It is the new year so everybody is talking about resolutions, even those working in the field of electronic discovery. While we all have our personal resolutions, many legal professionals also create resolutions to improve their jobs, client happiness, organization, or their use of legal technology. Litigation professionals across the world are creating resolutions related to their electronic discovery positions by re-evaluating processes or changing the way they interact with clients. What are these legal professionals planning to do in 2015 and is it similar to your goals?
In this episode of The ESI Report, Michele Lange interviews twelve different litigation professionals about their 2015 resolutions in the field of e-discovery. Their resolutions include enhancing the level of electronic discovery consulting services, helping clients proactively manage high risk data, focusing on improving attorney experience, and helping clients automate their data storage for efficiency. In addition to client based resolutions, many of the e-discovery professionals set more personal work-related goals. These include being more patient with questions, not setting expectations for what will happen any given day, working on less urgent but still important tasks, and learning about new technology. A couple of the guests are working on specific projects this year including the implementation of a new email policy and ensuring a new document review center is running smoothly in the new year. You can learn a lot about the goals of these e-discovery experts including one fun fact: e-discovery is called e-disclosure in England.
In order, the guests include Josh Zylbershlag, Ralph Losey, Anthony Diana, David Yerich, Danny Thankachan, Daniel Kavan, Cliff Nichols, David Baldwin, Sue Kaiser, Shannon Capone Kirk, Joel Bothof, and James Sherer.
There has been a rapid growth in electronically stored information that is potentially useful for e-discovery in litigation. Because more data storage means higher costs, organizations are searching for new ways to store their information efficiently and cost effectively while at the same time not limiting access throughout discovery, a process which can sometimes last for months or years. It is important for litigators and large companies to understand what their options are for data storage and hosting cost flexibility. A process called “nearlining” provides a relatively simple solution to this problem of expensive data storage.
On this episode of the ESI Report, host Michele Lange interviews discovery product director Andrea Gibson and civil litigator Brian Calla about data storage costs, the nearlining process, the formatting of data storage, and other innovations in document review. Gibson explains that data access is not necessarily to all data, but to the appropriate data for any point in time, which can change throughout the life of an investigation, regulatory review, or litigation. The challenge lies in keeping volume of information reduced while maintaining access to what’s important. Nearlining, she says, is a capability by which you can store data that isn’t currently necessary, making the active data footprint smaller and greatly reducing electronic information storage costs. Calla, who often deals with e-discovery, discusses how nearlining works with his clients’ needs. Often, they wish to collect too much data initially. In this case he uses predictive coding to weed out unnecessary data and nearlines it for potential later need. When a project or review is finished, he will nearline all documents that are coded not responsive. Gibson and Calla finish by discussing other data storage innovations they each use to reduce costs including reformatting, predictive coding, and automatic redactions.
Brian Calla is a member at Eckert Seamans in Pittsburgh, PA. He concentrates his practice in general civil litigation with a particular emphasis on e-discovery, mass tort litigation and products liability. Calla serves as an Electronic Discovery Special Masters (EDSM) panel member for the U.S. District Court for the Western District of Pennsylvania.
Andrea Gibson is the Director of Product for Discovery Solutions at Kroll Ontrack, specifically working on the ediscovery.com Review product line. She has more than 10 years of direct experience as a litigator and legal consultant.
As lawyers, we hear a lot about the technological advances in e-discovery and information governance. How do you describe the current state of e-discovery from an opportunity and growth perspective, and how does this market opportunity impact the pulse rate of mergers, acquisitions, and investments? For lawyers purchasing e-discovery packages, there are several types of vendors and pricing models, and they need to be asking the right questions. What does the data governance solution need to do, how much does it cost, what are the time constraints, and how complex is the system?
In this episode of Digital Detectives, Sharon Nelson and John Simek interview technology marketer Rob Robinson about the current and future trends in data governance, how to choose an e-discovery provider, and events that will influence e-discovery and information governance in 2015. Robinson explains that the combination of software and services that make up the worldwide market for e-discovery in 2014 is just over 6.2 billion dollars and is growing at a consistent rate. He breaks the market down into three categories: developers who create and sell proprietary technologies or services, integrators who package and resell available services with custom development, and aggregators who combine and resell the technologies and services developed and purchased from others. Going into the future, Robinson discusses his excitement over advances in predictive coding, visual classification, and enhancing e-discovery processing. Also, due to corporate pressure for time and cost compression, these e-discovery solutions should continue to become cheaper and more time efficient. At the end of the podcast, Robinson discusses his use of social media to research trends in the information governance market.
Based in Austin, Texas, Rob Robinson is a proven technology marketer who has held senior leadership positions with multiple top-tier legal technology providers. Currently he is a managing partner with technology marketing consultancy ComplexDiscovery Solutions. With a strong interest in eDiscovery, information governance, and social media, Rob writes and posts regularly on technology and marketing topics on his highly referenced ComplexDiscovery blog.
When an organization or business suddenly finds itself in the middle of a civil litigation case, it is often overwhelmed with discovery requests. Most companies don’t have the tools or processes in place to deal with collection and data preservation and encounter expensive and time-consuming issues when responding to requests for information. What is a legal hold, would your organization be able to initiate a defensible legal hold, and when can data be confidently deleted again? It is very important to understand the discovery process and implement and enforce effective systems for data preservation now in order to reduce future costs of potential litigation.
In this episode of ESI Report, Michelle Lang interviews experienced e-discovery expert Cathleen Peterson about why data preservation is crucial to the discovery process, how to create a defensible legal hold, how to take account for emerging technologies, and when it is ok to delete data. Peterson explains that the fundamental challenge of data preservation is balancing the burden and the benefit. Failure to preserve means trying to recreate access to the data, an incredibly expensive and time-consuming process that raises questions about the effectiveness of the council or credibility of the client. Alternatively, well-preserved data can facilitate a well-managed litigation, control costs, result in an outcome that serves the client, and create the least disruptive litigation flow. A legal hold, Peterson explains, involves giving all potential parties who may have relevant evidence notice that litigation is in existence or anticipated. This includes employees, third parties, the IT department, or any person who may have accessed the information. She discusses how organizations need to implement a data governance system, enforce it across the organization, and update it yearly to account for changes in technology. Once the case is dismissed, the legal hold should be formally lifted and the data deleted so that future cases are not complicated by old data.
Peterson is a senior vice president at Kroll Ontrack, where she leads the consulting and advanced review services teams. She was the Legal Director at Orrick, Herrington & Sutcliffe and councel at WilmerHale. Cathleen has deep experience in all-things ediscovery, including records management, collection and preservation strategies, technology assisted review, and regulatory compliance.
Discovery, as all lawyers know, is the process of collecting and exchanging information about the court case to prepare for the trial. Traditionally, this was done by many lawyers over countless billable hours in which every page of potential evidence was examined for important information. Because of this, the more information existed in reference to a case, the more expensive the case was. As technology developed, law firms began using computers to do keyword searches and conceptual searches. Unfortunately, there were problems including picking the right keywords or concepts, misspelled words, how to structure the items, and that these searches only yielded 20% of important data. Recently, technology has advanced to predictive coding, or teaching a computer program to think like a lawyer would. But how cost effective and practical is predictive coding, and how well does it actually work?
In this episode of The Digital Detectives, Sharon Nelson and John Simekdiscuss the evolution of technology and case discovery, how predictive coding works and is priced, and examples of cases that have involved predictive coding. Simek first explains the importance of culling, or filtering out unimportant data sets through DeNISTing, deduping, or filtering by dates. He then explains predictive coding in its simplicity: to feed a computer program information based on discovery attorneys have already done until the computer can accurately predict which information is important. Simek and Nelson then go on to examine the prices vendors charge for the predictive coding process and in which cases it might be profitable for the law firm or client. There is a steep, expensive learning curve involved; many mid-sized law firms probably will not profit and even very large cases only save an average of 15% using predictive coding. However, Nelson explains, predictive coding is the future of discovery, so it is important for lawyers to pay attention to when the benefits outweigh the costs.
Nelson concludes the podcast by giving examples of when predictive coding has already appeared in court cases. The landmark case was Da Silva Moore v. Publicis Groupe, in which Magistrate Judge Andrew Peck allowed predictive coding to be used as long as the defense and prosecution agree to its use, there are a large volume of documents, it is the superior technology, it is more cost effective, and it is transparent and defensible. Inevitably, the conclusion is that it is not for the judge to micromanage the discovery process.
In 2006, the Federal Rules of Civil Procedure rule-makers developed and put into practice amendments dealing with electronically stored information (ESI) and e-discovery. However, most of those involved believed these amendments did not adequately deal with lost or missing ESI or “the spoliation issue.” In 2014 the rule-makers proposed Rule 37(e), which deals with the issue of spoliation equally across all federal courts, resolving the issue of inherent authority, or judges making decisions individually for each case. What are these changes and how will they affect the way businesses deal with e-discovery and data preservation?
In this episode of The Digital Detectives, Sharon Nelson and John Simek interview ESI preservation expert James Kurz about how Rule 37(e) works and what the consequences are for the future of ESI preservation. Kurz explains that the rule, which only deals with ESI, proposes a three part test before considering spoliation issues: the ESI should have been preserved in the anticipation or conduct of litigation and is lost, the ESI was lost because the party failed to take reasonable steps to preserve the information, and the missing information cannot be restored or replaced with additional discovery. If this test is passed, the federal court may then impose remedies, or if intention is proved, order more serious sanctions. He explains that Rule 37(e) will make a more homogenous legal process for e-discovery, and will solve some of the controversy surrounding the costs of ESI preservation and e-discovery for businesses. Although the rule faces the Judicial Court, Supreme Court, and then Congress, Kurz believes it will go through and be effective in December 2015.
James Kurz is a partner in the Alexandria VA law firm of Redmon, Peyton & Braswell LLP. His practice focuses on business litigation, including computer, software, and communications technologies cases. He also has an emphasis in the challenge of electronic discovery and the issues of information governance and co-wrote the white paper The Long-Awaited Proposed FRCP Rule 37(e), Its Workings and Its Guidance for ESI Preservation.
Laurence Colletti from the Legal Talk Network interviews e-discovery expert Bennett Borden about how electronic data collection and analysis is increasing the efficiency and accuracy of large scale litigation. This historically unparalleled ability “to get to an answer” is having a significant effect on the legal industry. Not only is it driving companies to faster settlements and empowering small plaintiffs’ firms to take large cases but it is also impacting the billable hour model used by large firms. Borden is a partner and Co-chair of the information governance and e-discovery group at Drinker Biddle & Reath LLP.
Despite all the attention that e-discovery has received over the last decade, it is still a relatively new part of the litigation process. For those lawyers who were never exposed to e-discovery in law school or their formative years of practice, the systems and products involving data collection and analysis can be overwhelming and complex. How much do lawyers need to know about information governance, data collection, data analysis, managed document review, and electronically stored information (ESI)? Alternately, for those practitioners who are already intricately involved in the culling and analysis, how is the technology and process changing?
In this episode of Digital Detectives, Sharon Nelson and John Simek interview e-discovery solutions expert Aaron Lawlor about what is involved with ESI and data collection, current trends in data analysis, and future advances in technology and process. Lawlor urges every litigator to become experienced with the state and federal rules involving e-discovery in order to better serve their clients. He explains the process of researching key players in the case and then collecting, analyzing, and refining their relevant data. In order to facilitate this process, lawyers and data collectors narrow the data set early by a process of visualizing connections and communication mapping. It is important, Lawlor says, for every lawyer to become familiar with e-discovery and data reduction strategies, since they are such significant drivers of litigation costs and outcomes.
Aaron Lawlor is the senior director of Global Legal Solutions at UnitedLex Corporation. He has spent the past decade addressing his clients’ e-discovery needs, first as an attorney at an Am Law 100 firm, then as the cofounder of a boutique consulting and managed document review company. His company was acquired by UnitedLex in 2013 and, in his current role, he partners with in-house and outside counsel to implement value-driven e-discovery solutions.
Legal Talk Network producer Laurence Colletti interviews Hunter McMahon, director of discovery and technology at Driven Inc., at the LegalTech West Coast Trade Show. McMahon explains the issues during an e-discovery project including quick data retention turnover, balancing privacy and security, and using appropriate data capturing technology. In starting e-discovery, he says, the best strategy is to start with custodians, managers and users with information that can narrow the search for data. Driven Inc. develops platforms for e-discovery that process, analyze, and produce data in a single index to reduce errors.
E-discovery is an intricate and complicated process where law and technology intersect to find solutions to complex litigation challenges. Lawyers and legal professionals going through the e-discovery process are often overwhelmed with data and information in varying systems in different stages of technological advancement. From millions of documents to tight production deadlines, no one understands the realities of the e-discovery frenzy better than an e-discovery case manager.
On this episode of The ESI Report, Michele Lange interviews Joe Edlund and Matt Samet, two e-discovery case managers from Kroll Ontrack. Edlund explains that it is the job of a case manager to establish a working relationship with the lawyer, including training on the data software, explaining data sets and performance, helping to make deadlines, and generally decreasing stress. Samet describes some of the benefits to the legal professional of having an e-discovery case manager. They are able to see the client from beginning to end and organize data recovery systems, identify response documents, and be proactive about potential issues. Through an open and communicative relationship with engineers and project level support, case managers are able to make the hectic process of e-discovery easier and more manageable. Stick around to the end for a fun quiz about job descriptions.
Joe Edlund is a Kroll Ontrack case manager who partners with law firms and corporate clients to provide sound advice and best practices in connection with e-discovery management. Matt Samet has experience as a case manager and is also a portfolio manager at Kroll Ontrack, also providing clients with e-discovery solutions.