Essays

I was recently asked if I had a top ten list of guidelines are questions for a corporate legal department who is just starting to look at investing in some kind of information management, archiving or discovery solution. Although I do a lot of requirements and RFP engagements, I am usually brought in after the internal committee already has some idea of what they want. However, I frequently encounter clients that have latched onto a solution label without a true understanding of their own key pain points or what it will take to realize the ROI promised by this new technology. First and foremost, these corporations are already ahead of the curve because they have recognized the need and have made the decision to do something about it. Rather than trying to tackle all the different options and issues that span the different technology solutions, I want to limit this discussion to eDiscovery related technology, mostly because I believe in sticking to what I know best.

Recently, Recommind briefed eDiscoveryJournal on the software vendor’s predictive coding. In the Recommind context, predictive coding starts with a sub-set of data (derived by various techniques such as concept searching, phrase identification, keyword searching, metadata filters, etc) and users review and code the seed data set for factors such as responsiveness, issue, and privilege. Once that review is complete, the user can hit a “train” button that tells the Axcelerate application to identify conceptually similar documents based on the attributes of the first set of coding. Recommind refers to this as machine learning – the engine learns from the document coding conducted by humans; and vice-versa, with predictive coding the human reviewers also learn from the suggested relevant documents that are returned by the machine. Basically, it is a process where reviewers are presented with more relevant documents, more often and see much less non-relevant document that slow down the process of completing review. There are checks built in so that case managers can continue to review sets of potentially low relevance documents. If any of those documents are in fact responsive, they are re-coded and the system can apply this learning back to the rest of the corpus.

Corporations continue to acquire eDiscovery technology as they slowly convert from reactive fire drills to proactive business processes. The majority of early eDiscovery processing and hosting platforms available to service providers carried a relatively high per GB license cost. This model drove many service providers to develop their own software to remain competitive when prices suddenly dropped from $2,000 per GB down to the current $400-600 per GB. Now many of these providers have packaged their toolboxes into commercial software and are trying to convert service customers to software sales. All of this gives buyers an overabundance of choices when creating an RFP. It certainly keeps me busy with briefings and demos of new products every week. An offhand remark from a savvy CTO sent me digging into the potential pitfalls of some current open source General Public Licenses that work on a Copyleft or pay it forward model.

We all know that Office 2007 and later files are a different file format from your traditional DOC/XLS/PPT files, but I thought that it was worth exploring them with an eye on their potential impact in eDiscovery activities. First we need a simple explanation of what changed from Office 2003 to Office 2007 formats. Prior to 2007, Word, Excel and Powerpoint files were each proprietary binary file formats that required the application or a viewer to open. Office 2007 adopted an XML-based file format called Office Open XML that uses a common set of XML files within a compressed Zip container. These Extensible Markup Language (XML) files are simple text files that resemble HTML. The files now have an X or M added to their traditional file extensions to indicate whether they are flat XML or if they have embedded macro content. So DOC, XLS and PPT have become DOCX/DOCM, XLSX/XLSM and PPTX/PPTM. There are many advantages to the open formats, but we will focus on the potential discovery impact.

While reviewing the hundreds of new blogs and stories found by the eDJ search engine over the weekend, I realized that we had reached 5,000 stories in just 9 months. That translates to almost 600 unique news or opinion pieces per month after we screen out the thousands of reposts and odd environmental stories that happen to mention “Chain of Custody”. Looking back, it appears that the number of blogs and stories have been steadily growing since my May post on the new user customized RSS feeds and home page display. We were clearing about 20 stories per day back then and I know that we have gotten a lot tougher in the screening process. The eDiscovery market and the legal system that it supports has definitely been warming the recession chill of 2009.

Our earlier post on predictive coding potentially being the future of document review included a poll on whether or not predictive coding is defensible. The results so far are somewhat surprising in that the majority of folks believe predictive coding is not defensible. I suppose I shouldn’t be surprised; the legal industry is slow to change (and for good reason – it makes sense to proceed with caution when going into unchartered territory).

On December 1, 2010 new amendments to Rule 26 of the Federal Rules of Civil Procedure governing expert witnesses go into effect. Ever since 1993, testifying experts in Federal cases have had to carefully manage all drafts and written communications with counsel in the expectation of having to produce everything to the opposing counsel. This directly contradicts that usual assumption of attorney work product privilege protections and has led to inadvertent waiver and dramatically higher fees. It is just more efficient to send early comments on depositions, questions for fact witnesses and such via email than it is to have to leave a message and then schedule a conference call. Moreover, I would generally not bill for a quick email question while I have to recoup the time for these calls. Most technology savvy experts have had to adapt work practices to minimize the creation of discoverable documents. They will overwrite the same report instead of creating draft versions, read paragraphs over the phone instead of sending early opinions, use Webex to preview demonstratives and generally leverage collaborative technologies that do not actually generate email.

Analysts are told they are crazy all the time (and in some cases, it’s probably true). Years ago, I suggested that the business models of law firms would have to change because of the realities of eDiscovery. Most people I knew told me I was crazy. I even knew some general counsel that told me that if they were still paying hourly fees to their law firms in five years (this was circa 2005), that they would have failed in their jobs. Meanwhile, the law firm folks I talked to said it didn’t matter what corporations did – good law firms can command the hourly rates that they want. The recent Fulbright and Jaworski Litigation Trends Survey results pointed to an increase in fixed fee engagements, so it looks like the business model is, in fact, changing.

My September post looked at the provider sponsorship of Legal Tech New York from 2008-2011 as an indicator of the how our industry has reacted to the economic recession. At the time, I noticed quite a few players who had either quietly disappeared or been acquired in the last couple years. Merger and acquisition consolidation is a sign that eDiscovery is maturing and integrating into the larger corporate technology market. I thought that it would be interesting to make a quick roll call of software or service providers that have either disappeared or been acquired since the recession put the squeeze on the market.

The clear trend is that corporations are taking control of eDiscovery and bringing functions on the left side of the EDRM – identification, collection, preservation, and elements of processing, analysis, and review – in house. The goal is a more proactive approach to an inherently reactive process. But, the evolution is still a slow one. Inevitably, most corporations still take a matter-by-matter approach to eDiscovery.