The New Generation of eDiscovery Search

The New Generation of eDiscovery Search technology train is getting ready to leave the station. However, after walking the tradeshow floors and attending many of the breakout sessions at last weeks LegalTech in New York, it is obvious that there is a tremendous amount of confusion regarding the definition and scope of the New Generation of eDiscovery Search technology and more importantly, how the courts view the use of such technology.

With the accelerating volume of Electronically Stored Information (ESI) or what I like to call Electronically Stored Evidence (ESE), the current legacy search technologies built into the current legacy eDiscovery tools and the associated best practices for document review are beginning to have a hard time "keeping up". Further, there is a tremendous amount of confusion and trepidation among litigators in regards to potential malpractice claims, sanctions and adherence to Rule 702 and Daubert challenges associated with employing the New Generation of eDiscovery Search technology. Finally, litigation technology vendors, whether purposely or not, have confused the market with fancy new marketing terms like "conceptual search", "transparent search", "linguistic search" and "clustering" without any real explanation of how they work and how to correctly employ them. Therefore, I thought that it was time to restart the campaign to both educate and lobby the eDiscovery industry in regards to the New Generation of eDiscovery Search.

First of all, I want to start with education regarding the pertinent issues. Without a doubt, one of the best article posted over the past 12 months on the legals issues surrounding the topic of what I am calling the New Generation of eDiscovery Search, was written by By Wayne C. Matus and John E. Davis in the New York Law Journal on October 31, 2008, titled, "Do Your Searches Pass Judicial Scrutiny?"

Since it is my impression that many of these very important issues are still either unknown to most in the eDiscovery "business" or are being ignored, I contacted Mr. Matus this week to get permission to repost his article.

Following is the full text of of "Do Your Searches Pass Judicial Scrutiny?":
Electronically stored information is increasing exponentially, and bills from law firms and discovery vendors to deal with this vast sea of data escalate significantly each year. Jason Baron, the director of litigation at the National Archives and Records Administration, believes that ESI is growing so fast that even with unlimited funds and human resources it will soon be impossible for humans to review these large document populations.[FOOTNOTE 1] Still, lawyers faced with potential malpractice claims and sanctions are loath to try new methods for handling the problem. It is time for change.

The traditional means used by litigators to address ESI is the application of keywords and Boolean search terms to identify relevant and non-privileged materials.[FOOTNOTE 2] While acknowledging that this method is unquestionably deficient, a recent article published in this publication concluded that "the available evidence suggests that keyword and Boolean searches remain the state of the art and the most appropriate search technology for most cases."[FOOTNOTE 3] We agree that, in a perfect world, if the parties can nevertheless meet and confer, and agree upon keywords to reduce the population to manageable proportions, the traditional judgmental method can be made to work. However, this is an imperfect world where plaintiffs and defendants do not always agree, and are not always equally motivated, to reduce costs. In fact, it is often quite the opposite. Moreover, even where the sides use judgmental sampling to agree upon keywords, the costs nevertheless usually remain too high.

THE JUDGMENTAL APPROACH
The judgmental approach to keywords ultimately fails because of "recall" and "precision." "Recall" measures how completely a process captures target data. "Precision" measures efficiency - the amount of irrelevant data captured along with the target data. Keywords, as judgmentally used by lawyers, recall too little, while capturing much that is irrelevant. An early landmark empirical study by David Blair and M.E. Maron[FOOTNOTE 4] showed that while lawyers thought they were retrieving about 75 percent of the relevant data, the true results were more like 20 percent. A subsequent study, conducted by the Text Retrieval Conference,[FOOTNOTE 5] confirmed this result, finding that only 22 percent of relevant documents were recalled using keyword search techniques, as opposed to approximately 78 percent found by other search techniques.[FOOTNOTE 6] Many lawyers will also tell you that it is common for reviewers to find only 10 to 40 percent of the recalled documents to be relevant, meaning lawyers are reading mostly junk.
We advocate two different approaches to yield better and more efficient results. First, we suggest that keywords are best used coupled with statistical, rather than judgmental, sampling. Second, we suggest that experienced counsel and vendors working with a combination of advanced conceptual search techniques can more efficiently and effectively deal with large amounts of ESI, resulting in a narrowed and enriched review set with a concomitant reduction in lawyer hours.

KEYWORDS DONE RIGHT
In Victor Stanley v. Creative Pipe, 250 FRD 251 (D. Md. 2008), Chief Magistrate Judge Paul W. Grimm of the U.S. District Court for the District of Maryland found counsel had waived the attorney-client privilege as to 165 inadvertently produced documents -- despite the use of 70 separate keyword searches in conducting their privilege screen -- because, among other reasons, counsel had failed to conduct "quality assurance testing." Clearly, judgmental sampling did not pass judicial scrutiny, while statistical sampling would likely have.

Counsel seeking to conduct a proper keyword search should instead consider the following steps:

• Sample the data. Counsel should isolate a random and statistically significant sample of the relevant datasets and then conduct a manual review of such data for relevance and privilege.[FOOTNOTE 7] This will educate counsel as to what to expect from the larger population and help in formulating keywords.
• Analyze and rank keywords. Counsel should then create and run search terms against the sample set, and (based on the information derived from the sample review) analyze their effectiveness by "recall" and "precision." This preliminary knowledge of the contents and richness of particular datasets will provide the basis to predict retrieval and review costs, and whether, for example, counsel should conduct any or just a limited review of such data.[FOOTNOTE 8]
• Review and repeat until satisfied that the search plan is defensible. This approach is plainly iterative in nature; it is the rare set of searches that achieves acceptable returns without adjustment. Successive application and fine-tuning of terms should permit counsel to achieve defensible levels of recall with superior precision rates. Practitioners should take note: One of the main factors cited by the court in Victor Stanley to determine if a party has conducted a reasonable search is if the party has reviewed a sample of the results to "assess its reliability, appropriateness for the task, and the quality of its implementation."[FOOTNOTE 9]

There is no consensus as to what percentage of recall will pass muster. Instead, counsel must be able to explain to the court the "reasonableness" under the circumstances of each step of the process, including the point at which a party was satisfied with the effectiveness of its search terms.[FOOTNOTE 10]

KEYWORDS: TO DISCLOSE OR NOT
Search terms created by counsel are generally protected, at least initially, by the attorney work-product doctrine, as their "mental impressions, conclusions, opinions, or legal theories ... concerning the litigation."[FOOTNOTE 11] But how does one show "reasonableness" of the search methodology without disclosing the keywords? Three recent cases, Victor Stanley, O'Keefe and Equity Analytics,[FOOTNOTE 12] have required that attorneys be able to explain and defend to the court, at its request, the methodology used to employ the search terms. One court has indicated it might find a waiver of privilege and require disclosure of the search terms.[FOOTNOTE 13]

OTHER FILTERING TECHNOLOGIES
Magistrate Judge John M. Facciola of the U.S. District Court for the District of Washington, D.C., recently pointed to authority that "concept searching" applications -- which use statistical and linguistic models to search for ideas as well as words and impose order upon disparate documents -- are "more efficient and more likely to produce comprehensive results" than keyword or Boolean searches.[FOOTNOTE 14] For example, the TREC 2007 Legal Track study found that 78 percent of relevant documents in a dataset were not found by Boolean keyword searches, but only by alternative search techniques.[FOOTNOTE 15] It is little wonder that Magistrate Judge Grimm has expressed optimism that concept-based searches studied by TREC would supplant keywords as the preferred method "for a variety of ESI discovery tasks."[FOOTNOTE 16]

These findings appear to have been confirmed. Earlier this year, the eDiscovery Institute disclosed its preliminary assessment of the study it conducted on the performance of computerized document review against human review. The study was conducted against a dataset drawn from the Verizon-MCI merger consisting of 1.3 terabytes and over two million documents. They concluded that computer systems allowed a comparable level of performance to be achieved with fewer people, less time and lower cost. While actual cost of traditional review was over $13.5 million, computer-assisted review was projected to cost just a fraction of that amount.[FOOTNOTE 17]

Concept search methodologies fall into three basic (and sometimes overlapping) categories:

• Probabilistic. This technique relies upon probabilistic search models such as "Bayesian classifiers," which evaluate and classify documents based on the interrelationships, proximity and frequency of usage of words found therein. The model may be given a "head start" by a sample set of relevant documents developed by attorneys at the outset of the process, which the computer analyzes and applies to the remaining documents. This technique can order groups and documents based on perceived potential importance to assist in the review process.
• Rule-based (or "clustering"). This statistically driven process analyzes the prevalence of words in documents and, based on such analysis, groups together documents interpreted as featuring like concepts. This technique can order documents by perceived potential importance as well.
• Linguistic. Sometimes referenced as "fuzzy search models," this technique seeks documents containing all forms of a target word or its synonyms in a general and/or case-specific thesaurus. Linguistic approaches may also rely upon statistics to analyze documents for terms along the same subject lines -- or sometimes to identify documents that use different ways to make the same point.[FOOTNOTE 18]

Differing tools often produce differing results, but some combination of each of these approaches (as well as Boolean keyword searches) -- using a transparent, iterative and measured process as described above -- can be used to best effect. As successive waves of ESI are received (as is often the case), moreover, certain of the concept-searching applications "learn" and become better at identifying correlations, associating documents with particular attributes with concepts of interest to counsel and minimizing false positives. Further, the statistics generated by this process permit counsel to draw educated lines as to where review should proceed and, sometimes more importantly, when it is reasonable to stop. The advantages of these powerful, computerized techniques become even more apparent where ESI reaches the terabyte range and the steep recall/precision tradeoff exhibited by keyword analyses may reach unacceptable levels. Two jurists have indicated in opinions an interest in hearing from experts as to such new approaches.[FOOTNOTE 19]

CONCLUSION
Given escalating volumes of ESI, with no end in sight, and the general impatience of courts with e-discovery mistakes, counsel and their clients soon may have no choice but to adopt discovery tools that are more efficient and precise than traditional Boolean search techniques. Courts have already put practitioners on notice of this emerging obligation. Combining measured approaches to search methodologies with advanced techniques can greatly assist in the organization of ESI and the cost-effective conduct of litigations and investigations. The future is now for these state-of-the-art search techniques.
Wayne C. Matus is a litigation partner in the New York office of Pillsbury Winthrop Shaw Pittman and one of two national leaders of the firm's e-discovery practice. John E. Davis is a senior associate in the firm's New York office specializing in e-discovery. Sandra Barragan, an associate at the firm, assisted in the preparation of this article.

::::FOOTNOTES::::
FN1 "EDD Showcase: Discovery Overload," Law Technology News, January 2008.
FN2 Although keyword searches and Boolean term searches are undeniably distinct, for purposes of this article we will refer to them interchangeably.
FN3 See "Assessing Alternative Search Methodologies," H. Christopher Boehning and Daniel J. Toal (NYLJ, April 22, 2008).
FN4 "An Evaluation of Retrieval Effectiveness for a Full-Text Document Retrieval System," Communications of the Association for Computing Machinery at 289-99, March 1985.
FN5 TREC is sponsored by the National Institute of Standards and Technology (NIST) and the Advanced Research and Development Activity of the Department of Defense.
FN6 These were the results of TREC 2007, the second year of the Legal Track study. See Jason R. Baron, Douglas W. Oard, Paul Thompson & Stephen Tomlinson, Overview of the TREC-2007 Legal Track, at §6 (linked at http://trec-legal.umiacs.umd.edu/). In a prior TREC-6 Ad Hoc Task study, for keywords to achieve just 50 percent recall, the architects had to accept a dismal 20 percent precision rate (whereby four of every five documents selected by keywords were nonresponsive). See H5 White Paper, Concept Search: Perceived Security, Actual Risk, at 2, citing Voorhees, Ellen M., and Harman, Donna, Overview of the Sixth Text REtrieval Conference (TREC-6), in NIST Special Publication 500-240: The Sixth Text REtrieval Conference (TREC 6), ed. E.M. Voorhees and D.K. Harman, 1-24 (Gaithersburg, MD: NIST 1997), and Voorhees, Ellen M., and Harman, Donna, Overview of the Seventh Text REtrieval Conference (TREC 7), ed. E.M. Voorhees and D. K. Harman, 1-24 (Gaithersburg, MD: NIST 1998).
FN7 E.g., Treppel v. Biovail Corp., 233 FRD 363, 374 (SDNY 2006).
FN8 See McPeek v. Ashcroft, 212 FRD 33, 35 (D. D.C. 2003) (ordering sampling of backup tapes to determine whether they contained relevant documents); Wiginton v. DB Richard Ellis Inc., 229 FRD 568, 570 (N.D. Ill. 2004) (ordering sampling of archived material based on keywords to determine whether it should be restored); see also Victor Stanley, 250 FRD at 261, citing The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189 (2007) [hereinafter, "The Sedona Best Practices"]. For example, the sampling process may reveal that certain data sources (such as local hard drives) or file types (such as Microsoft Access files) have such low yield that the collection and review effort is not worthwhile. While opposing counsel may not agree to such decision, the data provided by the sample review will provide the evidentiary support needed to defend the reasonableness of such steps to the court.
FN9 Victor Stanley, 250 FRD at 256.
FN10 See, e.g., Security Financial Life Insurance Company v. Dept. of Treasury, 2005 WL 839543, *4 (D. D.C. April 12, 2005) ("In deciding whether an agency's document search is adequate, the issue is not whether other responsive records might possibly exist, but whether the search was adequate, judged by a reasonableness standard.") (internal citations omitted); see also Victor Stanley, 250 FRD at 261 n.10 ("the cost-benefit balancing factors of [FRCP] 26(b)(2)(c) apply to all aspects of discovery").
FN11 Fed. R. Civ. P. 26(b)(3); see Lockheed Martin Corp. v. L-3 Comm. Corp., 2007 WL 2209250 (M.D. Fl. July 29, 2007) ("documents containing instructions about how to conduct the [ESI] search and what specifically to search for are opinion work product" and therefore protected as attorney work product privileged material); see also Gibson v. Ford Motor Co., 2007 WL 41954, at *6 (N.D. Ga. Jan. 4, 2007) (document retention notice that included a list of search terms reflected attorney mental impressions and so constituted protected work product).
FN12 Victor Stanley, 250 FRD at 256, United States v. O'Keefe, 537 F.Supp.2d 14 (D. D.C. 2008), and Equity Analytics, LLC v. Lundin, 248 FRD 331 (D. D.C. 2008).
FN13 Counsel, early in the process, should consider disclosure of keywords and other aspects of the search protocol to the adversary and the court, and invite their comment and approval, as a means of managing discovery costs and risk. Magistrate Judge Grimm in Victor Stanley Inc., 250 FRD at 256, found, among other things, that defense counsel's failure to disclose the keywords used to screen for privileged documents in defending its search methodology justified a finding of waiver as to the inadvertently produced documents. The court provided a checklist for attorneys to follow when preparing the methodology to be used to gather and produce ESI: Attorneys should consider the reasonableness of "the keywords used; the rationale for their selection; the qualifications of the [creators of the search] to design an effective and reliable search and information retrieval method; whether the search [is] a simple keyword search, or a more sophisticated one, such as one employing Boolean proximity operators ... ." Id.
FN14 Disability Rights Council v. Washington Metropolitan Transit Authority, 242 FRD 139 (D. D.C. 2007), citing George L. Paul & Jason R. Baron, "Information Inflation: Can the Legal System Adapt?" 13 Rich. J.L. & Tech. 10 (2007).
FN15 TREC 2007 Legal Track.
FN16 Victor Stanley, 250 FRD at 261 n.10.
FN17 http://www.ediscoveryinstitute.org/research/index.html.
FN18 Such tools are described in further detail in The Sedona Best Practices at 191-216 & Appendix. While we are unaware of a court that has expressly endorsed this approach, parties have used these search techniques in conducting, among other things, internal investigations.
FN19 Magistrate Judge Grimm in Victor Stanley, 250 FRD at 260, and Magistrate Judge Facciola in O'Keefe, 537 F.Supp.2d at 24, and Equity Analytics, 248 FRD at 333, have indicated that conducting and defending e-discovery may at times require experts. Indeed, Magistrate Judge Facciola stated that search methodologies in e-discovery may be scrutinized under Rule of Evidence 702.

Labels: Boolean Search, Carrot2, Conceptual Search, Daubert, dtSearch, eDiscovery, Keyword Search, Lucene, Nutch, Rule 702, Transparent Search

posted by Charles Skamser @ 9:42 AM 0 Comments

Law Firms 2011 Scenario

Not surprisingly, it appears that I am not the only one thinking about the transformation that is going on within the legal market in regards to the paradigm shift of eDiscovery being brought in-house by corporations. As a follow-up to an article titled, "Does it make sense for Corporations to Bring Litigation Services and Technology in-house?" that I posted on Tuesday February 10, 2009, there was another article titled, "Law Firms' 2011 Scenario and the End of Leverage" with a very similar theme that was posted on the Law.com site by Paul Lippe from the The LegalOnRamp on Wednesday February 11, 2009. Mr. Lippe predicts that based upon the current worldwide economic conditions, law firm revenues are going to drop by 20% and therefore (based upon their 100% gross margins) are going to have to reduce their overhead by 40% to maintain profit margins resulting in the following four (4) outcomes:

1. Clients will just flat-out spend less, drive harder bargains and get more for their money.
2. Some work will go to outsourcers, whether onshore or off.
3. More work will go to contract lawyers or proto-associates not on any kind of partnership track.
4. Some associate time will get replaced by technology.

This is a great article and provides an interesting perspective of the harsh realities that are facing law firms over the next 24 months. And, although it doesn't specifically address the issue about corporations moving services and technology in-house, the take away from all of this is:

1. The legal market is definitely in the middle of a paradigm shift or transformation.
2. Law firms will be generating less revenue and reducing costs.
3. Litigation service providers and litigation technology providers may need to develop new channels and support organizations to work directly with the corporations instead of the law firms.
4. Outsourcing both on-shore and off-shore will flourish.
5. Legal Staffing organizations will flourish.
6. There is now technology to replace some of the previously expensive hourly legal work.

The full text of Mr. Lippe's article is as follows:

I just got back from London, where I met with my friend "Dave" from the legal department of "GlobalBank," which operates in Europe, North America and Asia. In 2007, GlobalBank spent around $700 million on legal costs, making it likely one of the 10 biggest clients in the world. In 2009, no one really knows, but spending will be more like $250 million to $300 million, notwithstanding a bump in restructuring, layoffs and investigations. According to Dave, "we have been through four rounds of layoffs so far. In addition to half of my team and several of my peers, my boss, my boss's boss and boss's boss's boss all have been let go. We expect the recession to last through all of 2009 and most of 2010, but then hopefully things will start to get better."

A mere 11 months ago -- a lifetime in meltdown years -- a group of industry experts published the Legal Transformation Study. The study outlined four scenarios for the evolution of the legal industry by 2020. The folks behind this are offering a free webinar to introduce scenario thinking.

Let me offer my own 2011 scenario in the simplest possible terms.
As Dave and others are now saying, the recession will last through 2010. Law firms will use this period to substantially restructure, and beginning in 2011, things will start growing again. While there's a lot of detail and nuance around the form this restructuring will take, it can be described in simple terms. A typical law firm bill in January 2011 will generate the same dollars for partner work as it does today, but it will generate half the revenue for associate work. Consider a bill in July 2008 for $1,000,000, representing $450,000 of partner contribution, $500,000 of associate contribution and $50,000 of "other"; in January 2011, the bill for an essentially identical project will be $800,000, reflecting $450,000 of partner contribution, $250,000 of associate contribution and $100,000 of "other."

Whether this is accounted for as hourly billing or "value billing" is not particularly strategic, except that to measure differently will, of course, incentivise firms to be more thoughtful about how to structure work.

Where will those dollars go? Four places.

1. Clients will just flat-out spend less, drive harder bargains and get more for their money.
2. Some work will go to outsourcers, whether onshore or off.
3. More work will go to contract lawyers or proto-associates not on any kind of partnership track.
4. Some associate time will get replaced by technology.

Why am I so confident that this will happen?

First, associate time is a pricing mechanism, not an indicator of value. Like so much in the modern law firm model, the explosion in associate hours, rates and leverage began with the Cravath IBM antitrust defense in the 1970s and 1980s, when the firm discovered that in the quintessential "bet the company" case, IBM would willingly pay full freight for associate time on massive and pretty routine document review, and that in turn would drive up Cravath's profits dramatically. Since this wasn't particularly compelling work for the associates, the firm had to raise salaries to hold onto folks, triggering the great associate salary escalation.

Second, clients have always recognized that associate time is overpriced. Every client I know views associate time as the price for getting access to partner time and to the firm "brand." In truth, there are two billable hours: the partner's, which should reflect deep expertise and judgment about the client, the law and best practices, and the associate's, which is generally spent on some form of information processing, which clients recognize as relatively poorly managed compared to other arenas of information processing. As Susan Hackett, general counsel of the Association of Corporate Counsel, recently put it, "I don't have a problem with the $1,000-an-hour lawyer, but the $350-an-hour junior associate isn't worth it." Third, as individual partners follow the example of Fred Bartlit and others and spin out of big firms with an "anti-leverage" model, they will be able to charge substantially less than traditional firms. While some sliver of work will still require the very large firm, enough won't, so that firms will have to largely match the boutiques for efficiency gains, or they'll have to shrink radically if they want to do just "high end" work.

For you math majors out there, you will have noticed that the 2011 scenario locks in a 20 percent drop in firm revenues. That's right. So firms will have to find ways to cut at least 40 percent of overhead to maintain profits (more on that in a subsequent column).
In another London meeting, a very able head of knowledge management for a Magic Circle firm quoted the Nobel Prize-winning physicist Sir Ernest Rutherford. "Gentlemen, we have run out of money. It is time to start thinking."

Pretty good advice.

Labels: eDiscovery, Law Firm Profits, Legal Transformation Study, Paradigm Shifts, The LegalOnRamp

posted by Charles Skamser @ 9:19 AM 0 Comments

Does it Make Sense for Corporations to Bring Litigation Services and Technology in-House?

After having the opportunity to discuss several interesting case studies at LegalTech in New York last week with leading Early Case Assessment (ECA) vendors in which they provided technology for corporations to do their own ECA and then spending some time with the General Counsel of a Fortune 2000 company this week that wants to do his own email archiving and eDiscovery when required, I am beginning to wonder if the proverbial pendulum has swung and corporate legal departments have decided that it is time to bring eDiscovery in-house?

As the amount of litigation, investigation, and regulatory compliance related eDiscovery costs continue to grow at an accelerating rate coupled with the downturn in the world economy, corporations are looking everywhere for ways to reduce costs and eDiscovery appears to be a target rich opportunity.

Businesses and other organizations spent more than $2.7 billion on electronic data discovery last year, and spending on EDD will grow to more than $4.6 billion by 2010, according to consultants George Socha and Tom Gelbmann, who presented their Sixth Annual Socha-Gelbmann Electronic Discovery Survey in a report published last year on Law.com.

Therefore, looking at this $2.7 billion cost from the perspective of a corporate GC with the knowledge that many law firms are marking costs by at least 100%, it would be natural to assume that it might be less expensive to bring some, if not all, of the eDiscovery work in-house. However, I am going to contend that the issue of what to bring in-house and the actually savings is very complex and therefore it is a path the the corporate GC should consider with great care.

As such, over the next few weeks I am planning to compile a list of issues that the corporate general counsel should consider before making the decision to bring litigation services and technology in-house. Following is my preliminary list:

1. Do you currently understand what you are being billed by your outside counsel and other third party litigation services and technology vendors?
2. Have you talked with them about reducing costs?
3. Have you compiled a list of opportunities to reduce costs by brining them in-house?
4. Is this an all or nothing decision or is there some middle ground to bring some things in-house and leave other things with the outside counsel and third party providers?
5. What technology infrastructure will be required?
6. What eDiscovery expertise will be required?
7. Have you considered the issues with being able to provide the "experts" that can prove that they following the appropriate rules in regards to how your eDiscovery collections and processing was done?
8. Are there cloud computing and or Software-as-a-Service (SaaS) based solutions that may provide a cost effective alternative to building and/or maintaining in-house systems?
9. Does your corporation have enough litigation to justify the cost of a full time eDiscovery department and staff?
10. Are there relationships that you can develop with the 3rd party providers that don't require you to do through your outside counsel?
11. Are there viable off-shore solutions that could reduce costs?

This is obviously not a comprehensive list. However, I would encourage any GC's or staff members from corporate legal departments that are considering bringing eDiscovery in-house to respond to and/or comment on this post with their list of ideas and concerns for reducing eDiscovery costs by brining eDiscovery in-house.

I would also like to encourage technology vendors and other third party service providers to respond to and/or comment on this post with their list of ideas and concerns for reducing eDiscovery costs by brining eDiscovery in-house.

Labels: Bringing eDiscovery in-house, Early Case Assessment, eDiscovery, General Counsel, in-house corporate counsel, reducing costs, Saas, Software-as-a-Service

posted by Charles Skamser @ 2:09 PM 3 Comments

Another Perspective on LegalTech New York 2009

As a follow-up to my February 4, 2009 post on LegalTech New York 2009 titled, "LegalTech New York 2009 Update", I am adding the following post from February 3, 2009 on Law.com's Legal Technology Blog, Titled, "LegalTech New Year". The review points out, as I did in my initial posting, that Early Case Assessment (ECA) was the big winner at the show this year, Software-as-a-Service (SaaS) was hard to ignore and also does an excellent job covering some of my favorite vendors and their new technologies including Index Engines, Kazeon Systems, Guidance Software, Mimosa Systems, StoredIQ, Clearwell Systems and RocketMatter.

The full text of the post is as follows:

The new year has come and gone on the Gregorian calendar. But the new year for legal technology is still in progress at LegalTech New York, where vendors are unveiling their new products and services and attendees are helping them celebrate.

LegalTech attendees should revel in the number of vendor initiatives aimed at reducing e-discovery costs from acquisition to review and production. And, like last year, EDD vendors continue to design and manufacture their products for international litigation. But LegalTech is not all about e-discovery. There were still plenty of vendors with products outside the Electronic Data Reference Model.

EDD PARTIES
Readers should be aware that Index Engines can access and extract data from tape and tape libraries, really fast. But now they can also extract data from network storage systems, file shares, forensic images, and hard drives and still provide users a single point of access to it -- via a Web browser. Index Engines first indexes data on disparate resources. Once the index is compiled, data can be deduped, searched, reviewed, and extracted on demand. Also note that Index Engines can now filter unwanted file types such as EXE, DLL, etc., during the indexing process to reduce the time it takes to review the data.
In preparation of the new year, Kazeon Systems introduced new pay-as-you-go pricing models that augment their current standard software licensing option and focus on case matters. Kazeon hopes the new pricing models allow customers to implement an e-discovery solution that does not require a major financial investment or lengthy rollout.

Vendors are starting to “go left” of the EDRM to provide organizations a better view of the end of litigation via early case assessment tools. In fact, KPMG promoted the concept with a T-shirt emblazoned with "go left." Toward that end, Daticon EED announced the availability of its Early Case Assessment service that integrates concept-search technology with Discovery Partner, an integrated processing, analytics, review, and production platform. Discovery Partner was also enhanced with an Image Conversion Server that stages production-ready images in anticipation of production. The image server aims to reduce the time it takes to convert images and make the process transparent to reviewers.

Leaning toward the "left" side of EDRM, I watched a demonstration of Guidance Software's EnCase Legal Hold, its new Web-based litigation hold and tracking solution. EnCase Legal Hold has a good point of entrance into the EDD market via EnCase eDiscovery. Guidance hopes the new product will allow customers to issue legal holds and correspond with custodians as well as track and report on the collection and processing of ESI -- all performed with EnCase eDiscovery. Using a single case database, users can issue litigation holds, track correspondence with custodians, monitor and enforce compliance with the legal holds, and track the progress of collection and processing of potentially responsive ESI.

E-discovery players that continue to go to the left side of EDRM are eventually going to meet those players that are moving into e-discovery from stage left. Enter: Mimosa Systems NearPoint. Mimosa started out providing e-mail and file archiving solutions to organizations. Now, it contains a full suite of features designed to automate information management to facilitate the identification, collection, and preservation of content, e-mail and files, based on policies. Endpoint: NearPoint aims to speed up the discovery process and reduce information collection times and reduce storage costs. And don't give me that story that storage is cheap argument unless you power your data center with solar or wind power.

Looking at LegalTech from an international perspective, Clearwell Systems launched Clearwell Mobile for cross-border litigation. The Mobile product is powered by Clearwell’s E-Discovery Platform and provides organizations the ability to “drop” a Platform in a customer’s foreign site and allow legal teams to perform e-discovery “in country,” where the data resides and local counsel are familiar with the foreign entity’s privacy laws. After data has been acquired and responsive data has been retrieved and redacted, it is sent back to the situs of litigation. The good news is that you can return the box after the job is completed, much like returning a rental car – for a one-time, low fee. The other good news: Mobile is fully Unicode compliant.

I watched a demonstration of Mobile at LegalTech. It supports English, Western European, Eastern European, and Asian languages. This multilingual support lends itself to Clearwell’s search technology in search previews, search filters, and search reports in cross-border cases. I witnessed a demonstration of Mobile as it provided automatic language identification to data sets and exacted document counts by language type. The Unicode support also allows users to easily tag documents in different languages and assign them to multiple reviewers.

Huron Consulting remains bullish on outsourcing to India with an announcement of an exclusive alliance with UnitedLex. The alliance will bring together approximately 1,000 domestic document review stations from Huron and 600 Indian-based sets aiming to reduce the costs of e-discovery. As the year progresses, however, and more U.S.-based attorneys in search of work are willing to engage discovery review, outsourcing to India may not be so appealing.

Now, if you wonder about security in your service provider, which you should, check out eMag solutions’ ISO/IEC 27001:2005 certification for its operation centers in the U.K. and the U.S. EMag is an international provider of e-discovery services and data and its ISO 27001 certification indicates that it provides guidelines to implement risk management processes and policies that ensure secure infrastructures. So, ask your service provider what risk management framework they use to set security controls that ensure the safety and confidentiality of your data.

StoredIQ announced that it has expanded its e-discovery solution to support Symantec Enterprise Vault as a recognized data source during the legal discovery process. That means Enterprise Vault users who use the StoredIQ appliance get two big benefits. One: Vault users will get access to a broad set of data sources, in addition to the e-mail archive. So instead of aggregating data from multiple sources and manually merging it with information from the Vault's e-mail archives, users will be able to facilitate e-discovery processing by using a single appliance. Two: Using the StoredIQ appliance as the single repository for collecting, processing, and preparing responsive data for discovery has the potential to reduce the time it takes to work across the EDRM and minimize the overall costs.

"BEYOND THE [EDD] PALE"
To list the number of vendors I talked to outside of the EDRM would exhaust me. But there are few worth noting. EasySoft, a provider of legal software to streamline document creation and workflow and eliminate repetitive tasks. They discussed their product lines with me that ranged from managing bankruptcy cases to calculating divorce financials and time and billing. They even have shrink-wrap software to help the family law and personal injury lawyer, but those are limited to New Jersey law.

LawProspector aims to live up to its name in litigation terms. It looks to provide access to critical data about the litigation marketplace in a Web-based, software-as-a-service tool built for litigation support and business development teams at major law firms. LawProspector offers views into the current and future litigation activities of lawyers, law firms, and corporations. What can you do with that? LawProspector says it can be used to evaluate lateral hires, monitor existing client litigation activities, and measure the litigation activities of competing law firms and potential clients. I will validate this in due time.

I also reconnected with Courtroom Connect at LegalTech, a provider of litigation support connectivity to law firms, litigation support firms, and court reporters. It was showing off it's Polycom videoconferencing tools for its Remote Counsel product. It is interesting to note that this company got its start from some Stanford graduates who wired California courthouses much like network providers today wire hotels -- and charge back for services.

Software as a service is almost as hard to ignore today as Web 2.0, especially for solo and small firm attorneys looking for a low-cost method of law practice management. Both Clio and Rocket Matter stepped up to LegalTech with new products and services.

Clio announced ClientConnect, a secure Web-based portal for online document sharing, client collaboration, and online bill paying. Once you set a client up and allow him or her access to their data, they can view information on their matter, correspondence, documents (Microsoft Word, Excel, and PDF files), comments on documents, bills and invoices, and an online bill-paying system. ClientConnect comes at no additional charge to the $49 per month fee for lawyers and $25 per month fee per support staff member.
Rocket Matter, in celebration of the new year, officially launched version1.0 on January 6. Previous to that, it had been operating in beta mode. Like Clio, Rocket Matter is software as a service aimed at legal practice management and time and billing needs for lawyers and law firms. I will be taking a closer look at Rocket Matter after I collect myself from all the activities at LegalTech New York.

Labels: Clearwell Systems, Guidance Software, Huron Consulting, Index Engines, Kazeon Systems, LegalTech New York 2009, Mimosa Systems, StoredIQ

posted by Charles Skamser @ 2:49 PM 0 Comments

Top 10 eDiscovery Cases from 2008

During my Monday morning review of eDiscovery Blog postings and other relevant eDiscovery articles added to the web this past weekend, I came across a really interesting top 10 list of the most relevant cases in eDiscovery for 2008. The article, titled, "Top 10 e-Discovery Cases in 2008", was posted on the Discovery Resources website on January 13th 2009.

2008 was definitely a banner year for legal rulings that could shape the future of eDiscovery. However, I think that 2009 will be even more significant. Nevertheless, David Letterman would be proud as this is a really great top 10 list and should be read and studied by anyone that is in the eDiscovery business.

The full text of the article is as follows:

This past year saw a wide range of rulings on e-discovery issues and enforcement of The Federal Rules of Civil Procedure. Following are what I believe to be the most influential cases and rulings from 2008:

1. Mancia v. Mayflower Textile Services Co., 2008 WL 4595275 (D. Md. Oct. 15, 2008)

Result: Magistrate Judge Paul Grimm writes that Fed. R. Civ. P. 26(g) requires counsel to cooperate in e-discovery and that failure to do so can be construed as a violation of the duty of “reasonable inquiry” prior to certifying demands or responses. Cited The Sedona Conference® Cooperation Proclamation.

Significance: Influential opinion to jump-start the Cooperation Proclamation; will increase the use and documentation of 26(f) meet and confer proceedings.

2. Qualcomm v. Broadcom, 2008 WL 638108 (S.D.Cal., March 05, 2008)

Result: An adversarial relationship created between client and counsel; privilege abrogated so that counsel could defend themselves.

Significance: Outside counsel and inside counsel are even more wary about each other discharging responsibilities correctly; increases the tension that started when Zubulake put both sets of counsel on notice that they were responsible for preservation and understanding the information system; demonstrates the backing by a district judge of difficult decisions and creative sanctions made by a magistrate judge; January opinion by Judge Major was a significant push for cooperation (may have sparked Cooperation Proclamation); CREDO process still not released to public, but it is in process; may be on this list again in 2009.

3. Victor Stanley v. Creative Pipe, 2008 WL 2221841 (D. Md. May 29, 2008)

Result: Failure to agree on a “clawback agreement,” or agreement on choice of search key words, results in waiver of privilege when court holds that unilateral choice of keywords in privilege review did not rise to level of “reasonable precautions” to prevent inadvertent waiver.

Significance: Underscores the need for Federal Rules of Evidence 502 on privilege waiver; also underscores the benefit of agreeing on search terms; establishes framework for protocols to validate unilateral search.

4. Digicel v. Cable & Wireless LLC, [2008] EWHC 2522 (Ch)

Result: High Court of England and Wales orders defendants to search again (at their own expense) due to failure to secure agreement on keywords; cites Zubulake and The Sedona Principles.

Significance: European Zubulake opinion; will jump-start the “e-disclosure” momentum.

5. Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, No. 1:07-cv-01707-HHK (D.D.C. Nov. 12, 2007)

Result: Motion to dismiss denied by Judge Kennedy on November 10, 2007.

Significance: Keeps Magistrate Judge Facciola’s work alive regarding preservation of White House emails; implications for all government agencies regarding preservation; details underfunded and unsupervised IT efforts to preserve. Slow-moving train wreck.

6. Bell Atlantic Corp. v. Twombly, 127 S.Ct 1955 (2007)

Result: Raises pleading requirements for antitrust cases alleging conspiratorial behavior.

Significance: Decision reached in part (according to dicta) because of e-discovery costs and fishing expeditions; on this list due to the explosion of 2008 cases citing Twombly to raise pleading requirements for other issues. Sleeper case for e-discovery.

7. The warrant in the Bear Stearns trader computer seizure (unpublished)

Result: Two traders arrested, due in part to email found in suspect’s wife’s email account.

Significance: Aggressive and wide-ranging e-discovery for criminal cases, particularly related to the financial crisis.

8. Keithley v. The Home Store.com, 2008 WL 3833384 (N.D. Cal. August 12, 2008)

Result: Lack of preservation protocols results in $148,269.50 costs award to plaintiff and adverse inference.

Significance: “Lack of bad faith” not enough to demonstrate “good faith.”

9. In re Intel Corp. Microprocessor Antitrust Litig., 2008 WL 2310288 (D. Del. June 4, 2008)

Result: Work product privilege lost when witness interviews were offered up, opens the door to disclosure of privileged material.

Significance: Need to prove good faith regarding legal hold processes gone bad; distinction between core and facts; need for court-consumable documentation.

10. Treppel v. Biovail Corp., 2008 WL 866594 (S.D.N.Y. Apr. 2, 2008)

Result: No adverse inference (failure to show relevance), but sampling of tapes and costs for forensic searches awarded.

Significance: Details what is expected from GC when monitoring C-level preservation; watch for this SDNY case in the upcoming financial crisis litigation.

Labels: Digicel v. Cable and Wireless LLC, Discovery Resources, eDiscovery, Mancia v. Mayflower Textile Services Co, Qualcomm v. Broadcom, Victor Stanley v. Creative Pipe

posted by Charles Skamser @ 11:44 AM 0 Comments