Technology assisted review is a process based around technology. Just as with “transparent search,” its results, in terms of cost and risk reduction, are as good as the people and process involved. With a clearly defined use-case, a strong iterative process, buy-in from both counsel/parties, a team of experts to train the tool, and verification of the results, it is possible to run a review cost-effectively and with better results, i.e., with both higher precision and higher recall. That’s the good news. The bad news is that much confusion still exists. I attended a panel titled ‘eDiscovery Process Validation Sampling – How Confident Can You Be in the Results of Your Process?’ It was clear early on that none of the panelists understood the topic; in fact they pretty much avoided it altogether. In addition, the industry is using technology assisted review in many different matters, and at many different stages of the process, and for various different reasons. When these mists clear the adoption rate will grow dramatically.

Cooperation and Reasonableness Remain Your Best Guidance Regarding Data Preservation Obligations
Data preservation (and the challenge of pinpointing triggering events) clearly remains a source of great consternation for corporations and counsel. Questions and discussion abounded at the conference in this area. The risk of sanctions (and their related stigma) related to data preservation leave parties hungry for clearer guidance about their obligations. Unfortunately, the bright line guidance they so desperately desire is not easily achieved. The Hynix and Micron rulings related to Rambus’ data destruction don’t provide much (or any) additional clarity here, as the Federal Circuit merely affirmed the existing language that preservation obligations are triggered when litigation is “reasonably foreseeable.” Furthermore, several of the judges at the conference contended that bright line guidance will never really be possible, and that judgment calls will always be needed as companies evaluate whether and when to preserve or destroy electronic data. Rather, the judges advised that companies should continue to focus on “reasonable” behavior and on demonstrating cooperation with the other side. The judges reiterated a viewpoint here that was expressed in Zubulake, namely that you should take note at the moment you are tempted to label documents or correspondence as attorney work product. That is a very good sign that your preservation obligations have just been triggered.

Temper Your Expectations For How Much Any Amended eDiscovery Rules Will Change the Game
One panel discussed at length the recent and ongoing work to evaluate the proposals and comments for possible amendments to the existing civil rules governing eDiscovery practice. Judges Grimm and Rosenthal lauded the participants of this process for the analytical depth and quality of the comments that have been submitted. These materials are available on the U.S. Courts website (www.uscourts.gov). The judges cautioned, however, that we should temper our expectations about how much any rules amendments can really do. The judges reminded attendees that under the Rules Enabling Act, rule amendments cannot change substantive law, and that any changes will take a long time to enact. Judge Rosenthal suggested that more rapid and impactful changes will likely be brought about by the various pilot programs now in use (e.g. in the 7th Circuit, the Western District of Pennsylvania, and the Southern District of New York).

“Location-Based eDiscovery” — the Cutting-Edge Issue You Probably Have Never Heard of
Most of us have eagerly adopted the new technologies provided by iPads, smartphones, and social media. Yet few of us have stopped to consider the potential privacy impacts of these technologies, not to mention the plethora of possible eDiscovery applications for this type of data. So-called “location based eDiscovery” includes things such as GPS history data (stored on your handset device), cell tower data (kept by carriers, and allowing triangulation of where an individual is or was at a particular point in time), wi-fi logs, near-field communication (e.g. paying for a coffee with your smartphone), and uplink time differential of arrival (UTDOA). David Isom, a former Greenberg Traurig partner now in solo practice in Salt Lake City, presented on these topics. He predicted that if you have not yet dealt with location-based eDiscovery, you will soon (or that you should). We can point you to the paper he published on this topic here: www.isomlawfirm.com/location-privacy.php. Location-based eDiscovery issues are also present in the much-watched Jones matter currently pending before the U.S. Supreme Court.

Analytical Tools for Document Review Already Surpass Manual Human Processes, and Will Only Get Better
It seems that much of the recent literature about topics such as predictive coding and automated review has emphasized whether and when these technologies would be ready for everyday use on active cases, as well as concern over whether they are defensible. The conference panel that addressed analytical review tools shared a different message: it is already here, it already works better than manual human review, and you should be using it now. The panelists summarized various research showing that manual human review is approximately 70% accurate at identifying responsive documents across a population. And that machine-assisted review using analytics software can already be 80% accurate or more, while saving tremendous time and cost. They emphasized that you should not wait for automated review technology to become “perfect,” in light of the fact that the existing, manual human review processes are already far from perfect (one panelist went so far as to say that existing, manual human review is “bad”). The panelists shared that in defending your use of automated review, you need to focus on demonstrating the defensibility of your process, as opposed to the defensibility of any particular automated review technology.

So what does our fast growth mean for you? It proves that more and more Fortune 500 companies and AmLaw 250 firms are recognizing the advantages of using fixed-price e-discovery managed service to get defensible results, reduced costs and greater control without having to build the function internally. To learn more about it, register now for “e-Discovery Data Collections in 2011 and Beyond,” taking place on November 9, 2011 from 9:30-10:30 a.m. PST.

• The growing link between enterprise information technology, records management and data collections
• Best practices and approaches from a corporate perspective
• New data sources and tech tools in today’s e-discovery collection process
• An inside look at how Oracle keeps up with emerging e-discovery technologies
• Case law summary regarding data collection issues

Be sure to register for this webinar now to stay on top of modern e-discovery trends and positively impact the way your firm or corporation approaches litigation. This webinar is pending MCLE accreditation from the State Bar of California.



I recently talked with a corporation, very forward thinking, tech savvy and multi-billion in revenue, which formed an e-discovery committee over two years ago and has essentially done nothing. In other instances, corporations, looking like sputtering old cars, lurch forward and slow down over and over again – often reversing e-discovery decisions or going round in circles. Certainly it’s not a trivial issue for a corporation to figure out how to handle e-discovery cost effectively and defensibly. Sure, there are decisions to be made. For example, you either buy software or don’t, figure out what to have behind the firewall verus outside, determine what tasks to staff internally versus using a service provider . . .  the list goes on.  However, there’s one thing that’s simple enough to execute immediately: appoint the internal person who is tasked with making decisions and leading the effort.  Then at least you’ll get momentum and stop going round in circles.

“I gather the new term is service provider not vendor – I must try to remember that.”

“Come on law firms – put your hands up – you are vendors too.”

Psychologists across the globe tell anyone willing to listen that our personal problems are 99% in the mind, even though we think they relate to actual outcomes and situations.  The same is true with e-discovery.  There is much lip service paid by corporate America to the idea of “building e-discovery as a business process.” A few forward thinking corporations have actually done that – often with strategic service provider partnerships.  To get there, corporations have to make a mindset shift.  They have to think strategic partnerships, repeated interaction, collaboration and process development.  They have to get out of the mindset of one-shot games, hierarchy and holding the Damocles sword over all who support them.  I think much of the psyche problem comes from the fact that litigators grow up to think and behave as suspicious adversaries rather than supportive partners, which rubs off on everyone around them.  Whatever the cause,  it’s going to be hard for corporations to reach the promised land that many of us see until they make the mental leap. What are your thoughts?

• LitAudit™: a custom litigation-readiness assessment to gauge gaps in an e-discovery plan and implement action to improve the process

• SmartSetup™: a service designed to manage the first phase of a company’s e-discovery process to ensure defensibility while maximizing efficiency

• RemoteCollect™: a cost-effective method for enabling collection from geographically dispersed custodians with forensically prepared hard drives

• Defensible SelfCollect™: a method to train IT staff or custodians to perform collections

• Accelerated Review™: a fast-tracked method for maximizing document decisions per hour.

If you haven’t already, please schedule a meeting with us to discuss how these services fit in with your litigation plan. See you at the show.

Several panels discussed how challenging it is to coordinate the efforts of inside counsel, outside counsel, the e-discovery service provider and the contract review company – not to mention co-counsel. Incentives can be misaligned, communication can be dysfunctional and parties can sometimes be competitive. The key is to define roles very clearly from the outset. Decide who is responsible for what and create a clear communication plan so that each party knows what to expect from each other. In addition, establishing a “partnership” or “repeated game” typically makes for more seamless collaboration. The earlier such a relationship is established, the better.

Once all parties are cooperating, then comes the challenge of treating e-discovery as a business process. Panel Moderator Barry Murphy asked, “Is e-discovery really any different than any other business process?” After all, it involves people, process, technology and data.  Panelists urged corporations and law firms to think in these terms. They advised us to:  use metrics to evaluate success, create check-lists and documentation to support the process, define the appropriate experts and the key technologies to be used, understand the data environment and the unique circumstances of each matter, and align the parties. There were many discussions about the difficulties law firms and corporations face when building such processes internally, and that a logical solution is to use a managed service partner. Panelists from both Quest and Oracle mentioned they have such relationships in place. The Checklist Manifesto by Atul Gawande was an oft-quoted book.

Don’t wait for the judges
One often-heard phrase among litigation attorneys regarding new e-discovery technologies and workflows is:  “We need to see a decision on this from the bench before we can get comfortable”.  Judge Peck pointed out at the Carmel conference that this is flawed thinking.   He explained that the bench is not going to wholeheartedly bless a specific technology or e-discovery process. Take keyword searching, for example.  Today, done right, it is a very accepted e-discovery practice, and yet Victor Stanley demonstrated that the bench will rule on holes in the process when they appear.  On predictive coding technologies and workflows, Judge Peck’s comment was essentially, go ahead.  The standard is reasonableness.  As long as the workflow can be defended, it is up to litigating attorneys supported by e-discovery service providers to make the best decisions they can.

Use the 26 (f) conference and consult your e-discovery specialist prior
Many panels referenced the value of the 26(f) and its continued widespread under-use.  Judge Peck commented:  “Consult with your e-discovery provider or specialist prior to the meet and confer – and in an ideal world bring them with you”.   There are so many opportunities to use the 26(f), which is typically a series of meetings not a one-off, to drive efficiency throughout the process.  Troy Dunham pointed out on his panel:  “One of the keys to successful e-discovery is effectively preparing for your meet and confer.  Good planning in the early weeks saves time and headaches down the line”.

Join your colleagues and a few of us at the Carmel Valley e-Discovery Retreat in Carmel, CA on July 17-20.

I’ll be there with Troy Dunham, our expert on e-Discovery, along with a few folks from our team.
I’m speaking on July 18 at the “Working Together Effectively” seminar moderated by George Socha (one of the creators of the EDRM model) and will address how a collaborative approach drives efficient and effective process building which leads to dramatically reduced litigation costs, better control and visibility, and defensible results.

Troy is speaking on July 19 at the “From Identification To Production- Managing e-Discovery-A Business Process” seminar. Troy, a licensed California attorney and former practice support administrator for a global law firm, will discuss how an end-to-end, repeatable business process is the key to Corporate America’s success in the daunting world of e-Discovery. He will also discuss upcoming trends, as well as technology and service solutions, and how each will affect the e-Discovery landscape.

Contact us if you want to schedule a time to meet and have coffee.