By Matt Berry
Matt Berry is Founder and President of Lateral Data, LP, and is responsible for strategic planning and technology initiatives in addition to managing the company’s growth mission and operational objectives. He received his Bachelor of Arts degree from Rice University and his Juris Doctorate degree from the South Texas College of Law. He is licensed to practice law in the State of Texas. For more information please visit: http://www.lateraldata.com.
As the complexity of a process increases, so typically does the related cost and needed expertise. With e-discovery, this complexity can increasingly intrude on a company’s options to pursue costly litigation. Companies and law firms are battling the sheer amount of data that is produced in the typical workplace. This data is growing exponentially as e-mail, chat, and even mobile messaging supplant paperwork or old fashioned conversations as the communication methods of choice. As the amount of available data rises, the complexities of managing, organizing, and dissecting the data follows a similar trajectory. Because of the high cost of typical piecemeal e-discovery processes, many companies quickly realize these costs can surpass the payout of a settlement. They might have the willingness and strong case to bring the issue to trial, but the economics often just do not make sense. Putting together a better e-discovery plan will allow companies and firms to cut into costs and focus on the actual defense of those cases and will minimize the disruption in business operations for the nonlegal team members, allowing them to continue focusing on their day-to-day tasks.
Where to Start
Legal issues are no longer just the concern of the legal department. When lawsuits present themselves, the information technology (IT) team needs to be up-to-date on the best practices for collecting and archiving documents that might be used in any litigation. Performing quality ediscovery is still complex and requires technical expertise that will only be found from trained and reliable staff. Legal and IT need to proactively work together to implement document retention and deletion policies, including any special rules for e-mail communication or even chat logs from business intelligence collaboration software. IT staff as a rule enjoy process and documentation, which can prove invaluable when a judge is asking detailed questions about steps taken during e-discovery. Legal should work with IT from the beginning to set standards and also rely on their technical experience for tasks such as de-duplicating or retrieving deleted files. Some larger legal teams might even place their own IT staff person who has legal training into the larger IT department to form a fully integrated team. IT must understand that all data can potentially be evidence and their technical processes need to provide 100% backup for all critical data. The duty to preserve this evidence, as in any litigation, is a critical responsibility and special steps and procedures must be in place to ensure that this data/evidence, is not inadvertently deleted or destroyed, and instead is preserved in accordance with the law. The legal team should build an understanding of the challenges faced by the IT staff and provide reasonable integration deadlines that would not be rushed, which could possibly introduce errors. Giving the IT team some context and guidelines on which documents or files to flag or store in a separate environment is vital to e-discovery and other ongoing legal matters. The IT developers should know about counsel’s schedule and typical scenarios such as the time between filing of a case and the need for documents.
Current e-Discovery Software
Having an internal integrated plan in place will help in the e-discovery process, but it would not tackle all the present inefficiencies. Although more and more law firms and corporate legal departments are looking to bring the e-discovery process in-house, the majority of firms and corporations (through firms) still use a third-party litigation support vendor for many of these tasks. Most of these vendors have separate buckets for each step of the EDRM (i.e., collection, processing, review, delivery), with data being transferred from pail to pail in turn. The piecemeal approach became the standard because software companies developed e-discovery technology as a set of individual solutions addressing the separate steps the process. Each step is unique and poses certain development challenges. In the collection phase, someone has to actually “get” all of the data from hard drives, backup tapes, mobile devices, on-premise and cloud servers, and any other electronic source. Once collected in a centralized location, ideally the data is indexed with full text search so all the documents come together in one place and are searchable. A quality solution provider will enable multiple layers of data filters that allow you to search—for example, only Microsoft Excel documents created from November 15th to January 23rd, and that include the words “commercial real estate.” Once the data is filtered and placed in a review platform, attorneys and staff can look at the documents one by one and code them related to different issues. More sophisticated review applications, however, will leverage technologies to enable reviewers to quickly review the pool of relevant documents through advance features such as near-duplicate analysis, keyword algorithms, and conceptual analysis. The final stage of delivery involves sending documents to the opposing side in a readable and searchable format. While firms and companies can find a vendor that is able to perform all of the e-discovery tasks, that vendor is still likely using a different software provider for each stage of the process. Historically, each piece was developed as its own task, without thought given to proper integration with the other steps. While each application is critical to the process, having multiple software solutions leads to errors and inefficiencies. The vendor needs to manage the data that hits several different points along a journey, and if problems arise it can be difficult to find the error in the chain. Having several pieces of software means the vendor typically needs a half-dozen experts on staff to manage the idiosyncrasies of each interface. That leads to increased overhead for the vendor due to unnecessarily high staffing requirements. Those higher costs are passed on to the law firms and the law firm passes those costs along to the client.
The Integrated Approach
Companies, law firms and vendors can achieve much greater efficiencies by introducing a system that uses a single software method for all of the steps, from collection through delivery. Usage of a single software platform allows better flow between steps and greater overall efficiency, with much lower chances for introduced errors. Integrated and seamless e-discovery processes provide less opportunity to overlook or misplace vital data. With multiple systems you have a series of importing and exporting tasks that can introduce errors or move data to the wrongly coded category. With a unified system you are confident the data can always be found as there is no “weak link” where data could be stuck in a different tool. Greater efficiencies come from not having to backtrack or perform in-depth sleuthing to locate that one missing file that could prove the tipping point for the case. The integrated approach also offers substantial cost benefits above the piecemeal model. Choosing a vendor that runs five types of disconnected software requires covering five sets of costs for related licenses and training. The sum of these costs quickly becomes greater than the potential reward of actually bringing a strong case to trial and avoiding costly settlements. While the integrated approach pays dividends when implemented correctly, the results are always dependent on the quality of the solution provider. Just because they have a unified software approach, they still need the knowledge to run each step. Providers that have excelled in the collection of e-discovery data for many years that then quickly develop and introduce a review and filtering platform, need to be able to demonstrate the quality of their processes to deliver the total solution, not simply excel at one piece.
Putting it Together
E-discovery implemented and performed in a more integrated setting will remain complex and require the help of IT personnel regardless of how user-friendly it might become. Best practices— including inter-department collaboration and choosing an integrated vendor—will boost efficiencies and related costs and allow a sharper focus on research and litigation. While companies with an integrated and less costly e-discovery process would not take every case to trial, they do have more leeway to explore options and pursue stronger cases farther down the line to reach verdicts in their favor.
Viewpoint, now in Version 5.0, is currently available for licensing. Lateral Data will be exhibiting Viewpoint at LegalTech West, May 17-18 at the Westin Bonaventure Hotel. For more about Viewpoint, visit the company’s exhibit at Booth 512, log on to www.lateraldata.com, or call (877) 592-8585.
About Lateral Data:
Lateral Data, LP is a software development and data processing company headquartered in Houston, Texas. Founded in 2003, the company has focused its software development and services efforts in the e-Discovery market; its flagship software application, Viewpoint™, covers the primary components of the Electronic Discovery Reference Model, bringing end-to-end simplicity and affordability to service providers, corporate legal departments, law firms and OEMs. Viewpoint is available stand-alone or for multi-tenant environments. To learn more, visit www.lateraldata.com.
