The Best Place to Perform Technology Assisted Review (TAR)

The resulsts of eDiscovery Solutions Group (eDSG) Weekly Survey on "Where is your Technology Assisted Review (TAR) done?" are in and they reveal that 43% of the respondents are outsourcing  their Technology Assisted Review (TAR) to third party document review providers.  These results seem to be somewhat contradictory to the prime objective and overall value proposition of the Legal Services Outsourcing (LSO) or Legal Process Outsourcing (LPO) vendors to provide less expensive manpower for labor intensive tasks such as document review.

However, according to a report on the Top Ten Trends in Legal Outsourcing for 2012 by Fronterion LLC,  legal technology platforms (such as TAR) will be increasingly bundled together with traditional LPO offerings, combing two of the most important trends shaping  the legal profession today.  This means using software systems as well as low cost human labor to provide  cheaper  and more efficient legal services.

This trend seems to actually have been evolving for years as legacy LPO players have long been utilizing software tools and techniques during the document review processes including: document clustering, email thread management and keyword and concept search to cull and organize the documents in order to increase the speed and reduce the overall cost of review.  Adding predictive coding to mix as a way to reduce the cost even further seems like a logical progression in the evolution of the LPO as they strive to maintain their margins.

The percentage of the respondents  that chose something other than an LSO for where they send their Technology Assisted Review (TAR) also provided some interesting results:

• Outside Counsel (14%)
• Internal as part of Document Review Software (14%)
• Internal as separate Technology Assisted Review (TAR) Software (29%)

The fact that 14% of the respondants chose Outside Counsel for where they send their Technology Assisted Review (TAR) indicates that although the eDiscovery market is going through a paradigm shift with corporate legal departments bringing eDiscovery services in-house, there are still some legal departments relying on their outside counsel for eDiscovery services.  An interesting question for a future eDSG poll would be whether or not legal departments send their TAR to outside counsel because their outside counsel is proficient at TAR or because they send all of their eDiscovery work to outside counsel.   It would also be telling to investigate whether or not these outside counsel are performing the TAR services internally or sub-contracting them to an LPO or LSO.

The results of the eDSG 2012 Survey of the General Counsel from the Global 250 indicated that 86% of the respondants send their document review to either outside counsel or an LPO.   However, the survey also revealed that 75% of the respondants were frustrated that neither outside counsel nor legacy LPOs were providing adequate support for eDiscovery.  This survey also revealed that 80% of general counsel from the global 250 were frustrated with having to deal with software vendors.  This statistic leads into the last two facts from the eDSG weekly poll on where respondents are sending TAR.  The poll reveals that 43% are performing TAR internally which indicates that they are having to "deal" with software vendors.  The eDSG weekly poll is open to anyone that wants to vote and therefore the respondants are not necessarily general counsel from the global 250.  In fact, I would venture to say that very few is any of the respondants to this week's poll were general counsel.  However, it is still significant and shows a trend that 43% of the respondants indicated that they are performing TAR internally.

The fact that 14% of the respondents chose Internal as part of Document Review Software for where they send their Technology Assisted Review (TAR) indicates that some of the document review vendors have successfully integrated TAR into their review platforms.

However, the fact that 29% of the respondants chose Internal as separate Technology Assisted Review (TAR) Software for where they send their Technology Assisted Review (TAR) indicates that eDiscovery users are not yet comfortable with TAR and may not be ready to use it as part of their stand document review process. However, this statistic is significant enough to indicate that eDiscovery users understand the value of TAR and are therefore using in those situations where it satisfies the technical and legal requirements.

The resulsts of eDiscovery Solutions Group (eDSG) Weekly Survey on "Where is your Technology Assisted Review (TAR) done?" reveals that users within the eDiscovery market is still trying to figure out when, where an how to best utilize Technology Assisted Review (TAR).  Complicated by the ongoing paradigm shift of responsibility for eDiscovery services moving to the legal deparments and exaserbated by the evolution of both LPOs and outside counsel trying to refine their business models, TAR users should take the time to understand their internal requirements and then investigate the best approach, partners and place to perform TAR.  It may not be as straight forward to they think.

Click Here to view the results of the eDiscovery Solutions Group (eDSG) Weekly Survey on "Where is your Technology Assisted Review (TAR) done?".

Labels: Document Review, eDiscovery, General Counsel, global 250, Legal, Litigation, Litigation Software, Predictive Coding, TAR, Technology Assisted Review

posted by Charles Skamser @ 9:21 AM 1 Comments

Records Management and Early Case Assessment (ECA)

• Identify the specific business objectives for their records management initiative and select the right vendor, as a records management program requires a long-term commitment and the product needs to be compatible with the organization's content management strategy.
• Assess the records management product's capabilities to integrate and extend records retention policy into other content repositories, e-mail systems, document archives and file stores, as well as its search and legal discovery capabilities.
• Consider records management products with capabilities to support multiple content types and media — physical records, which may be in distributed record centers; electronic documents, which may reside in multiple repositories; and e-mail, which may exist in both the e-mail system and e-mail archives.
• Consider the records management product's certification under country- and regional-level standards such as Department of Defense (DoD) Directive 5015.2-STD, Model Requirements for the Management of Electronic Records (MoReq) and Victorian Electronic Records Strategy (VERS)

MarketScope Information management leaders, compliance officers, legal counsel and records managers are working on records management projects that involve managing business document retention and preservation. A good records management initiative includes people, processes and technology. Industry and government regulations have helped lead or even necessitate records management adoption, but e-discovery as well as the need for more effective control of vast information stores in the enterprise have become even more important drivers. While highly regulated industries, such as financial services, utilities and pharmaceuticals, have always had record retention requirements, changes in government regulations have impacted companies across a broader range of industries. Freedom of information legislation, which has proliferated on a global scale, has also increased the need in government organizations to implement records management initiatives, in order to properly retain appropriate documents so they can be produced as requested. Despite today's challenging economic environment, the need for transparency and accountability in government agencies continues to drive the adoption of records management.

Records management systems have evolved from little more than the creation of indexes and tracking mechanisms for the preservation of paper documents to the preservation of electronic documents. As the range of digital content types continues to grow, electronic records management systems should now include mechanisms for dealing with audio, video and Web content. The emergence of wikis, blogs and social networking platforms also requires policies and approaches for retention of user-generated content. E-mail has proved to be especially problematic when it comes to maintaining business records. While e-mail active archiving systems support role-based and event-based retention, records management is still needed for those e-mails that must be retained as records.

Many records management products are integral components of enterprise content management (ECM) suites and will require additional software licenses. The ability to integrate and declare documents from ECM applications should be a prerequisite for records management products. Integration with Microsoft Office is also important, because much of the creation of future business records occurs in this information worker environment. As e-mail and instant messaging are now staples of conducting business, records management products must also be able to integrate with these infrastructure applications. Records management vendors are also emphasizing increased integration with e-mail active archiving, compliance and e-discovery applications. As the diversity of applications and content repositories expands, policy-driven records management, allowing for the automatic classification of records, will become the preferred choice.
Standards have been established in many countries to provide local requirements for records management. These standards include how different record types should be managed, rules for metadata creation, security definitions and implementation guidelines. Many of these standards have released their second versions. Key records management standards include:

• DoD Directive 5015.2-STD — A U.S. standard and certification for records management developed by the Department of Defense. The DoD 5015.2-STD version 2 standard includes a Chapter 2 version and a Chapter 4 version, which detail additional security and classification requirements. The latest version, which records management vendors are now being certified for, is DoD 5015.2-STD version 3.
• MoReq2 — The European Model Requirements for the Management of Electronic Records is a European standard for records management functionality and deployment. The goal of MoReq is to subsume individual national records management standards in the European community. MoReq2, the latest version developed and released in February 2008, is more comprehensive in terms of testing, governance and functionality. Certification and testing of MoReq2 for records management products is just beginning, and as MoReq2 becomes more formalized, we believe that it will serve as a key records management standard.
• TNA2 — TNA2 is a U.K. standard and certification published by The National Archives. Its requirements reflect the legislation and standards for information management and include aspects of ISO 15489, MoReq, e-government and freedom of information. TNA-approved records management products meet compliance with the standards but no certification process is used.
• Document Management and Electronic Archiving (DOMEA) — A German strategy and standard for records management and document management in government agencies. It has seen limited compliance and adoption by records management vendors.
• VERS 2 — The Victorian Electronic Records Strategy is a framework of standards and implementation with the goal of reliably and authentically archiving electronic records created or managed by the Victorian government in Australia. This standard has become the de facto standard for records management projects in Australia.
• Information & Documentation on Records Management Guidelines (ISO 15489) — The first international standard for the implementation of records management. It defines how records should be created, captured and managed, including policies and processes. Many national records management standards include elements of ISO 15489.

These standards can be used as a foundation and guideline for the evaluation and implementation of records management products. The DoD 5015.2 standard is well-established and is the only one that has a formal certification process. It is the de facto benchmark for records management products and acts as certification for essential product functionality. Gartner recommends that enterprises use the DoD 5015.2 STD 2007, version 3 standard as a key requirement when acquiring any records management product, along with consideration of local standards.

Labels: 26(f), Compliance, Early Case Assessment, ECA, eDiscovery, General Counsel, Records Management, Records Rentention

posted by Charles Skamser @ 10:36 AM 1 Comments

Cooperation Between Legal and IT Deteriorating

Just when we all thought that communications and cooperation between the legal departments and the Information Technology departments of the Global 2000 was starting to improve, Recommind has released the results of a survey that indicates that collaboration and cooperation is actually deteriorating.  The survey of senior IT managers at enterprises averaging 13,000 employees reveals that IT and legal teams aren't collaborating on buying decisions and question each other's commitment to and understanding of eDiscovery and regulatory compliance.

As the amount of Electronically Stored Information (ESI) continues to increase and the subsequent cost of eDiscovery and Governance, Risk and Compliance (GRC)  continues to increase, it is almost beyond belief that the General Counsel (GC) and the Chief Information Officer (CIO) can’t meet over a cup of coffee and agree to play nicely.   Its actually  a fairly simple task for these two organizations to work together from a technology standpoint.   However, politically, it may be a different story.  Worst case, you would think that, given the financial impact associated with the lack of communications and collaboration between IT and the Legal, the Chairman of the Board or the Chief Executive Officer (CEO) would demand cooperation or find a GC and a CIO that could cooperate?

The full text of the press release from Recommind is as follows:

SAN FRANCISCO, CA--(Marketwire - June 16, 2010) -  Recommind, the leader in search-powered information risk management (IRM) software, today released results from its second annual survey that examines the working relationship between corporate IT and legal departments. While the inaugural survey revealed that a lack of collaboration between both teams was greatly hindering eDiscovery efforts, the 2010 installation demonstrates that this disconnect has dramatically worsened. The survey of senior IT managers at enterprises averaging 13,000 employees reveals that IT and legal teams aren't collaborating on buying decisions and question each other's commitment to and understanding of eDiscovery and regulatory compliance. This further endangers effective eDiscovery and regulatory responses at the exact time such activities are skyrocketing.

While legal and IT have been historically disparate, the exponential increase in content creation and the rising complexities and risks of eDiscovery and regulatory scrutiny have inexorably linked the needs and responsibilities of each department. With the average U.S. company facing 305 lawsuits at any given time -- a number that jumps to 556 for companies with more than $1 billion in revenue -- enterprises urgently need to ensure close collaboration between these critical departments or face massive financial, competitive and reputational risks as result. Recommind's survey reveals that communication between legal and IT has become decidedly worse in 2010. For example:

• In 2009, 67% of respondents described the relationship between the two departments as "good" or "very good"; in 2010, that number has dropped to 54%
• In 2009, 37% of respondents reported that IT and legal were working more closely together than the year before; that number has dropped to 27% in 2010
• In 2009, 40% of respondents stated that their IT department considered eDiscovery to be a high to very high priority; in 2010, that number has dropped to 26%
• In 2009, 82% of respondents said that IT was "very involved" in eDiscovery technology purchasing decisions, with legal being "very involved" 48% of the time.
• In 2010, IT's involvement has remained largely the same, dropping from 82% to 78%. The involvement of the legal department, however, has dropped dramatically, decreasing from 48% to 33%

In addition to measuring collaboration, the survey also examined the formalized processes between IT and legal and inter-departmental perceptions, focusing specifically on how the teams communicate with and evaluate each other. For example:

• 72% of respondents report that their IT and legal teams meet once a quarter or less; 52% meet once a year or less and 23% never meet at all
• When it comes to actually implementing eDiscovery processes, the focus of each department is also quite different: the primary goal of the IT department is "executing as quickly as possible" (35%), while the primary goal of the legal department is "complying with federal regulations and court orders" (61%)

Finally, earlier this year, Gartner Group recommended that global organizations start adding legal support managers -- a hybrid position that helps mediate between IT and legal -- to create policies and schedule and execute eDiscovery processes. It would appear that Gartner's advice is not yet being heeded; nearly 75% of the enterprises surveyed do not currently have this position filled.

"How can enterprises expect to avoid trouble in this hyper-regulatory and increasingly litigious environment when their legal and IT teams hardly talk? Effective responses to regulatory scrutiny and eDiscovery events are too complex, expensive and dangerous to have this level of miscommunication and mistrust between key departments," said Craig Carpenter, vice president of marketing, Recommind. "Having the right technology and processes in place are crucial, but everything starts with communication. Hopefully the fact that these problems are being exposed will serve as a clarion call for enterprises and the industry in general, because enterprises need a real sense of urgency if they want to avoid becoming front-page news for all the wrong reasons."

About Recommind Inc. Recommind's search-powered Information Risk Management (IRM) platform automatically accesses, organizes, collects and analyzes large volumes of information from myriad sources to address an enterprise's critical eDiscovery, compliance, email categorization and knowledge management needs. With faster, more accurate access to and greater control over information, organizations can lower risk, improve productivity, increase the value of information assets, and improve competitiveness and profits. Recommind customers include Bertelsmann, BMW, DLA Piper, Eversheds, Novartis, Shearman & Sterling, and Verizon. Recommind is headquartered in San Francisco and has offices in New York, Atlanta, Boston, Chicago, Houston, Washington DC, London, and Bonn, Germany. For more information, email info@recommind.com, or go to http://www.recommind.com/.

Labels: CEO, CIO, eDiscovery, GC, General Counsel, GRC, Recommind

posted by Charles Skamser @ 9:18 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