Electronic Discovery & Computer Forensics : RenewData : Austin, Texas

By Bob Little
Chief Marketing Officer
RenewData

I read with great interest two of Ralph Losey’s recent blogs.

The first, "Trial Lawyers Turn a Blind Eye to the True Cause of the e-Discovery Morass",  discusses the Interim Report & 2008 Litigation Survey, a joint project of the American College of Trial Lawyers task force on discovery and the Institute for the Advancement of the American Legal System, The thrust of the report is a “concern that discovery is increasingly expensive and that the expense and burden of discovery are having substantial adverse effects on the civil justice system.” The report lays the blame for this on the new rules for discovery and a lack of control exercised over the process by the judiciary.

Ralph makes the case for including a lack of technical competency by trial attorneys as a key contributing factor. “We need to admit that most of us are deficient in understanding the new technologies that drive today’s world. As a consequence, we no longer understand the technological media in which our clients operate. We do not understand the evidence crucial to the outcome of most cases. We do not know where to find it, nor how to gather it, nor how to look at it properly when we do.”

Ralph goes on, “We have delegated too much to e-discovery vendors, some of whom are driven by immediate profit motives, not the best interests of justice and efficient dispute resolution.” As a representative of one of those vendors, I have to acknowledge the truth behind that statement. And just as Ralph applies Walt Kelly’s famous insight to his fellow members of the bar, we have to also accept that “We have met the enemy and he is us.” Read my own recent blog on just this subject.

Ralph's second blog, "Lawyers Behaving Badly: Understanding Unprofessional Conduct in e-Discovery", deals with the related topic of ethical conduct in eDiscovery. I was intrigued with his discussion of the American Bar Association’s Model Rules of Professional Conduct, in particular his take on Rule 1.1 and the impact lack of technical knowledge has on the balance required in maintaining legal ethics. Ralph makes a suggestion that law schools and firms need to address the lack of technical knowledge directly by requiring appropriate training.

I certainly agree that this is needed. However, I think there are critical interim steps that can be taken. There are vendors in the community who have established solid credentials and reputations. There are progressive organizations, such as RenewData, who have made strong committments to excellence and transparency in process and pricing. Now is the time for a true partnership between law firms and the discovery companies. This means that law firms must be willing to focus on more than price as a means of selecting technology partners. And discovery firms must aim at earning long term relationships as trusted advisors, not merely as opportunistic vendors.

eDiscovery and technology are here to stay. Together, the legal community and knowledgeable eDiscovery firms can establish a new type of relationship that builds upon their respective expertise to find our way out of the discovery morass.
 

• Email This
• Print
• Comments (1)
• Trackbacks

By: Joe Garber
Sr. Director, Product Marketing
RenewData

I just spent the last several days at ILTA 2008, the 31st annual conference of the International Legal Technology Association. This event, which brings together some of the brightest minds and most technologically savvy companies in the world, is a great place to get a pulse on the most-urgent legal challenges facing law firms and corporations today.

Not surprisingly, a topic that received a good deal of coverage in the breakout sessions was how to better manage the risks associated with electronically stored information (ESI). It is simply no longer possible to for organizations to ignore the pain that NOT being prepared for eDiscovery can inflict. As a result, specific topics that generated buzz over the past several days naturally included:

• Applying retention policies – Increasingly, enterprises want to automate the process of disposing of ESI in accordance with their retention policies. This not only lowers storage expenses, but it also lowers the risk that outdated data will be taken out of context.
   
• Enforcing legal holds – The ability to search for, and lock down, all data that may be relevant to a given case is a must have in today’s legal environment. Courts are no longer lenient on mistakes that result in lost or indefensible data.
   
• Leveraging advanced search tools – The amount and complexity of data in today’s enterprise requires tools that go beyond the simple keyword searching that has been the norm for many years. Counsel must be sure it has all data relevant to a case and has visibility into the inherent risks that this data presents.
   
• Driving efficiency into legal review – It’s no secret that the most-expensive aspect of eDiscovery is legal review, and organizations are now looking for tools to dramatically lower these costs. Two of the most common solutions discussed this week were: 1) the use of Early Case Assessment (ECA) tools that allow the organization to do some pre-analysis and formulate a legal strategy before review; and 2) the use of advanced analytics tools to help attorneys doing the review become more efficient.

Each of the above is right on target as a measure to lower an organization’s ESI-borne risk. But there’s a more fundamental problem that each organization must solve first, before focusing on these exciting initiatives.

My daughter recently came to me and said she wanted to throw a tea party for all her stuffed animals. She had an extravagant plan of lining them all up in a special order so her closest ‘friends’ got special treatment. What she forgot was that she had hidden her animals all around the house over the past few weeks in a toddler’s game of hide-and-seek. It took several minutes to explain to her that she had to find all of her friends first before she could evaluate and sort them to her liking.

This is a similar realization that many organizations have as they start to prepare for eDiscovery – albeit with a little less sobbing… in most cases. In the world of ESI you first have to know where all your data is, what is contained within that data, and then (generally) consolidate it in one place before you can uniformly manage and search that information. And nowhere is that task more difficult than with your historical information sitting on backup tapes – where data may be scattered throughout your organization and in formats that aren’t easily understood by today’s technology.

The interim (and highly important) step in preparing for litigation is thus conducting an inventory of what you have on backup tapes, deleting those that you are no longer required to maintain, and then centralizing this data in a historical archive so you can optimally leverage the above tools and effectively protect your organization from risk in the future. From my discussions this week with organizations fighting the eDiscovery fires on the front lines, it became clear that many have made this key step a priority for 2008-2009.

If you are one of those forward-thinking enterprises, I offer congratulations. The foundation you are setting will pay off in spades. The next challenge you have will be deciding whether you want to do that work yourself or outsource it to a third party – the general rule most speakers talked about this week was to outsource unless you are 100% confident that you have the technology, processes, and people to capture and preserve all data, without exceptions, errors, or breaches in security. If you’re not one of those organizations that will prioritize making your ESI more centralized and accessible, ask yourself why. Or more important, ask yourself how you plan to apply uniform retention policies and legal holds across all your data and how easy it will be to see potentially case-altering linkages in your data if it’s not all fully visible to you. And if you don’t have an answer that allows you to sleep well at night, feel free to give me a call.

• Email This
• Print
• Comments
• Trackbacks

By Bob Little
Chief Marketing Officer
RenewData

Like it or not, eDiscovery providers have a reputation for under promising on estimated costs and over delivering on actual bills. This is something that we just wouldn't accept in our everyday lives. Imagine trying to buy a sweater using a per stitch pricing model. You'd really have no idea what the final price would be and could end up with the world's most expensive sweater or perhaps a sweater with only one sleeve because you can't afford the entire garment. Budgeting for eDiscovery is certainly more complicated than a sweater purchase. But this just magnifies the risk that budget uncertainty brings to the process.

To a certain extent, this was acceptable and even made sense back in the infancy of our market. Litigants and their advisors didn’t really know what they were seeking or what efforts would be required. And vendors didn’t know what would be presented to them and exactly how to fulfill the requests. Each project was somewhat unique and there was much on the fly development of techniques, tools, and processes. Pricing was therefore generally a custom arrangement and total costs inherently unpredictable. Eventually a correlation was seen between the costs to deliver the services and the volume of the information that was processed and so pricing generally evolved to a fee per gigabyte model. This allowed customers to begin comparing potential costs between vendors but still gave little if any budget certainty to the customer since few projects’ size could be predicted in advance.

However, our industry is no longer immature. Service providers, especially top tier providers, have seen many projects with a full range of variables. As vendors, we know what the typical types of media are and what the resultant volumes likely will be. We have enough aggregate information to develop a price model that will give our customers the budget certainty they need by basing our pricing upon factors that can be readily counted and controlled at the onset of a project. For example, while customers often have no realistic estimate of the final volume of information that will be processed for eDiscovery, they do generally know how many custodians are of interest. A per custodian processing fee gives customers a better sense of what their discovery costs will be at the beginning of the project.

Our customers have become more sophisticated. Our understanding of the nature of eDiscovery projects and the cost parameters are likewise more sophisticated. It is time for some of the risk to shift to the vendor community. At RenewData, we’ve made a commitment to transparency and predictability in our pricing. Click here for more information. We believe this is the future model for eDiscovery pricing.

• Email This
• Print
• Comments (2)
• Trackbacks

By Bob Little on July 22, 2008
Chief Marketing Officer
RenewData

After a recent weekend away, I returned home to find that one of my neighbors had backed into my brand new car. Fortunately, he is a stand-up guy and left a note with genuine contact information. (Thanks, Lee!) And what, you may ask, does this have to do with e-Discovery? Any company faced with litigation is going to go through some of the same mental steps that I did over the past few days.

I am newly resident in Texas and don’t really know the laws associated with accident liabilities here. There is a sense of dread at having to learn this new process and fear of making a mistake costing me money in the long run. How much trouble is this going to be for me? Who do I need to contact? What actions should I take to protect myself? Can I trust the insurance companies? How do I select a repair shop that will do quality work?

Shift this scenario to the corporate counsel facing litigation. Some of those same questions are likely to surface. How disruptive is this matter likely to be to myself and my company? Just what are the relevant discovery laws and how will they impact my actions? Who do I need to contact internally and externally? What actions should I take to protect myself and my organization? Can I trust the legal and technical advice I will receive? How do I select service partners that will do quality work? There is that same sense of dread and fear except the magnitude of the situation is greater and the potential negative impact from a mistake can have far larger consequences.

Advance planning and preparation are the best ways to mitigate this situation. Just as having an insurance policy and understanding the claim process can help resolve much of the unknown around accident liability, developing and implementing a litigation preparedness plan can give a corporation a big advantage when the need to respond to a legal or regulatory matter arises. You should familiarize yourself with the FRCP (Federal Rules of Civil Procedure) and its state corollaries. Your plan should cover what information to keep and for how long. It should be a comprehensive plan that covers both paper based records and electronically stored information (ESI). It should mandate a legal hold process to suspend deletion of data when preservation is required in response to potential litigation. And it should clearly define steps to establish a defensible chain of custody for that data.

Selecting an insurance company or auto repair shop solely on price without considering the type of expertise or their reputation for delivering timely service of high quality will only add to the unease and difficulty inherent in an already stressful situation. Similarly, your company should spend time examining potential e-Discovery vendors in advance of the need to use their services. Evaluate the vendor’s history and any recommendations you may receive from other businesses. You want to find out everything you can about the vendor, with an eye toward what they know, both in legal and technological terms. They should have a reputation for quality service and for fair and predictable pricing. And they should be a true partner for you, able to make sure the technology on all sides interfaces properly and able to support you as necessary in court.

None of these steps will eliminate all the worry and stress from either situation. But they will help make them manageable and less disruptive. For more guidance on how to be better prepared for litigation and how to protect your data for legal action, look for information from the Sedona Conference or The Electronic Discovery Reference Model, two organizations that RenewData actively supports.

Sedona Conference 

The Electronic Discovery Reference Model

And of course you can visit www.RenewData.com to find more information on e-Discovery, litigation readiness, or ESI Risk Management.

• Email This
• Print
• Comments
• Trackbacks