Management of e-discovery is a challenge for large firms, whose clients present complex litigation with literally millions of electronically stored documents. In today’s competitive environment, firms have been exploring everything from e-discovery practice groups to vendor alliances, in order to attract clients. On Law Technology Now, host and Law Technology News’ editor-in-chief, Monica Bay joins John Rosenthal, partner at Winston & Strawn, and Paul Weiner, national e-discovery counsel and shareholder at Littler Mendelson, to discuss Law Technology News’ February issue cover story, True Grit: Scrapping for E-discovery Business, Law firms Push New Creative Options.

Background:

BigLaw firms Offer Different Models for Delivering E-discovery Services
Source: original article
Author:
Categories: Electronic discovery, e-discovery, ediscovery

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On January 12, 2012, the D.C. Court of Appeals Committee on the Unauthorized Practice of Law (“UPL Committee”) approved Opinion 21-12 addressing the applicability of D.C. Court of Appeals Rule 49 to “‘discovery services companies’—companies that state they offer comprehensive discovery services, including assistance with large scale document review, to legal services organizations.”  Rule 49 prohibits the unauthorized practice of law.  The Opinion specifically recognizes that in recent years such companies have “dramatically expanded the scope of their services” and have “begun to describe their services in increasingly broad language.”  Accordingly, the UPL Committee, through Opinion 21-12, sought to clarify the proper scope of services that such companies may offer and how those services may be represented to potential clients.

Following its discussion of the circumstances that prompted this opinion, namely “[t]he expanded scope of services offered by discovery services companies and the way they are promoted,” the UPL Committee identified a number of principles to “provide guidance to discovery services companies regarding the permissible scope of services that may be performed without engaging in the practice of law and the extent to which the companies may promote their services without holding out as authorized to practice law in the District of Columbia . . . .”

Summarizing broadly, the principles prohibit discovery services companies from providing legal advice to their clients and provide specific guidance regarding what types of services are appropriately offered and how those services may be represented in marketing materials, etc.  For example, the Opinion provides that “[t]he final selection of attorneys to staff a document review project must be made by a member of the D.C. Bar with an attorney-client relationship with the client, the attorney’s legal work must be directed or supervised by a D.C. Bar member who represents the client, and the discovery services company may not otherwise violate Rule 49 or attempt to supervise the document review attorney.”  The Opinion makes clear, however, that “discovery services companies do not run afoul of Rule 49 by handling the administrative aspects of hiring and supervising a document review attorney,” e.g., creating a roster of attorneys available for a particular review project, providing a work space and equipment, providing salary and benefits, etc.

Specifically regarding marketing of services offered, the Opinion requires that discovery services companies “avoid making statements in their promotional materials that are ambiguous or misleading regarding their capabilities” e.g, describing the “document review” services offered as “end-to-end” or “soup-to-nuts.”  Thus, “discovery service companies should avoid making such broad statements or at a minimum must include a prominent disclaimer stating that the company is not authorized to practice law or provide legal services in the District of Columbia, and that the services offered by the company are limited to the non-legal, administrative aspects of document review and discovery projects.”  Such a disclaimer must “appear on the same page as the potentially misleading claim, must be in the same font size and in close proximity to the claim.”  Similarly, when promoting the expertise of their staff (as opposed to the expertise of the attorneys they may provide for a review, for example), “statements regarding the legal experience of the companies’ staff must be accompanied by a prominent disclaimer that the company is not authorized to practice law or provide legal services … and that the company’s staff members cannot represent outside clients or provide legal advice.”

A copy of the full opinion is available here.

Background:

D.C. Court of Appeals Committee on the Unauthorized Practice of Law Issues Opinion addressing “Discovery Services Companies”
Source: original article
Author: K&L Gates
Categories: Electronic discovery, e-discovery, ediscovery

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E-discovery, or electronic discovery, is a tough job, but managed service providers (MSPs) in the legal vertical want to do it.

Background:

Managed Services Meets E-Discovery
Source: original article
Author:
Categories: Electronic discovery, e-discovery, ediscovery

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The craze over “Cloud Services” has reached a fever pitch so we grow used to the moniker. The ease of getting access to applications and compute or storage resources within hours or days justifies the hype however. It used to exclusively mean “Cloud-based On-demand Computing” (with your own applications being hosted in a utility environment) but now has expanded to Software as a Service (SaaS) offerings like Salesforce.com (http://en.wikipedia.org/wiki/Salesforce.com)  for hosted Customer Relationship Management (CRM), Hubspot (http://en.wikipedia.org/wiki/Hubspot) for Marketing Relationships and Web Presence/Content Management.

There are also any number of storage as a service vendor (Amazon S3, Nirvanix), email hosting providers (Gmail, Microsoft) and storage collaboration hosting providers (Google Docs, DropBox). We routinely rely on the safety and security of Cloud Services to expand our business capabilities as they are needed. Furthermore we can easily consume services that would have taken an internal IT staff months if not years to get running within private infrastructure (had we been able to get capital dollars appropriated to support it). So Cloud Services have opened up a number of opportunities for productive enhancement of business capacity without the need for large capital outlays.

Please see Figure One for a “landscape” of some cloud services that are routinely accessed as a regular part of the business delivery platform.

Figure One – Cloud Services Landscape

Notice how the mobile device has made the location of data independent from the use of the data by an application. With the cloud the data can reside anywhere; we are also no longer bound by time and space when we think of accessing and mastering the use of data objects. This is truly a brave and productive new world. The new “Cloud Based” approach to “knowledge worker tasks” (as Peter Drucker; famous business theorist would say: http://en.wikipedia.org/wiki/Peter_Drucker ) has made the worker independent of any particular location and allows the power of flexible computing and storage resources to come to bear on any particular business problem at any particular time.

Why Not eDiscovery as a Utility based Service?

Until this point in time when ubiquitous, cheap and plentiful network bandwidth has been married to flexible computing resources, legal discovery was always a manual, arcane and laborious task undertaken by a few “blacksmiths” in their own data center hideaways. These blacksmiths have been surrounded by their metaphorical forges represented by racks of Windows-based personal computers running batch processing jobs on documents. Like medieval blacksmiths next to their belching furnaces with black smoke, the legal discovery technicians sit at their Windows PC’s whacking away at pile after pile of documents as the medieval blacksmith did with iron, hoping to make a horseshoe out of the pig iron that lay before them.  Historically one has taken boxes of documents to a place where the legal discovery “forges” burned day and night to reduce the boxes of documents into the equivalent of swords and armor or horseshoes that could carry a case into court and hopefully win a legal argument. There was no alternative; businesses were not going to invest in their own “forges” and set up “legal discovery shop” so small inefficient “discovery blacksmith shops” proliferated the landscape of the electronic discovery marketplace. Now there is an alternative and it is present in the utility model for providing computing and storage resources and software service instances that comprise a modern electronic discovery process.

Now that there is a bright and modern utility computing model for nearly everything else, why should we not have one for eDiscovery? Why not use a glistening on-ramp over a wide highway of network bandwidth, secured with encrypted file transfers that can carry data to powerful servers ready to process Terabytes of data (image or electronic document formats) within hours and still produce the relevant documents that matter to lawyers?. Again, using the power of the utility model, why can’t we have analytic processes running in multiple software instances on virtual computers that identify for us what documents are relevant to a given matter and send us an email when the results have been obtained? This flexible utility model could expand to meet the timeframes required for a given case and allow the discovery processing tasks to be expedited as the needs of the case dictate.

Beyond the obvious time compression advantage due to blindingly fast processing, this approach would also enhance overall productivity by allowing a team of legal professionals to “log in” to the “cloud” and review the most relevant documents first; enhance their overall productivity. Lawyers from any geographic locale could leverage the power of the network to bring resources to bear on the documents that have been identified for eventual legal linear review. Further tagging and validating the results of the automated machine-based analytic operations would be necessary and would still require linear review, but this process would be greatly enhanced by the power of the utility model and the flexibility that network-based secure review would bring to bear on any legal matter.

This is a service offering that makes too much sense to avoid or ignore. The days of the old “medieval blacksmith” approach are numbered. Service and support will of course be necessary so a blend of professional service and advice and technology must be applied to the problem, but the leverage of the scale of the cloud is undeniable.

Background:

“Why Not eDiscovery?”: The Emerging Utility Model for Services
Source: original article
Author: Steve Akers
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

In my last post, I wrote about ediscovery in its present state and illustrated how it seems almost “medieval” in some ways. The analogy was drawn between medieval age blacksmithing and “modern” legal discovery practices. If one has ever visited a legal discovery processing company they will probably see at least a faint reference to my analogy (http://www.buzzle.com/articles/medieval-times-blacksmith.html).

 Medieval blacksmithing was a hot dirty business with lots of manual labor being expended by very skilled individuals. It was an art and a science rolled into one magnificent endeavor; and this seems to be quite analogous to the legal discovery practices I have seen. The insight and diligence of those who work in this field is obvious to all who witness the work; much like blacksmithing was in ancient and even not so ancient times. Where blacksmithing required insight and talent and diligence; so does legal discovery processing and analysis. The effort and expense the present day methods of electronic discovery require is as daunting and impressive as the manufacture of swords or armor in the Middle Ages. 

Evolutionary Process

Anyone who has walked into a legal discovery processing “shop” is usually greeted by a bunch of PC’s on racks with a number of human operators walking from one to another. Data is usually copied in batches and logs are kept as to who has what on certain machines. Bigger “outfits” are more automated and sophisticated, but the analogy is that long ago someone built the racks of equipment and invested their hard work into relationships and the building of processes that lead to good discovery outcomes. In some respects these companies built a “forge” in a central place and then began using it on a job by job basis, much like the medieval blacksmith did when he set up shop and started building swords and making armor. This capacity had a finite limit and was valuable, but it did run into the bounds of time and space and could only produce so many swords or suits of armor in a given time. The services were valuable however and indispensable; only until more modern times did the limits of production capacity get addressed. The process of blacksmithing evolved to a more productive model which expanded productive capacity over time. Legal discovery will likely follow a similar path; thanks to the capacity service model and cloud computing. It will be an evolutionary process, however, for a number of reasons.

For legal discovery; the businesses that began years ago grew up over time and built a series of processes that rely on staid and stationary technology provisioned in one central place and used over and over again. The expertise in collecting data and managing projects and performing legal processing likely grew together with this technology and infrastructure as a package offered to customers as a total service. For large litigation this is still the way that a lot of Ediscovery is done. As litigation grew this process became recognized as a large expense and the cost of this service began making customers question the method of strictly using outside vendors for Ediscovery. Alternatives to the legal service provider approach were explored as a result.

The prediction of the extinction of the legal service provider processing shop (the blacksmith) also has not and probably will never come true. There are many reasons why; chief among them is that legal discovery is not “just search” and is in fact a “market basket” of skills and abilities along with very specific large-scale data processing. A company wishing to achieve a legal discovery capability has to start with building infrastructure but there is more to it than hardware and software acquisitions alone.

There was a lot of talk about bringing this Ediscovery process “in-house” by mostly large corporate clients, and further talk of “the legal service provider becoming extinct”.  As stated above the cost of legal processing services were cited as the main impetus for moving this processing in-house; another was to show regulators that some measure of action was being taken to become aware of the content within employee communications. Initially these reasons seemed to justify the expense of an in-house deployment. Many large corporate entities bought legal discovery technology, or attempted to use existing “search applications” as legal discovery tools, but the results that transpired from this were reportedly “mixed” at best. .

Corporate IT managers found out a few things along the way with implementing the legal discovery process in house:

1. The capital equipment and the software license expenses to run this kind of software are huge if not extensively prohibitive.
2. The training costs for staff that run and maintain these systems are large and never-ending.
3. The storage requirements alone for the indexes and the legal hold locations can take months to provision and involve huge operating expenses and above all management overhead to keep running.
4. The servers that are required for a corporate installation of electronic discovery technology can be very extensive; one installation I know of (at a major US corporate headquarters) was projected by the vendor as requiring 75 servers and 10 Petabytes of storage. The cost of this would have been into the millions with storage and software costs alone. The network and other components though becoming less expensive, were projected to be considerable as well.
5. The sporadic nature of the average large Ediscovery project also makes the provisioning of systems and storage for this purpose alone hard to justify. Months may go by after an initial deployment and use of the technology. Very little activity can then occur for months while the case involving an electronic discovery matter progresses through the courts and litigation process. Equipment provisioned for an initial data assessment can sit idle for months while the results of the analysis are debated by the legal teams.

Aside from these more or less “hard physical” realities, the cost of proper forensic collection and the project management around electronic discovery projects were not avoidable by bringing technology in-house. I would even anecdotally argue that in some cases it caused corporate counsel and managers to spend more than they had previously on these consulting services. A capacity services model began making sense to users as they tried to employ their own electronic discovery service to “save expense dollars”. Some legal service providers were advocating that they could set up and operate equipment and software internal to corporate operations as a service to save money. These have had some success, but largely have run into the same issues that the corporation itself experienced. Provisioning individual instances of electronic discovery capacity behind corporate firewalls is expensive and hard to justify as an ongoing business process. A flexible capacity services model make far more sense for this type of application.

 Like the blacksmith, a knight could have conceivably purchased a forge and attempted to make his own armor, but it would probably have been a better use of his time to practice for battle (his core competency) in case the castle was to come under attack. Letting the blacksmith make the armor and the knight put it on and use it was probably the best use of everyone’s time in the Middle Ages. Having the legal service provider collect and process data and provide electronic discovery services while the corporation builds its product or provides its service is likely to also be the best division of labor in this context. It seems like corporate counsel and IT staff and legal service providers themselves are coming to this realization.

The pendulum is swinging back to where corporate and even service providers are realizing that the in-house model seemed like a good idea at the time but that legal service providers are still a necessary part of the legal discovery “ecosystem”. Leveraging the power and security of “The Cloud” for both corporations and legal service providers appears to be the most cost-effective way forward.

The Next Step in the Evolution

Because of the expertise involved with Ediscovery it requires more than pure technology to implement a service around the application. As we saw in the earlier discussion, those seeking to build an Ediscovery capability in-house quickly find that it is a very specific vertical application that requires far more technology than enterprise search products provide. With the addition of the provisioning difficulties around storage, servers and networking infrastructure, the cloud model “screams out” as an answer to the dilemma of getting elastic electronic discovery capability into the hands of corporate IT as well as legal service provider organizations. Organizations which have the need to suddenly enjoy “burst capacity” around processing large amounts of data, or that require access to processing and analysis of many small matters; realize that a capacity services model makes tremendous sense.

The next step in the evolution toward a true elastic electronic discovery service involves sophistication around provisioning and monitoring of service components in addition to the work that is being done to provide reliable and secure computing and storage infrastructure. Regular compute and storage or archiving services don’t have all the processing capabilities that an electronic discovery service must provide. These would include:

1. A customer self-service “on-ramp” where data can quickly and easily be introduced into a cloud service location
2. An initial processing analysis and reporting function that allows a customer to “self-assess” some content that relates to a given matter (“try before you buy”).
3. A subsequent deeper analysis and export function that removes irrelevant documents that do not need to go to linear attorney review; this is often referred to as “Early Case Assessment”.
4. An eventual linear attorney review function that can allow collaboration and group analysis of documents; including sampling and validation of tagging across various groups of reviewers.
5. Document export, Bates stamping and “production” services.

The Ultimate Solution

There is a service planned that incorporates these critical functions; and it will aid both corporate attorneys seeking analysis and review service in a “capacity services” model of “on-demand” operation, and the legal service providers who may use this “burst capacity” service as a basis to support their professional service opportunities. It is clear that this is well beyond what is offered by hosted service providers, archiving vendors, or plain storage and server cloud providers. The future of this industry will be in providing this sophisticated set of Ediscovery services in a “cloud model” and with less of a component technology model for providing software or hardware on demand.

The electronic discovery process needs to account for the location and temporal nature of data and communications that it represents plus some sophisticated “accounting” of where the data originated. Search and analysis portions of the process must account for these specific attributes in data objects that most enterprise search products don’t address. Also there are intricate processing functions in terms of how documents are produced for legal discovery that must be respected. In other words it involves more sophisticated processing and analysis and production capabilities than exist in the Cloud Services we use presently.

In my next post, we will discuss the electronic discovery service and what it entails in detail. The reader will be able to see why this service will be received so well and why it will be so valuable.

Background:

The Evolution Toward a Utility Model for Ediscovery Services
Source: original article
Author: Steve Akers
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

In my last post, I wrote about eDiscovery in its present state and illustrated how it seems almost “medieval” in some ways. The analogy was drawn between medieval age blacksmithing and “modern” legal discovery practices. I explained that like the hot dirty business of blacksmithing; the present process of legal discovery was hard and carried out by skilled individuals each employing a variety of homegrown or point-product software packages.

Despite this present approach, I argued that a standard hosted Ediscovery capability could emerge to leverage all the power and promise of “The Cloud”. This of course means leveraging the seemingly limitless supply of computing power residing in such “Cloud Computing” services.

I took the position that this would be an evolution as the process of steps many consider eDiscovery to include moves toward a finished and smooth application delivered as a package. If eDiscovery can become a finished application suite of services like Salesforce.com is for Customer Relationship Management (CRM) then people should be able to leverage “The Cloud” to obtain it.

In this post I want to make the case that (eventually) we can think of cloud based eDiscovery as having “an App for that”. It might take a while, but when Salesforce.com came out there were those who thought that CRM would always be done on Excel spreadsheets by small companies until they could grow into ones that could afford a large-scale CRM package. Today eDiscovery customers use a combination of in-house “point products” and various types of services to satisfy their needs in this area. Whenever I have spoken to a customer or prospective customer they have ALL expressed an interest in buying “eDiscovery” as a service in an “on-demand” fashion.

Given this desire to have a more “on-demand” and “service-oriented consumption model” for eDiscovery services, it is instructive to view current thinking in this area of Cloud Computing and to extrapolate how it will apply to eDiscovery. The model of obtaining eDiscovery will likely evolve toward “application status” and “near self-service” delivery in a “Software-as-a-Service” (SaaS) market model; but it will also likely retain a service component.

Evolutionary Process: Supporting Thoughts

I think that we currently have a bifurcated view of “Cloud” today. On the one hand we have the classic definition of cloud services which means flexible capacity and provisioning of computing and storage capacity. One the other hand we have the “application view” that I mention above. The following articles approach this position differently but end up in the same place: the world of applications will evolve to be powered in the cloud because the economics are compelling and because we have no other choice. The efficient delivery of computing services will be necessary from a competitive perspective. One will not be able to compete in the world of eDiscovery (or any other) without being able to leverage the utility computing model. The cloud utilities of computing and storage are necessary but not sufficient components to power the delivery of necessary applications to businesses or all kinds. EDiscovery will be no different; it must evolve to be a readily consumed set of services or applications.

A recent InfoWorld article contains a nice discussion and definition of the types of cloud services. An article by Steve Ballmer of Microsoft talks about the higher-level aspects of cloud computing, what it can do for society and the greater world, and why Microsoft is investing in it. Both of these articles imply that “The Cloud” will evolve to general use in specific ways through applications that attract users.

However, an article from last August in Wired Magazine puts it best. In “The Web is Dead; Long Live the Internet” Chris Anderson and Michael Wolf show how users move toward applications and platforms, not just WWW information. They give compelling examples of how the power of the application delivered in a SaaS utility model is the likely outcome for most application software. This is likely to be the case for even applications as complex as eDiscovery.

Background:

eDiscovery Services as an “App”
Source: original article
Author: Steve Akers
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

The Next Step in the Evolution: Flexible Service Delivery

Because of the expertise involved with eDiscovery it requires more than pure technology to implement a service of this type. There is also a “regional trust factor” between lawyers in certain regions of the country, the courts in which they practice and the service providers they use in a somewhat manual fashion today. When evaluating where eDiscovery is likely to evolve, I have concluded that there will always be a service component or professional services aspect to eDiscovery.

 Many of the services that are manual today will likely be automated however. I do believe that The Cloud will enable ubiquitous and scalable processing and analysis capabilities that will be delivered from a cloud infrastructure. The likely outcome is that they become provisioned from a platform that can let various service providers and Law firms use the different components of a hosted solution that makes sense for their clients or customers. This platform of Cloud-based services should introduce amazing efficiencies to the eDiscovery process overall. It should also allow users and service providers to select what services they need.

Please see Figure One for an illustration of a multi-tenant set of services that could be provisioned and accessed from Cloud Infrastructure. Such a system would allow small law firms to access scalable processing, OCR (Optical Character Recognition conversion of images to text) and analysis services “on-demand. Legal Service Providers (LSP’s) could also access this capacity over a high-speed network and “dial-up” as many CPU cores of capacity as they require to meet the timeframes of their customers. Their law firm clients may be dealing with them, and enjoying their project management and consulting expertise, but the LSP will enjoy the vast processing capability of the platform.

In this world, LSP’s could resell their consulting and project management expertise and rely on scalable cloud resources for the processing capacity that they lack with their point product approaches today. Along with the type of model, small or large law firms will be able to load the cloud with data and then have it analyzed. Reports explaining the attributes of the data would be the first “output” of such a system so that decisions around the case could be made intelligently with an eye toward cost containment. Eventual services could include document conversion, tagging and review. The customer could decide which of the platform features they require to satisfy their client or the needs of their business.

Figure One – Scalable Platform of Electronic Discovery Services

Background:

eDiscovery Services as an “App”; Part 2
Source: original article
Author: Steve Akers
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

What is Electronic Discovery Software?

Attorneys, paralegals, and IT staff use e-discovery software to assist in the electronic discovery process. Many e-discovery service providers use their own proprietary software to do e-discovery. If you choose to do it yourself, you have a number of software options to consider.

Software for Various E-Discovery Stages

One of the initial questions is, what stage in the e-discovery process do you need software for? You have a number of options:

• Information/records management prior to litigation
• Identification of electronically stored information (ESI)
• Preservation and collection of ESI
• Processing/filtering and review of ESI
• Production of ESI

No e-discovery software application can handle all e-discovery tasks because that would result in a gigantic, bloated application. Rather, e-discovery software providers offer various tools to assist with each e-discovery phase or task.

E-Discovery Tools

The next question is, what types of tools do you need? E-discovery software can be used for a variety of tasks. For example, electronic discovery software can be used to

• Search for relevant data and emails on a network, Microsoft Exchange Server, or PC
• Recover deleted or lost data (including email) on a PC, network, or other media
• Collect data in a forensically sound manner to preserve file system and file meta data
• Review and mark ESI as relevant, privileged, confidential, or other categories (ESI may include documents, email, spreadsheets, sound, or video)
• Destroy and erase data after litigation is completely over

E-Discovery Software Companies
Some of the largest electronic discovery software and service providers include Kroll Ontrack, Fios, Electronic Evidence Discovery, Renew Data, Zantaz, and Applied Discovery. There are also many small shops that provide e-discovery services.

Electronic Discovery Software Advice

1. Buying e-discovery software is not simple. Courts will not tolerate attorneys with an incompetent e-discovery process that results in missed data or spoliation. The consequences of doing e-discovery wrong has included monetary sanctions, spoliation inferences, and more.

2. If you do your own e-discovery, be sure you know what you are doing. First, the person using the e-discovery software should understand the hardware and software technology where the ESI may reside. Second, the the person using the e-discovery software should understand the court rules governing electronic evidence discovery.

3. Know when to get help. If you don’t have experience doing e-discovery, hire someone who does, such as an e-discovery vendor. If you do e-discovery frequently, it may be worth training someone on your staff to do the work and buying the software tools that are necessary. (Even then, you may outsource some of the complex e-discovery tasks.) If you rarely do e-discovery, hire an e-discovery vendor to do the work for you, which will be substantially cheaper and will ensure the work is done right.