Many pointed out that expertise in the field has come a long way, and that today it is crucial to rely on staff that knows what they are doing as the stakes are just too high.  To me, the most dramatic change was that most of the corporate legal departments and law firms we met with are now focused on how the data is processed, the workflow, and the underlying processing software.  This is certainly a shift from previous shows.  More lawyers are more concerned about what happens to their data during an ESI project.  The focus has been traditionally on collection and document review, but many now understand that in order to do a successful review, the mandate is to understand how data is being processed and then reducing potential review collections during the early case assessment period.  This ultimately reduces the overall review costs, decreases the time to production and more importantly allows the legal team to understand their data more completely prior to production.

This theme was reinforced during our presentation to the CEDF (Corporate eDiscovery Forum) attendees the day after Legal Tech.  Our presentation “Fact or Fiction:  ESI Complete Processing is Important”  generated significant dialogue with the corporate attendee as they do believe it is one of the key components of a successful project and not another commodity service.

Until next time,

Dave

I’m looking forward to a few panels – especially those are going to address Project Management, Validation Sampling, Automated Review and new trends.  It’s always intriguing to hear the different perspectives between vendor and law firm or corporation – especially hearing what’s important to different people.  There is always something to be learned by paying attention to exactly that. 

As for us we are really looking forward to introducing the next generation of Exego, Exego3, our patent pending ECA platform.  Although Exego has been a mainstay since 2009, we are constantly looking for ways to make our clients more efficient and productive. 

A little about Exego3  – we built several new features and advanced capabilities to further validate and streamline the ever-growing searching challenges.  We’ll be demonstrating Asynchronous Searching (the ability to submit searches and keep working while those multiple searches run in the background), Enhanced Meta Data Search Tools  (allowing the easy construction of queries across large numbers of metadata fields; and Validation Through Random Sampling (allowing the user to sample against non-responsive documents, as well as to apply sampling techniques to quantify the effectiveness of search terms very early in the case).

Hope to see you there. 

Dave

This a logical approach on how to handle ESI discovery.  In order to make this work however, there needs to be more focus and education on how data collection, early case assessment review, and document review affects a smarter method in production of a data set.  The use of technology will play a defining role through:

1.      Targeted data collection.  Understanding the custodians and what data they have and where it is located could result in smaller data sets.  As I have written in the past, the legal team needs to understand their custodians by including the business owners, IT professionals and document management staff on the client side.  Creating a comprehensive interview form with this team will help the custodian and legal team identify the location of data and its potential relevance.

2.      ESI Processing.  Complete processing of the data sets ensures that ECA and document review that follows will be able to identify those documents that are important for the legal team’s focus.   Processing is not a commodity, and should not be seen as such, since it will directly affect the outcome of subsequent review.  If the data is not processed correctly and is not available to review, then this will, more than anything, affect the outcome of a case.

3.      ECA review.  Implementing a strategy during early case assessment that focuses not only on keywords, but concepts, will result in reduced data sets.  This type of technology exists today and can make the legal team more efficient in their process of identifying themes in the data to better identify areas for further review.  Although it is not being implemented as a standard yet in the legal world, conceptual search is not a new technology and it is being utilized today by the national security infrastructure.  Conceptual search, if applied properly, can complement keyword searching and make the ECA process a much stronger “player” in the review of data.

4.      Document review.  Assuming that the data sets are now reduced by a targeted collection, complete processing and a thorough use of ECA technology, the document review component can be completed with smaller legal teams WHO CAN focus on the important data which results in lower costs for the client and a faster review.

In my last blog, I wrote about the IQPC conference in Munich where much of the discussion centered around in-house counsel and how they deal with the ever-expanding data sets involved in litigation today.  The conference took a hard look at how groups from the US and EU approach ESI and their differing perspectives on the importance of managing large data sets.  I believe that the themes from this conference dovetail with Ms. Qualters article and Judge Rader’s model order.  This is a good thing as data sets will continue to grow and the costs to manage, review and produce data will also continue to rise.

Will this order lead to further focus on how ESI is handled in the future?  Time will tell, but as it gets more press, the judiciary and corporations will begin to take notice.

Many of the corporations that spoke focused on how they have set-up internal groups to manage and support their legal teams in their discovery needs.  It was clear that each of these groups are taking a more proactive approach to managing their data sets to not only assist the legal teams, but to lower data processing and document review costs. 

Of the many panels, the most interesting to me was the Judges Panel: The View From The Bench which included: 

• Judge Dr. Gabriella Muscolo, from Rome
• Judge Simon Brown, QC Specialist Mercantile Judge Birmingham Civil Justice Centre
• Judge David Waxse, United States District Court Kansas City; and
• Judge Herbert Dixon, Superior Court of DC

My impression?  The Judges believe that (1) Clients need to have more control of their litigation, (2) Outside counsel must be more proactive in understanding their clients’ ESI, (3) There is too much over-preservation and (4) Lawyers need to be better prepared to cooperate with the other side in the litigation on ESI requirements.     

Judge Brown was especially interesting, and his approach to discovery was refreshing.  He is a very astute and knowledgeable jurist to the point where he will question counsel on their ESI if he feels they did not provide enough information.    

This Judges Panel dovetailed perfectly with my panel.  We discussed how new technologies impact the need to reduce to the amount of data to review and present in a litigation.   My fellow panelists were:   

• Mr. Eric Laurent-Ricard, Chief Forensic Expert Paris Court of Appeal
• Mr. Jon Tilbury, Director Tessella plc
• Mr. Andrew Sieja, CEO of kCura Corporation
• Mr. Mark Yacano, EVP of Hudson Legal was the Moderator

We discussed how advanced searching affects data sets; the need for better information governance; and more focused collection all affect the outcome of a litigation.  My particular focus was on how the legal team addresses the over-abundance of data and how they need to better manage this data.  

I stressed that the legal team (both in-house and outside counsel) need to do a better job of including professionals within the corporation that understand the data.  Specifically, the information technology groups; records management group and business owners need to be more involved, since they are the ones that use and manage the data that has been preserved, collected and processed for a litigation. 

These groups need to be an integral part of a litigation team especially as judges want to know more about the actual data – how is it stored – where is it stored – was it collected properly – and how was it processed and produced.  Without this knowledge, a litigation plan will be flawed and questions will be raised that could compromise the overall decision in a case.

It is clear that conferences such as these are important so that everyone involved in the process understands that the legal team is composed of more than lawyers.

Technology Panel: New Trends, Innovation And Application To Legal Process

My fellow panellists are:

Mark Yacano, Executive Vice President, Hudson Legal (moderator)

Eric Laurent-Ricard, Chief Forensic Expert, Paris Court of Appeal

Nick Patience, Research Director, Information Management, 451 Group

Jon Tilbury, Director, Tessella PLC

The panel will provide our audience with updates on developments in information retention and eDiscovery technologies. Together we will also present case studies, tools and extremely practical techniques.

 In addition, the panel members will review topics such as:

• Setting the scene: What does technology enable and how does it form part of the process?
• Cutting through the jargon what is it and what does it do?
• Examine the latest developments in the evolving relationship between technology and litigation
• Assess next generation technology development: data solutions for social media, mobile and cloud

  I’ll be discussing topics such as:

1.  Prior to litigation, what steps can we take through information governance to ensure data is managed properly?

1. Should the legal team play a role in policy development?
2. Data retention enforcement?

 2.  What management techniques should be applied to ensure a custodian identifies the location of all their data during an interview? 

1. Data mapping
2. How to deal with a Virtual workforce

 3.  What can the IT team do to assist with discovery management?

1. How can they be seen as part of the team?
2. Data mapping

 4.  How do advanced search techniques affect the litigation review component of discovery management?

1. Conceptual search
2. Early case assessment

 5.  How does SAS70, and similar certifications, play a role in corporate data management and the suppliers that process the data during a discovery management project?

Our audience will walk away with a more in-depth understanding of the differences and similarities between the U.S. and international legal markets.

I look forward to speaking with this global group to present a truly well rounded and lively discussion on the aforementioned topics that not only affect the U.S. legal market but the international legal and discovery industries.

The panel discussion will take place on Tuesday, 15th of November at 2:45PM – 3:25PM

See you there,

Dave

Whether at a law firm, corporate legal department, or at an outside supplier, professional Project Managers are the experts with the knowledge of the entire process.  In fact, they need to be an integral part of the legal team.  The professional PM has the ability to create customized solutions to meet the needs of the legal team.    Without a dedicated Project Manager, most of the responsibility is left to an Associate or Legal Assistant (on a part-time basis) that does not have the background or skills to manage, analyze or execute a project plan.

A good Project Manager is a risk management expert and consultant.  They are in the conflict resolution business and must have an arsenal of skills to solve the many issues that arise during a case.  The Project Manager is the facilitator and “rock” to lean on while assuming the accountability for the outcome of a project.  Project management is a stressful job that many do not understand.  A typical day goes from zero to sixty in a matter of minutes – managing multiple projects, coordinating each facet of the project, answering questions ranging from how the data was processed to when it will be ready for review, to acting as liaison, mentor, organizer, and general caretaker.  They must have the skills to execute every aspect of basic management, technology, and operations and communicate it in a way that the legal team and client can understand.

Project management is not a part-time position relegated to the back room using “off the shelf” software to process data.  There is no “discovery in a box” and the PM needs to have expertise in software, work-flow, and management.  At the outset, the PM needs to be in the same discussions with the client and partners when creating the case strategy.  A professional Project Manager will be ready to advise and consult on best practices ranging from data collection, image scanning and document coding, to ESI processing techniques and document review strategies.

The Project Manager plays a vital role with the legal team and client to create and communicate a budget and project plan that is realistic.  In many cases, the client is unaware of what is happening during a project (i.e.: they don’t receive updates to the budget or project plan to ensure what happens during a project is proceeding in a cost effective and defensible manner).  The Project Manager fills this void.  Since there is no cookie cutter approach or “magic technology” that reduces litigation costs, the Project Manager that interacts well with the legal team will better understand their needs and requirements and can anticipate potential issues.

Many legal teams believe that technology alone can solve their issues and reduce their cost.  In fact, the most efficient, defensible discovery solutions require a harmonious confluence of human expertise, high quality work-flow, and technology.  In many instances, the best strategy is to employ an outside supplier that has experienced PMs, technology, and workflow in place to execute the services.  If the Project Manager is internal, then they must have the ability to select a qualified supplier as well as manage and hold accountable the outcome of the services performed.

For example, let’s assume a litigation involving a terabyte of data.  What needs to take place to ensure the project is a success?

1. The Project Manager should be brought in at the earliest point of the case.  This will ensure that they have a clear understanding of what the case entails, the exposure, the potential data size, the risk involved, and the projected budget.
2. A detailed Statement of Services (or road map) is put into place at the outset of  the project will clearly describe:
• The project background
• What services are required for the project (i.e. collections, ESI processing, document review, etc)
• A description on how the project will be executed
• Accountability on who will do each phase of the project; whether it is at the firm or through an outside supplier
• The deliverables
• The budget
• The timelines
3. The Statement of Services will be monitored and tracked by the Project Manager and any deviations will be communicated to the legal team.
4. Once the project is underway, daily and weekly status reports are prepared and sent to the legal team.  The Project Manager should meet with the legal team at least once per week to update them on the case progress and to discuss any issues that may affect the case strategy.
5. Project metrics must be available for the team to monitor progress and to determine whether the project was a success.

Without a professional Project Manager leading the way you are potentially leaving the risk door wide open.  What could happen when you don’t have a professional Project Manager in place?  A lot – missed timelines, incorrect data processing, erroneous (or worse, non-existent) reporting, confusion, misdirection.  This road can lead to increased costs and unhappy clients.

Here are my five most important criteria for a successful Project Manager.

1. Accountability – one point of contact for all workflow, technology, and deliverable questions.
2. Availability – this is not a 9 to 5 position.  Issues come up whenever they come up.  A good project manager is on call, and available when needed.
3. Experience – a minimum of ten years in the business, and over 100 projects under your belt allows a Project Manager to pull from past experiences and avoid the pitfalls of a failed project.
4. Initiative – no project is ever completed without incident, but a proactive Project Manager will insert themselves into the issues and resolve them.
5. Communication – excellent written and verbal skills are KEY to ensure that the legal team is aware of the progress of the project as well as any deviations to the project plan.

A professional Project Manager must be recognized as a key member of the legal team and be acknowledged as an expert in their area.  Without this function in place, not only may the case strategy, budgets, and deliverables be affected, but the potential for the loss of  a client is greatly heightened.

What is the importance of being SAS70/SSAE 16 certified in the legal industry? How big a deal is it? Very big. This type of certification and audit process provides certainty to the law firm and more importantly, their client, that the supplier about to receive, process and store their data is secure, provides best practices and has documented defensible controls in place to manage their data.

Have you picked up a national newspaper or been on the web recently? There have been instances where well-known corporations have had security breaches with the potential theft of the personal information of many thousands of their customers. I have no doubt that these corporations had in place a very high level of security for their data systems. Unfortunately, this type of scenario is occurring on a regular basis. So while any entity could potentially be a victim of these types of actions, events of this nature reinforce why security certification and audit standards such as SAS70/SSAE 16 should be a minimum threshold for selecting a data service provider or host. The loss or breach of confidential client information can have serious consequences.

What is SAS70/SSAE16? According to the American Institute of Certified Public Accountants (AICPA), the “Statement on Auditing Standards (SAS) No. 70, Service Organizations, is a widely recognized auditing standard developed by the AICPA. A service auditor’s examination performed in accordance with SAS No. 70 is widely recognized, because it represents that a service organization has been through an in-depth audit of their control objectives and control activities, which often include controls over information technology and related processes. In today’s global economy, service providers must demonstrate that they have adequate controls and safeguards when they host or process data belonging to their customers. SSAE 16 was drafted with the intention and purpose of updating the US service organization reporting standard so that it mirrors and complies with the new international service organization reporting standard – ISAE 3402.”

SAS70/SSAE16 certification is not a standard in the legal industry, but it should be, as part of a defensible process. Law firms and their clients that outsource services must be sure that controls and best practices are in place and this type of certification ensures that compliance. SAS 70/ SSAE16 audits document the controls which support the operational, IT and service processes an organization has in place.

Becoming certified is not an easy process and it is not meant to be so. Providing documentation and validation on the following areas confirms that the provider is an organization that can be trusted with a client’s project and their data.

For example:

1. What controls are in place to provide reasonable assurance that management provides oversight, segregation of duties, and guides consistent with the implementation of security practices?
   1. What personnel policies are in place for the organization?
   2. How are staff hired and what background checks are provided?
   3. How are staff trained?
   4. What are the controls in place to manage the controls?
2. What service offerings does the supplier provide and is there documentation, workflow and quality control practices in place?
3. What controls are in place to provide reasonable assurance that physical assets are adequately protected and that physical access to the computer equipment, system infrastructure and storage media is limited to authorized personnel?
   1. What type of physical security does the supplier have to manage the data?
   2. Where is the data stored within the supplier’s facility? Is it secure and how is it secured?
   3. How is it stored on the network for processing?
4. What is the chain of custody process for starting a project?
   1. Is there a documented scope of work? How is that approved?
   2. Is there a documented workflow for processing data?
5. What type of data centers do they have?
   1. Are they Tier 4?
   2. What is the back-up policy for client data?
   3. What types of redundancy is in place?
6. What type of business continuity plan is in place?

As I have discussed in previous blogs, defensibility of the technology and operational process is the most important aspect of a project. SAS70/ SSAE16 certification is the foundation of defensibility and the potential risks to a client that chooses a provider without this certification in place can jeopardize the outcome of their project and case. So, how can a provider be trusted with data if they don’t have certified policies, standards and processes in place? Simple. They can’t.

Along with the rest of the Ediscovery Twitter and Blog worlds last week, I saw the blog post, the denial, the retraction, and the apology surrounding an attempted take on a recent ruling by Judge Shira Scheindlin.

I’m referring to Judge Scheindlin’s ruling that chastised an agency of the US Government for not producing various types of ESI correctly pursuant to a FOIA request.

The issue here is not the “wrong” post, the retraction or the apology. The issue was, is and always will be the defensibility of the process.

1. The completeness of the processing affects the accuracy of the data.
2. The accuracy of the data affects the quality of the review.
3. The quality of the review can affect the outcome of the case.

It’s a domino effect, as I commented in my blog about the recent NY Times article.

While there have been numerous court cases sanctioning parties for preservation failures, it is only recently that the Judiciary is holding litigants to task for failure to properly PROCESS the information. This ruling emphasizes the importance of end users understanding the limitations of the products they are using as well as their legal obligations to produce the data requested in the correct formats.

Unfortunately, the key issues of that ruling (i.e.: the failure to correctly process all of the requested ESI) was drowned out by a misleading headline and attributing statements criticizing the processing software utilized by the Government to the Judge.

The case – “National Day Laborer Organizing Network v. US Immigration and Customs Enforcement” (“ICE”) 2011 WL 381625 (SD NY Feb. 7, 2011) (“ICE”) – calls attention to the potential serious problems that can arise where end-users do not fully understand the data processing systems they are using. As a result, the information produced in this case did not perform up to the professional standards expected by the Judiciary.

Judge Scheindlin took ICE to task for not producing specific types of metadata and other basic production formats (e.g.: maintaining parent – child relationships of emails). ICE responded that they could not perform these functions and that to comply with the Court’s ruling would require enormous additional resources and at a cost that was not measurable in advance.

I’ve had similar conversations with clients stating that their vendor did not advise them that not all attachments, PDF’s and image-only files were actually searchable. Well into one particular case, a client lost confidence in the reliability of their vendor and turned to us. We reprocessed their data and the client was taken by surprise when 80,000 attachments were found in the email collection that then had to be re-reviewed. On a positive note, at least they were located before production was completed!

Another client stated “It was brought to our attention after several conference calls with the litigation team that one of the popular E-discovery & ECA tools used for this high profile case does not extract and generate full text conversion of potentially relevant images files that were embeddings and/or attachments to emails. It was a deeply embarrassing experience for our department to recommend this solution and potential harm that this caused to our clients’ case”. Luckily, the issues were addressed and corrected without judicial involvement.

Here, the resulting pain for the defendants was caused by a failure to adequately perform their due diligence. It is critical before adopting a processing software solution to assess whether it is capable of performing the task in a complete and defensible manner.

We advise potential clients to explore in detail the following issues before making such a decision:

Make sure the software’s document extraction process allows them to meet the requirements of their case. As seen in the ICE case, although the software extracted all of the information and was searchable, the data was treated as one big record, so they couldn’t break it apart to search email parent-child relationships, nor create attachment ranges. This issue means that these records would need to be re-processed in order to properly review, redact and produce the correct information. To perform that function ICE would have had to export the data to an external system and further process it (at additional costs).

Another critical issue is the use of embedded objects, as they are increasingly common in e-Mail and other MS Office Documents (MS Word, PPT, Excel, and so on). Other document types such as PDF’s and Open Office also commonly employ them. In a recent EDiscoveryJournal.com article, Greg Buckles states “We have always known that searching for text within spreadsheets is problematic, but this new generation of compound Office 2007 XML documents and email formats have dramatically expanded the potential for false negative search results.” See “Proximity Search Challenges in eDiscovery” – EdiscoveryJournal.com – January 10, 2011 – EDJ.com . The methods used to handle this are crucial because they can impact traditional searching and conceptual searching in unexpected ways. “In-line” or “in-context” text extraction” allows the extracted text to match what you visually see in the original document. The embedded object is also extracted as a “Child-Document” where it is 100% searchable so nothing is lost or missed. This solution provides the user with highly accurate Proximity and Conceptual search results, virtually eliminating false positives. Very few eDiscovery software packages or vendors process data this way.

Additionally, a second major limitation that ICE encountered was its inability to produce a “highlighted or “red-redacted” copy of the production. As stated by the Director of the ICE FOIA office in a Declaration as part of a government Motion to Stay the Court’s ruling until an Appeal could be filed, it was noted that the Agency would have to redact the text twice, incurring significant additional time and expense.

The inability to create separate records for attachments and embedded objects did not allow ICE to deliver back only the responsive information. In fact, they would be forced to manually redact out the information that was not producable, at great expense in both time and money. Additionally, they could not fulfill the court mandated requirement of delivering attachment ranges without having to reprocess this data in a separate system.

By using a “black box approach”, all of these technical and security issues are now owned by the end-user rather than a professional data services company. The end user is limited to the capabilities of the black box with no direct support to resolve specific problems quickly. Subsequent issues such as those described above will likely be disclaimed by the software manufacturer, leaving the end user with the costs, aggravation and potential legal consequences (e.g.: sanctions, privilege waiver) resulting from these problems. Would it not be more prudent to entrust these issues to companies that are better equipped to professionally manage these solutions?

Black boxes can become very expensive very quickly and a seemingly low entry price can become a “high priced” solution. Predicting and scaling up a system in advance is very difficult and can incur great costs if you are wrong. The best pricing is usually the “introductory” pricing and vendors will frequently have “premium pricing” for additional add-on services and hardware. Additionally, added services such as OCR, Decryption and Redaction can have major impacts on time lines as well as costs.

As an attorney or litigation support specialist, you are not expected to have all of the answers. Performing due diligence on your vendor, their people and products is very important – since they are the experts who must support you. However, you are responsible for the completeness and integrity of your discovery. In Federal court, attorneys are attesting pursuant to FRCP 26(g) that they made a reasonable inquiry to obtain the information and that the information is true and correct. Can such a statement be made without risk if counsel is on notice that the data processing software utilized may not be appropriate for the task?

On the other hand, I was mostly struck by what was not mentioned. The most important aspect to a successful review, whether manual or automated, is how the data was collected and processed. This distinction is frequently lost in articles such as this, since many still believe that ESI processing is a commodity service, not “exciting” or noteworthy to mention, and that everyone does it the same anyway. The assumption is that the electronic data is “magically” ready to review immediately without any type of intervention prior to being loaded into a review tool. Not true!

Automation and software have clearly made legal review much more efficient from the days of hardcopy review of boxes of paper. However, the technology that created successful tools such as Content Analyst, Relativity and Exego could not be so without the ability to process the data in an accurate and defensible manner so the legal teams could perform their review. Even in the days of “manual” document coding” (which was the precursor to ESI in a way) the accuracy of the review depended upon teams of coders indexing fields of data (metadata, basically today). If the coder had a bad day and their mistakes not caught, the review teams would miss important data and their review would be flawed. This was not the fault of the software, assuming that it was vetted, but because the data was not processed in a qualitative manner or more simply “garbage in, garbage out.”

With the advancement of search technology, especially in the areas of conceptual search, legal teams now have even more accurate tools to be able to review their collections in a comprehensive manner. Conceptual search provides more options for searching data than traditional keyword approaches. Combining conceptual and keyword search enhances the search results and provide the legal teams with a better view of their data and allows them to be more thoughtful in their search strategy. This approach, coupled with processing it accurately and completely, means that the legal team will have a more comprehensive search result, while saving their client money.

So, next time you read an article that discusses the ability of software to reduce the review time or save costs, ask yourself how the data was processed and then remember that some due diligence is necessary to make sure it was done correctly.

1. Complete processing of data in order to confidently search and report on their findings. This was important so the legal teams wouldn’t need to do additional processing and searching in order to finalize their search sets. As one lawyer said, I only want to search once on all of the data so I can save time and money.
2. Ability to better forecast and budget the size of the data that would come from an ECA platform to review. Clients want to know what the financial impact could be prior to conducting a review.
3. Implementation of search technology that would help them reduce the size of the data to a more manageable size. Utilizing conceptual search and traditional keyword searching, for example, to better analyze the data. Creation of standard reports that would show term hits and how a search affects the overall set of documents for review.
4. Experienced project management staff to work in a consultative manner to help the legal teams through the process. Working with a Project Manager with many years of hands-on experience in review and processing was an important component in their decision-making process.

Litigators are looking for solutions that help their clients adhere to strict budgets while providing a quality work-product to help them do a more comprehensive review and analysis of the data on each case. Although this is a logical statement, we heard from several lawyers that this is not the norm, but the exception.