Remembering Ross Kodner

August 6, 2018

Ross Kodner RIP

Every year as the annual ILTA Conference comes around I think about friends I won’t get to see there anymore.  Jim Keane, Richard Robbins, Ross Kodner and of course Browning Marean.

I’ll say more about Browning and the others next week but today I want to say a few words about Ross.  It was late July of 2013 when he left us and he was only 52.  He crammed a lot of life into those 52 years but it was still way too early to leave.  And he had a lot more to say, of that you can be sure.

I loved his comments on technology.  Some were spot on, like the myth of the paperless office.  Some were outrageous, like calling the Outlook system Microsoft Lookout.  As Browning once observed of some one else, he was “often wrong, but never uncertain.” And we loved him for it.

Because he was so full of life and energy and enthusiasm and he really loved technology.  Plus he got us all those cool gifts from vendors every year at The Dinner.  And when we turned around and honored him at the end of one Dinner with The Minuteman Award, he laughed along with all of his at the joke.

That’s still one of my favorite memories of Ross.  Along with the picture from the St, Patrick’s Day in Chicago we made him an honorary Irishman. I’m not sure what the coat had to do with it … Gayle would know.

But one year at an ABA Annual conference,  he moderated a panel discussion on legal technology with 5 or 6 speakers.  And by Moderate I really mean Speak. Ross was using a portable microphone which he passed to panelists when he asked a question. Andy, Jim, Natalie … all the usual suspects and I was sitting at the far end next to Reid Trautz.   I told Reid when we started that I doubted I would ever SEE the mic, never mind hold it.

But halfway thru Ross got a little sore throat and to kill time he asked me a question and passed the mic down the line while he looked for a glass of water.  Naturally I did what any good speaker would do in that situation. I kept the mic.

Several minutes later Reid is passing me one of Ross’s business cards on which Ross had furiously scribbled ONE MINUTE!!!!!! I smiled, looked up and said “only one minute to go? OK, I’ll be brief’.”

I saved that card and I had it framed with a big picture of Ross, an American flag and an eagle worthy of Steven Colbert at his grandest.  Six  months later at an ABA TechShow, I presented it to Ross at the end of that years Dinner and had the crowd in tears as I recounted the story and several others of similar circumstance.  I ended by telling Ross that his wife wholeheartedly agreed with the award for reasons she would not specify.

Well he was a good sport about the whole thing. One of his great qualities was being able to take as good as good as he got.  Although I never did get asked back to speak on that panel. Hmmmm.

Miss ya buddy.

 

 

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Craig Ball & Gayle O’Connor Talk About the Sedona Conference Primer on Social Media

July 18, 2018

That’s right. Fresh off her ACEDS blog post about the newly released Sedona Conference primer on social media, Gayle takes over the EDiscovery Channel hosting duties to talk with Craig Ball about that publication.

So read the blog. Watch the video. Then be sure to attend the Sedona Conference webinar on the primer hosted by Ken Withers, Deputy Executive Director of The Sedona Conference and featuring several members of the Working Group on Electronic Document Retention and Production who helped craft the primer.  These include Federal Magistrate Judge Kristen Mix of the District of Colorado,  Atty. Andrea D’Ambra, head of ED and IG at Norton Rose, Julie Lewis CEO and Founder of Digital Mountain and Phil Favro of Driven Inc.  The webinar is on Aug 8 and a registration link can be found here on the Sedona site.

And if, after all that, you still haven’t heard enough on the subject, you can find Gayle along with ACEDS Executive Director Mary Mack and Director of Strategic Partnerships Kaylee Walstad at ILTACON18 from Aug.19-23 in National Harbor, MD. (they say it’s in DC, but it’s not. It’s in Maryland. Across the river from Alexandria. Which has the closest METRO stop) . Stop by the ACEDS booth,  # 130, or better yet, sign up for their evening river cruise on Wednesday night! They’d love to talk with you about all the exciting things going on at ACEDS.

Craig Ball may be there, I can’t really say since he IS the EDiscovery International Man of Mystery and his schedule is a closely guarded secret. But I’ll be there, so feel free to track me down and we can chat.


Drew Ashby Talks About His Conference – eDiscovery for Trial Lawyers

July 5, 2018

Drew Ashby of The Cooper Firm in Marietta GA was a student of the Georgetown Ediscovery Training Academy who came away with more than a practical knowledge of how to work with ESI. He also came out of the class with a desire to pass that information along to other plaintiffs’ attorneys. As he put it, “I want to help show my fellow plaintiffs’ counsel that effective e-Discovery practice is within their grasp and that their cases are fertile ground for not only getting measurably better results but also for obtaining favorable court opinions that force their opposition to play fairly and by the rules.”

Listen as I speak with Drew about he accomplished that goal. Check it out on the original, authentic, accept no substitutes EDiscovery Channel at  https://www.youtube.com/channel/UCFJbJglx-or89yg9RanFTQg


WHAT EXACTLY DOES “WHERE ANGELS FEAR TO TREAD” MEAN?

June 27, 2018

Keyword search is back in the news again after the recent order in United States v. New Mexico State University (No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017) and with it, the predictable spate of articles and posts demeaning keyword search and using as their basis the reference to J. Facciola and his “where angels fear to tread” quote.

It’s like hurricanes returning every year to the Gulf of Mexico: we know they’re going to be strong, we just don’t know when they will appear or exactly how strong they will be. As that great legal analyst James W. Buffet once observed, “aint no reasonin with hurricane season.”

Or misplaced legal analysis.

So first off, I’d recommend you read Ralph Loseys article on this subject, Judge Goes Where Angels Fear To Tread: Tells the Parties What Keyword Searches to Use  at https://e-discoveryteam.com/ .  Ralph is, as always, erudite, well researched and exceedingly thorough. But as much as I respect him both personally and professionally I have to disagree with a part of his analysis.  I’ll set forth my disagreement below but first let’s take a look at that the “angels fear to tread quote” itself.

The original was written by Alexander Pope in his 1711 poem An Essay on Criticism and refers to inexperienced or rash people attempting things that more experienced people avoid.  At the time Pope wrote the phrase, the word fool meant an inexperienced person and not one with inferior intelligence.  Key point here.

The quote has been used many times, eg

  • Edmund Burke in his work Reflections on the Revolution in France in 1790.
  • Abraham Lincolns speech in the Lincoln Douglas debates at Peoria, Illinois on October 16, 1854
  • Fools Rush In (Where Angels Fear to Tread)”, a 1940 song written by Johnny Mercerand Rube Bloom, sung by Frank Sinatra
  • Bob Dylan’s song “Jokerman

Sometimes, however,  it has been misinterpreted, as in:

  • Wise men say, only fools rush in, from Elvis Presley’s “Can’t Help Falling in Love“, released in 1961.
  • “Angels rush in where fools fear to tread”, Cary Grant as the angel in the 1948 film The Bishop’s Wife.  (my personal favorite) 

And I believe the interpretation of J. Facciola’s words as a complete proscription against keyword search is one of those misinterpretations. (I’ve written on this many times and my 2016 blog post on the subject is appended at the end of this post) In the O’Keefe case, he was being asked to overturn search terms that had been used by a party after consulting with an expert.  The objecting party offered no expert of their own and simply asked the Court to set aside the existing terms and substitute his own.

The Judge, it seems to me, was hesitant to undertake that task.  To that specific point, he wrote that “[w]hether search terms or ‘keywords’ will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. … Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.”  (my emphasis added).

The Judge wasn’t saying keyword search was deficient per se. He was saying that substituting a list of words drawn up by a non-technical person (himself) would be necessarily inferior to a list done by technically adroit people. And that rather than ask him to create a new list, the objecting party should bring their own technical expert to the table.

And I think we can safely assume that J. Facciola understood completely the meaning of Popes phrase. Some of you may recall his keynote lunch address at the Eleventh Annual Georgetown Advanced eDiscovery Institute in Nov of 2014 where he carried on an imagined conversation on the state of litigation and advocacy. for an hour … with Socrates.  His understanding of the classics is clearly well established.

So this is where I disagree with Ralph.  In his columns, he states..

“Why did she make multiple detailed, technical decisions on legal search, including specific keywords to be used, without the benefit of expert testimony? Was that foolish as several judges have suggested, or was she just doing her job by making the decisions that the parties asked her to make?”

“Going it alone with legal search in a complex case is a fool’s errand.”

But the dictionary definition of a “fools errand” is “a task or activity that has no hope of success.”  And as noted above that is not what either Pope or J. Facciola meant to say.  Rather they meant that only an educated or trained person could succeed.

Two reports always under reported in this debate are instructive.  The first is the mostly ignored EDI/Oracle study which found that experienced SME (subject matter expert) attorneys out performed computer search engines. (see the article at http://www.americandiscovery.com/resources/industry-insights/2015/03/edi-oracle-study-electronic-document-review-inferior-to-human-review/  ) .The second is the test run by LawGeex which initially reported that their AI product “…. achieved an average 94% accuracy rate, whereas the “highly-experienced, US trained” human lawyers achieved just 85% accuracy on average.”  (see the article at https://www.legalfutures.co.uk/latest-news/ai-beats-average-legal-mind-not-best-performing-lawyers )

But a close look at that report reveals that the two best-performing lawyers each achieved 95% accuracy across the five NDAs, which was 1% BETTER than the computer. In one specific document, the AI spotted 100% of issues, while the best lawyers found 97%.  Not much of a difference.

So although the computers were, of course, always faster than humans (humans took an average of 92 minutes to complete a review of the five proffered exemplar documents while the software took just 26 seconds) did the overall difference in average accuracy of only 9% justify the costs of a computer search?  Without pricing information, a factor always left out of discussions about computer searches, it’s impossible to say.

Where I totally agree with Ralph is where he states, in his penultimate paragraph,

I urge the judges and litigants faced with a situation like Judge Fashing had to deal with in New Mexico State University, to consider the three choices set out by Judge Francis in Greater New York Taxi Association:

  1. Cooperation with the other side and their technical consultants to attempt to agree on an appropriate set of search criteria.
  2. Motions supported by expert testimony and facts regarding the search.
  3. Appointment of a neutral consultant who will design a search strategy.

 

Indeed, bring in an expert. A human expert. Computers are a good tool but as Ralph notes in his conclusion, Comment 2 to the ABA Model Rules of Professional Conduct states that “Competent representation can also be provided through the association of a lawyer of established competence in the field in question.”

 

 

REPORTS OF THE DEATH OF KEYWORD SEARCHING ARE GREATLY EXAGGERATED

Published: April 4, 2016

Author: Tom O’Connor, Senior eDiscovery Consultant, Advanced Discovery

This week has seen several websites recirculating a law.com article, first released in January just before LegalTech New York, entitled And the Judges Say: It’s Time to Adopt New Legal Technologies.  It’s an excellent piece that was an introduction to a great LegalTech session with Judges Andrew J. Peck (SDNY), James C. Francis (also S.D.N.Y.), Elizabeth D. Laporte (N.D. Cal.), and Pamela Meade Sargent (W.D. Va.), in which the judges discussed what they are currently seeing in their courts regarding big data, analytics, e-discovery and other technologies.

However, part of the article is a quote from an interview with Judge Peck in which he says, “I think there’s just too much data to try and do it the old fashioned way. That’s whether you’re talking really old fashioned with eyes-on-everything for review, or the still-old fashioned in my view use of keywords.”

With all due deference to Judge Peck, who I respect and admire both professionally and personally, I’ve disagreed with that position in the past and I still disagree with it.  Here is my reasoning.

Much of the lack of confidence in keyword searches is laid at the feet (or pen) of Judge John Facciola, in the case of United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008), with his famous quote about going where angels dare to tread. But that’s not exactly what Judge Facciola opined in that case. He actually dismissed a defendant’s objection to the adequacy of keywords used by the prosecution and ruled that a party challenging the efficacy of an opposing party’s search terms must do so through expert testimony.

His hesitancy was about the Court itself undertaking the complexity of search in the identification and production of electronically stored information. To that specific point, he stated that “[w]hether search terms or ‘keywords’ will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. … Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.”

To be fair, in an earlier decision, Disability Rights Council of Greater Washington v. Washington Metro Transit Authority, 242 F.R.D. 139 (D.D.C. 2007), Judge Facciola did, in fact, state that concept searching is more likely to produce comprehensive results and is more efficient than keyword searches. However there, as in O’Keefe, he questioned the litigants’ ability to demonstrate to him that the results were defensible.

I’ve noted numerous times in the past six months that despite the strong scientific evidence in support of TAR, numerous polls from organizations such as eDJournal and Kroll, as well as client surveys from firms such as Gibson Dunn and Norton Rose, show that the majority of people are NOT using TAR. And if they are not, it seems clear they must be using keyword searches.

This position was supported publicly last year at the Today General Counsel conference in New York by Gene Eames, Pfizer Inc.’s director of Search and Analytics in their Legal Division. Gene made it clear that he is strongly in favor of keyword searches IF the keywords and the results can be tested and validated. His point was that you use keywords to propagate a seed set for the eventual computer search, so why not use it on all the documents as a first pass.

Several people noted that pointing any search tool at all the data may be costly and inefficient. Co-chair David Kessler of Norton Rose Fulbright stated, “If I’m playing hide-and-seek with my kids and it’s my turn to seek, I’m not looking in the breadbox. They won’t be there because they don’t fit there.”  That comment prompted Gene to recall a discussion he had with a federal judge about the best way to proceed in a search, where he said if he returned from a meeting at the courthouse to find he had lost his keys he wouldn’t begin a search in Penn Station; he’d start in the lobby of the courthouse.

Everyone in the conversation did agree that the best practice is to bring some common sense to your search process. Technology is great, but it’s not an “Easy Button”, and the best technology for your project depends on a number of variables, including budget, time constraints and search needs. As Maura put it, “TAR is a process, not a product.”

The point about keywords was brought home again several weeks ago at the ASU Arkfeld EDiscovery Conference in Tempe, when I spoke on a panel about keyword searches to an SRO crowd. As I said in my recap of that session, “…keyword search is far from dead and is probably still the most common search method used by eDiscovery staff. TAR may be up and coming, but keyword search is still king.”

 


E-Discovery for Trial Lawyers Conference

June 13, 2018

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Seriously, where else can you hear Ariana Tadler and Craig Ball speaking at the same conference?  This 2 day in-depth seminar is designed for trial lawyers, paralegals, and staff for plaintiffs firms who wish to learn more about electronic discovery and immediately implement tactics to use these requests to their advantage.

This is going to be a great conference and it’s not too late to register.  It’s being held at the offices of the State Bar of Georgia in downtown Atlanta and you can see full details with a registration link here: http://thecooperfirm.com/ediscovery

 


The Small Case Dilemma: EDiscovery for the Rest of Us

June 6, 2018

Craig Ball and I are speaking on this topic today at the Georgetown Law EDiscovery Training Academy.  If you missed the Webcast called eDiscovery for the Rest of Us thaI did with Doug Austin of Cloud 9 on Wed May 30, 2018 you can see a recording at https://www.ediscovery.co/webcasts/webcast-ediscovery-for-the-rest-of-us/.

During the webinar, Doug mentioned my four part blog post series that Cloud 9 published on their blog in the past couple of weeks.  You can click on the links above for each individual post or scroll down below where I’ve compiled all four posts together for your reading pleasure!

PART 1:  May 15, 2018 

eDiscovery: The Early Years

The first formalized changes to the Federal Rules of Civil Procedure were made in December of 2006 as the culmination of a period of debate and review that started in March 2000. Prior to the codified changes, there were several prominent lawsuits touching on the subject, most notably the matter popularly known as the Zubulake case. (Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003))

Throughout the case, the plaintiff claimed that the evidence needed to prove the case existed in emails stored on UBS’ own computer systems. Because the emails requested were either never found or destroyed, the court found that it was more likely that they existed than not. The court found that while the corporation’s counsel directed that all potential discovery evidence, including emails, be preserved, the staff that the directive applied to did not follow through. This resulted in significant sanctions against UBS.

 

That case and the subsequent rule changes effectively forced civil litigants into a compliance mode with respect to their proper retention and management of electronically stored information (ESI). The risks that litigants then began to face because of improper management of ESI include spoliation of evidence, adverse inference, summary judgment, and sanctions. In some cases, such as Qualcomm Inc., v. Broadcom Corp., 548 F.3d 1004 (Fed. Cir. 2008), attorneys were even brought before their state bar association to answer to charges of misconduct.

At roughly the same time, the EDRM was started to deliver leadership, standards, best practices, tools, guides, and test data sets to improve electronic discovery work flow processes.  The original EDRM project (it is now owned by Duke University School of Law) came up with the following chart to show a general work flow for eDiscovery projects.

 

The problems faced by these new rules was the multiplicity of data in electronic formats. Examples of the types of data included in e-discovery are not just documents but e-mail, databases, web sites, instant messaging and any other electronically stored information that could be relevant evidence in litigation. Also included in e-discovery is “raw data”, which Forensic Investigators can review for hidden evidence.

 

Litigators may review material from e-discovery in one of several formats: printed paper, PDF images (with or without searchable text) or as single- or multi-page TIFF images. The original file format is also known as the “native” format. 

 

PART TWO:  May 17, 2018 

The EDna Challenge, 2009

In 2009, noted e-discovery consultant Craig Ball wrote a fascinating article in Law Technology News called  “E-Discovery for Everybody.”  That column came to be known as the “EDna Challenge” (Craig likes visual puns) because in it, Craig posited a solo practitioner named Edna with an e-discovery budget of $1,000 and asked how she could possibly perform any e-discovery on that amount.  He then solicited a wide-ranging number of answers from a variety of consultants and vendors and compiled them into the article, which is now posted on his website at

http://www.craigball.com/EDiscovery%20for%20Everybody.pdf .

 

Craig asked people to suggest a program or programs with the following criteria:

  1. Preserve relevant metadata;
  2. Incorporate de-duplication, as feasible;
  3. Support robust search of Outlook mail and productivity formats;
  4. Allow for efficient workflow;
  5. Enable rudimentary redaction;
  6. Run well on most late-model personal computers; and
  7. Require no more than $1,000.00in new software or hardware, though it’s fine to use fully-functional “free trial” software so long as you can access the data for the 2-3 year life of the case

 

The problem as Craig defined it still exists now:

“The vast majority of cases filed, developed and tried in the United States are not multimillion dollar dust ups between big companies. The evidence in modest cases is digital, too. Solo and small firm counsel like Edna need affordable, user-friendly tools designed for desktop eDiscovery — tools that preserve metadata, offer efficient workflow and ably handle the common file formats that account for nearly all of the ESI seen in day-to-day litigation. Using the tools and techniques described by my thoughtful colleagues, Edna will get the job done on time and under budget. The pieces are there, though the integration falls short.”

 

However, Craig did offer a little future optimism here:

“One possible bright spot was the emergence of hosted options. No one was sure the job could be begun–let alone completed–using SaaS on so tight a budget; but, there was enough mention of Saas to make it seem like a possibility, now or someday soon.”

 

PART 3  May 22, 2018

The Ernie Challenge

What about cases that fall between the Edna budget limit of $1,000 and major litigation like Pension Committee, a $550 million case arising out of the liquidation of hedge funds? (Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F.Supp.2d 456, 465 (S.D.N.Y.2010)?

To answer the question of what to do for the cases larger than $1,000 but less than the major litigation cases, I drew up the “Ernie Challenge,” with advice from Craig Ball and late DLA Piper senior counsel Browning Marean.  Named for my good friend Ernie Svenson, then a solo attorney with a general practice in New Orleans, it was posted on its own blog site at  http://theerniechallenge.wordpress.com/ .

Ernie is very tech savvy and often calls me when he has an EDD question involving what we call the “tweener” cases, those that fit in between the range covered by the Edna Challenge and mega cases suitable for the larger brand name products that dominate the EDD world.

The Ernie Challenge posited a case with roughly 1 terabyte of data to collect and a final amount of 200 gigabytes of data to review, most of that e-mail with the balance being various types of financial data. We also asked for some form of web review tool to work with the clients’ counsel and contract staff in a separate location.

There were several problems in meeting this challenge. First of course was pricing. Many, if not most, eDiscovery vendors at that time had their roots in the per unit commodity pricing days of photocopying and imaging. The standard practice was to charge hundreds of dollars per GB to process the data (which included culling, deduping, and de-nisting of the data set then preparing it for loading into a review software); then charging again — by both GB and user — on a monthly basis to review the data.

As a result, a simple license plus annual maintenance or a monthly subscription fee model for eDiscovery products didn’t exist. Instead, we had to sort through hundreds of products priced by varying and often widely divergent methods.

$X per GB for processing, $X per page for OCR, $X per document for near duplicate detection, $X per page for Bates numbers, $X per user and per GB to host and so on. Each is performed for different units with different unit pricing that can run from a penny to $500 per unit

For example, if a client paid for a forensically sound data collection of 800 GB (the size of the hard drive of one typical computer) and that data set eventually yields 200 GB of reviewable material, a typical eDiscovery company would charge $200 per GB for the processing ($160,000) plus $50 per month per GB ($10,000) and $90 per month per user for the hosting. If the case were to last 18 months, this cost alone would be just under $350,000.00. And if we accept the commonly cited statistic that the review process will account for 60-70% of the total project price, then we’re looking at a project cost that will eventually be close to $1,000,000.00.

For 200 GB of data!

To avoid the shock of those costs being immediately apparent, vendors often using pricing sheets in response to an eDiscovery RFP that looked like the menu in a Chinese restaurant … without English subtitles. And very few people had the experience, let alone the patience, to sort through those sheets. I myself was often called by clients to help them in that process because the separate bids they receive to an RFP don’t even appear to respond to the same proposal!

So, if your case was only worth $400,000 and after analysis and discussion with your client, you believe you cannot spend more than $10,000 for ESI processing and hosting services over the anticipated 18-month life of the case, you had a problem.

And if your case fell within the scope of the EDna Challenge, a small case with an eDiscovery budget of less than $1,000, you had an enormous problem.

By 2011, the question was paramount but we began to see some glimmer of hope. Craig Ball, in an interview at Legal Tech New York with Doug Austin ( https://www.eDiscovery.co/eDiscoverydaily/electronic-discovery/eDiscovery-trends-craig-ball-of-craig-d-ball-pc-2/) said “…  I’m seeing some behind the firewall products, even desktop products, that are going to be able to allow lawyers and people with relatively little technical expertise to handle small and medium sized cases.”

And that is the essence of our Small Case Dilemma. Where are those programs? Are there really applications that attorneys can use themselves to process and host data? Is there really a way to process and review a couple of hundred GB of data for a reasonable price?

By 2012, the products Craig Ball mentioned had materialized. In the book we wrote as a follow up to our ABA TechShow session (Electronic Discovery for Small Cases (ABA, 2012), Bruce Olson and I listed several, including:

  • Acrobat Legal Edition
  • Digital WarRoom Pro
  • Discovery Cloud
  • dtSearch Desktop
  • Harvester
  • Intella
  • Lexbe Online
  • Quick View Plus
  • SafeCopy

And at the same time, pricing began to drop substantially. Not only did unit pricing lower dramatically but we also began to see drop a trend away from the unit pricing model towards a flat fee or “all in” pricing. These sort of bundled flat rate prices, whether it be “per gigabyte,” “per drive,” or even “per case,” cover all the variables currently priced by the big boys as separate line items.

This development stemmed from two factors: (1) increased pricing competition among vendors and (2) newer cheaper technology. Faster processing products were being sold directly to corporate legal departments and law firms while the cost of hosting is being driven down by non-legal services such as Amazon and Microsoft. These developments give clients the option of using an in-house solution that cost far less than the prices stated above which then caused vendors to drop their prices accordingly.

 

PART FOUR May 24, 2018

 

The EDna Challenge, 2016

In 2016, Craig Ball revisited the Edna challenge with a new set of parameters and a panel at the annual ILTA conference on which I was privileged to be a participant. The panel sought what Craig called “… a re-examination of EDna options circa 2016 on a bigger budget. https://ballinyourcourt.wordpress.com/2016/04/15/edna-still-cheap-and-challenged/ .

In this new challenge, Edna had a Zip file on a thumb drive containing collected ESI in various formats: 10 custodians with ESI PSTs for six of them, four MBOX take outs from Gmail for the other four and a combination of  word processed documents, spreadsheets, PowerPoint documents, PDFs and a few scanned paper documents for all ten. She estimated the contents will unzip to about 10-12 GB with somewhere between 50,000 to 100, 000 documents total.

The goal was to conduct a paperless privilege and responsiveness review of the material in-house, sharing the task with an associate and legal assistant.  All staff had high-end, big screen desktop PC running Windows 8.1 with MS Office 2016 and Adobe Acrobat 11 Pro installed and the office’s network file server had ample space for the document collection.

The specific goals were:

  • Efficient workflow
  • Robust search
  • Ability to process relevant metadata
  • Simple document tagging and production identification
  • Effective tracked deduplication
  • Review may take up to 90 days, and the case may not conclude for up to two years.  All review, hosting and production costs must be borne by the budget.

Edna didn’t own a review tool and was willing to spend up to $5,000.00 total for software, vendor services, SaaS, etc.  Craig’s only restrictions on responses were “She won’t spend a penny more.  You can’t loan her your systems or software.  You can’t talk her out of it.  Pricing must mirror real-world availability, not a special deal.”

The good news was that the increase in budget accompanied by the shift to Web based solutions made a dramatic change in the responses. As one independent analyst noted, if kept to 3 months hosting, more than 70% of the companies he worked with could meet the challenge. Brad Jenkins, CEO of CloudNine (the host of this article) noted that the CloudNine software would allow Edna  “… access to a complete eDiscovery platform for processing, review, and production. She can upload her data for automated native processing, review her data in CloudNine’s integrated review tool, and produce her data in almost any format.”  All for under the limit of the challenge.

 

What’s Next?

The next step in the market of technology for the rest of us is growth of Internet based tools.  We are now seeing even more budget conscious solutions in a SaaS environment, solutions that work with common native format files where you host your own data with programs installed locally that are able to accommodate smaller data collections.

Some of these are well-established companies such as Relativity or Ipro Tech and others are newer companies such as CloudNine, Digital War Room, Logikcull, CS Disco and Everlaw. Some of them also incorporate some form of front-end analytics to significantly uce the amount of data to be processed as well as TAR or predictive coding technology to enable faster review of documents.

 

Conclusion

But the ultimate solution is more than just knowing the rules, avoiding e-jargon and understanding the technology. In our estimation, it is the process not the technology.

We are not alone in this appraisal. Technologist John Martin once commented, “It’s the archer not the arrow.” Craig Ball says, “The key consideration is workflow”.

The fact is that technology is not the key to successful management of e-discovery in small cases. Rather, the single most effective way to keep eDiscovery costs low is to work with your opposition in a cooperative manner so you can stipulate to the use of low cost solutions.

We all must change to the new paradigm of working in the digital world. In the words of The Hon. Lee Rosenthal, former Chair of the Standing Committee of the Judicial Conference, “Litigation habits and customs learned in the days of paper must be revisited and revised. The culture of bench and bar must adjust.”

Craig Ball described it as “throwing down the gauntlet in the Edna Challenge when he said, So, how about it e-discovery industryCan you divert your gaze from the golden calf long enough to see the future and recall the past? Sam Walton became the richest man of his era by selling to more for less. There’s a fast-growing need…and a huge emerging market.  The real Edna Challenge is waiting for the visionaries who will meet the need and serve this market.”

I think we’re almost there.

I think we’re very close to being there.


eDiscovery for the Rest of Us Webinar with Tom O’Connor & Doug Austin

May 29, 2018

CloudNine Educational Webcast Series: eDiscovery for the Rest of Us 

May 30, 2018 at noon CST

Does it seem like eDiscovery technology today is only for the “mega-firms” and “mega-cases”? What about for the “rest of us”? Are there solutions for the small firms and cases too? What does the average lawyer need to know about eDiscovery today and how to select a solution that’s right for them? This CLE-approved* webcast will discuss what lawyers need to know about eDiscovery, the various sources of data to consider, and the types of technology solutions to consider to make an informed decision and get started using technology to simplify the discovery process. Topics include:

+ How Automation is Affecting All Industries, including eDiscovery
+ Drivers for eDiscovery Automation Today
+ Challenges from Various Sources of ESI Data
+ Ethical Duties and Rules for Managing Discovery
+ Getting Data Through the Process Efficiently
+ Small Case Examples: Ernie and EDna
+ Key Components of an eDiscovery Solution
+ Types of Tools to Consider
+ Recommendations for Getting Started

* MCLE Approved in Selected States

Expert Presenters Include:
Doug Austin: Vice President at CloudNine and Editor of the eDiscovery Daily Blog

Doug is the VP of Products and Professional Services for CloudNine. At CloudNine, Doug manages the complete product and service portfolio as well as provides professional services consulting for CloudNine clients. Doug has over 25 years of experience providing legal technology consulting, technical project management and software development services to numerous commercial and government clients.

Tom O’Connor: eDiscovery Expert and Special Consultant to CloudNine

Tom is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems. Tom’s consulting experience is primarily in complex litigation matters where he has worked on numerous major cases, most recently the BP litigation. He has also been appointed as a technical consultant by various federal and state courts on cases dealing with large amounts of electronic evidence and specializes in negotiating ESI exchange protocols.

Register Here for this Free CLE Webcast