of before, so I’ll be looking into those a little more closely.

    Incidentally, the ABA does have a nice little Legal Technology area that caters to experts and newcomers to the legal-tech community.

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  • Often when you’re faced with a problem with your litigation support software, it’s tempting to blame the vendor, either the one who sold you the ediscovery software, or the one who provided the load file.  But before we play that game, remember that those vendors are there to serve you, so take advantage of them!

    Load files, for example, come in many different shapes and sizes.  Summation load files in particular can be problematic, and every law firm handles Summation databases differently.  Be sure to specify to your vendor what fields you want included, how you will load full text, and how you want the images for your documents numbered.  Summation load files have changed over the years, and you can bet the vendor that provided the file to you is probably up on the latest litigation support technology, so be sure to ask them why they did things a certain way.

    Concordance load files are relatively simple, with separate files for the images, metadata, and fulltext.  This makes problems relatively easy to troubleshoot.

    The point is not that one document review platform is better than another, but rather that your ediscovery vendor is probably very familiar with the software that they provide load files for.  If you’re having trouble, be sure to ask them for help – most vendors will do almost anything to retain a client!

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  • Here’s an interesting interview with Alice Burns regarding legal project management.  Litigation support jobs are certainly going to take on more of a project management role moving forward, as lawyers are willing to sacrifice a bit of control in order to practice law (and leave the details to legal support staff).

    Alice Burns discusses her clinic entitled “Project Management for Litigation”, ediscovery and litigation support certifications, PMP credentials, the use of a Six Sigma framework in litigation management.  There’s also an interesting chart demonstrating the different roles that a project manager needs to play in the litigation support industry.  The chart also lays out different responsibilities for different roles on your team – what paralegals should be doing, what internal lit support should be doing, what should be outsourced to vendors, etc.

    While the post doesn’t mention ediscovery specifically, it’s a good primer if you’re looking for some insight into the complexity of litigation in today’s world.

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  • Ajilon and Fios are teaming up to create a new ediscovery services partnership.  They are to be a start to finish solution, though according to the EDRM, it looks like they don’t address digital forensic collection.  That’s the only complaint from me – litigation support costs can be reduced by combining document review services with more traditional litigation support services.

    Forensic collection still needs to be addressed in this scenario.    While some litigants don’t have the need for a permanent solution and can address this on a case-by-case basis, in the long term a dedicated document management system will prove to save money.

    Project management will be another important piece to the Ajilon/Fios offering.  Overall, this is smart play in this market and I expect to see more mergers of complementary services in the coming months.

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  • I’m amazed when I hear the stories from document review attorneys.  If it’s not an “80 docs per hour” mandate, then I hear “but NONE of these documents are relevant”!  A little bit of litigation technology can go a long way, reducing your overall review costs and getting back to the legal issues at hand.

    First, ask yourself what the scope of the ESI collection was.  Are you going to pay a contract attorney to review every document in your set?  Their time (and your money) is better spent if you prioritize dates, custodians, and filetypes first, so they’re not reviewing an entire mailbox full of calendar appointments before they know what’s relevant.

    Early case assessment tools can be deployed to cut down on the overall review load.  The metadata extracted before the eDiscovery process is very critical in order to use early case assessment software.  Too many law firms go right to offshoring or outsourcing, which drastically impacts the quality of document coding.  Instead, ask your litigation support personnel about how you can save money and actually improve the quality of your coding at the same time!

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  • When making a decision on whether or not to outsource an ediscovery job, there are many questions you may wish to ask yourself.

    Accurately assessing the volume of ESI to be reviewed is crucial.  Can your litigation support team manage the workload and properly leverage your internal ediscovery solution?  What resources will opposing counsel be using?

    After answering those questions, check out the EDRM model.  Where is your firm in this stage of litigation?  Are you in an early phase – forensically preserving and collecting documents, or are you looking for a solution to search and cull documents?  Maybe the overall volume of ESI is small and you’re looking to review documents, or ready to produce them to opposing counsel.

    As the linked article says, there is usually a need for balance in ediscovery.  It’s important to stay on top of new technologies in litigation support software – this area is always changing and efficient vendors can emerge quickly.  Consult your legal team about their needs for each particular case so you are on the same page.

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  • According to research done by TREC, keyword searches are largely ineffective at locating key documents.  Best practices include working with opposing counsel to identify key terms and dates.  Finding a proper date range can easily pare down the documents that you will eventually pay a contract attorney to review.

    Coming up with good keywords is also a high priority when asking opposing counsel to search documents.  If your keyword list is too broad, you will return far too many documents (and possibly be seen as overly burdensome), and if your terms are too narrow, you’re not going to find that smoking gun you’re looking for.  Try to think of reasonable a minimum and maximum number of documents that would be acceptable to review, given the scope of the litigation you’re facing.

    Don’t be afraid to go back to opposing counsel to modify your request for production of documents, but be sure to properly review the existing documents you have.  You don’t want to ask multiple times to expand the scope of production, so be patient with the document review process before doing anything drastic.  Of course, check in with your litigation support staff to see if there are any ways to more quickly and effectively search the documents you already have.

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  • There is litigation support software for nearly every stage of litigation. Litigation software can help you identify, preserve, and collect important data. Legal software such as LAW or IPRO can also help you cull down these documents. Litigation support services provide a wide range of ways to review and code your electronic documents. Concordance and Summation are two of the top document review platforms today. Many of these software services are becoming web-based, so contract attorneys can review documents from anywhere in the world.

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  • Welcome to Ediscovery Trends, a new blog discussing electronic discovery and litigation support.  This blog will review the latest trends in litigation support software, ediscovery, and document review platforms.   We will also discuss a few basics in digital forensics and electronic document collection, as both are an important part of any litigation strategy that involves ediscovery.

    There are many other trends in ediscovery – feel free to email me any topic ideas you might have.  Litigation support is a growing field and should be an important aspect of any overall litigation strategy.  Many firms are now using document management software to monitor and review documents for responsiveness, so this is a topic which will be addressed as well.

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