E-Discovery Tip Sheet
You Can’t Always Get What You Want
We have paused, reflected, partied, prayed, and now it’s January of a new year.
Did you get what you wished for? Or did you get a copy of Ultimate Survival Guide, a
tie, and maybe a bottle of single malt, as consolation prizes?
Sometimes if we stop long enough and just breathe, just take in what is around
us, appreciate it, and let it go, we may tap into a little trickle of mindfulness, and see
ourselves and our surroundings in a slightly different way. That fleeting moment of
clarity may offer a vision of how things can be if we adjust our approach. To haul in
another metaphor, it is often useful to stop simply running before the wind and start
tacking toward where you actually want to go.
So what do you need to put you on course to more efficiently deal with electronic
discovery? There are lots of “EASY button” promises floating around the industry
trades, but you already suspect that something which seems too good to be true
probably is – or at least requires more than clicking a button. We are, increasingly,
being asked to do more with less, in less time, at lower cost. If you were thinking about
that over the past few weeks, your holidays were probably not very restful.
And so? – deep breath: you can map out what you need, what you want, and
what you’ll probably have to work with. Budgets being what they are, you can’t always
get what you want, according to former London School of Economics student Sir
Michael Philip Jagger. Let’s meditate a little on what you want, and how to get by with
what you need.
January 2015
E-Discovery Tip Sheet
Page 2
What you want…
There are hot ediscovery terms being bruited about as prime ingredients for the
stew that will be Legal Tech New York 2015:
Information governance
Risk Management
Data analytics
Cost control
Insourcing
Early document assessment
Technology Assisted Review
None of the concepts tagged with those terms is new. Another generation might
have referred to the first five items as Records management, HR Policy Manuals, Data
processing, Budgeting, and various in-house departments. Early document assessment is a
term for analyzing and culling information before, during, or just after collection to
focus on what is to be passed on for processing and review. Technology Assisted Review,
or any of its synonyms or subsets (such as predictive coding), may occur in the Early
document assessment phase as well as in review: it is a way of applying computer
algorithms coupled with expert knowledge to a set of documents to assess, at its most
basic, relevancy.
We read articles, blogs and comments all the time about how a certain product
addressing each or all of these will change the course of jurisprudence forever.
(Perhaps later we find out that there has never been a successful behind-the-firewall
installation of a certain omnibus solution we’d had our eye on.) But there’s always
another drumbeat. This will make our department better… it will make my life
easier… It’s the Precious… and I WANTS it!
This is obviously not a healthy path to a solution.
January 2015
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What you need…
I always advise first-time Legal Tech attendees to keep foremost in mind a
focused list of the tasks you need to do, or to do better; look at products which offer to
handle these tasks; and evaluate them based upon how you and your team might best
accomplish the requisite tasks. And, of course, whether this proffered solution is within
your budget.
For example, the ultimate goal of someone interested in Information governance
/ Risk management / Data analysis is to:
(a)
organize user-generated documents;
(b)
define rules governing their retention, archiving and/or destruction;
(c)
quickly identify and address improperly-stored Social Security numbers,
credit card information, dates of birth or other defined personallyidentifiable information;
(d)
understand the kinds of content that may be requested in an impending
litigation to gauge the scope of the company’s exposure; and
(e)
issue, monitor and maintain legal holds while preserving discoverable
information.
Not all of these tasks depend upon tools, though appropriate software assistance
can be helpful. For example, a clearly-prescribed electronic filing system can help
organize documents, but would not compel users to comply, while a relatively simple
and inexpensive document management system such as World Software’s Worldox
would maintain searchable, profiled document storage. It is also very helpful to have a
document management system that will help define a document lifecycle, as this offers
a proactive and definable approach to retention that may be consistently applied, and is
therefore readily defensible.
It is in items (c), (d) and (e) above that specialized software truly helps, but how
much software do you need? For in the end, even software requires that a process be
followed, it may just do a better job of annoying you into following the prescribed path.
If your budget does allow you to consider a “crawler” indexing utility that supports
January 2015
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searching for regular expression formats such as credit card numbers and tax IDs, let
me first congratulate you. I will next caution you to request actual case studies where
the utility, installed as contemplated at your location, was able to identify, preserve and
report on relevant material in a fully defensible manner. If the utility in question can
manage this, it is still worth asking whether it makes more sense, given the constant
updates in software and technology, to own such a tool rather than rent it as needed.
With respect to the topic of Technology Assisted Review, there is still a lot more
heat than light in media discussions. It is a fact that computers, following a disciplined
process of expert training, can provide positive results on large data stores, with
substantial cost benefits, as compared with linear attorney review or defined search
terms. It is also a fact that Technology Assisted Review is almost entirely useless in
cases where the electronically stored information is largely graphical rather than textual
in nature. Products offering this technology are also generally rather pricey for cases
involving fewer than 20,000 or 30,000 documents, or where the amount in dispute
doesn’t top six figures.
What you need, first, is a list of prioritized requirements.
Next, outline your current procedures, processes, methods, and resources used
in meeting these requirements. Note if any requirements are not adequately being met
in formal way (“Joanna takes care of it” is not a procedure).
Looking at user time, case value and other available metrics, figure out
approximately how much each required activity costs using the current method.
Research possible alternatives, getting as much information as possible about
them and how they map to your needs.
Now it’s tire-kicking time: grill selected prospective vendors on how their
solutions would address your requirements, and at what cost to license, implement,
convert, train and support. In the alternative, ask whether their solutions are offered as
services, and at what costs, using what cost basis (e.g., volume, user, monthly, number
of processor cores, or a combination).
Now you can at least create a budget, and a prospective timeline for
implementing a proof of concept or other test.
January 2015
E-Discovery Tip Sheet
Page 5
In the end, if you’re engaged in technology, there are technologies and solutions
that will engage you. It’s your duty to take the step back, and see how, beyond being
neat, they will help you in the real world. For what else can a poor boy do…?
-- Andy Kass
[email protected]
917-512-7503
The views expressed in this E-Discovery Tip Sheet are solely the views of the author, and do not necessarily
represent the opinion of U.S. Legal Support, Inc.
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