eDiscovery Software Solutions: Lessons Learned

By Joseph Raczynski

eDiscovery software solutions are invaluable in the litigation preparation process.  However, choosing a tool and implementing it poses challenges to law firms.  In the last session of ILTA 2013 a panel discussion of William Kellermann of Wilson Sonsini, Chad Ergun of Gibson Dunn and David Hasman of Bricker & Eckler discussed the implementation of their discovery solutions including the models and workflows.

Software Selection Process:

Wilson Sonsini chose iPro e-Discovery suite based on some fascinating independent analysis.

They used a white paper written at George Mason University’s engineering program.  The premise is based on SysML.  The paper states, “SysML is a general-purpose graphical modeling language for specifying, analyzing, designing and verifying complex systems that may include hardware, software, information, personnel, procedures, and facilities.”  They applied the model to the software decision making process.  The selection process allowed for seamless workflow by establishing waterfalls for decisions and made the application defensible.

The other two firms, Gibson Dunn and Bricker Eckler both chose Relativity.  They based their decisions on the high level of support that Relativity offers; predictive coding and that analytics were ready out of box.  Lastly both firms felt that the application could handle a range of document sizes from small to large.

Contract Negotiations:

The Gibson Dunn negotiations lasted two months.  While every member of the panel eschewed the subscription model currently en vogue, they accepted it as the current state of the e-Discovery business. In Gibson’s case, it was cumbersome figuring out how many seats of Relativity they needed. Their previous system Concordance did not track users.  Ultimately they started with 100-150 users to test acceptance and now they are at 600 users.

Bricker was deeply concerned about the subscription model as well and therefore limited usage for fear of breaching their number of user’s allotment.  If they did surpass their quota this small firm would incur a $50,000 charge.

To underscore the general distain for the subscription model Wilson Sonsini weighed in as well.  They are troubled that subscriptions will become a consumption model.  The flaw in the consumption model is the inability to pass along the per gigabit pricing to their client.

Installations:

Gibson found the hardware necessary for Relativity difficult to comprehend as the numbers of variables; people and usage, can fluctuate.  Their answer was to virtualize their entire architecture.  They also used a SAN for storage creating elasticity with memory and CPU for small and large cases.

Wilson Sonsini had a unique perspective.  For operational use they established a local server which was faster.  Staging data for them works in the cloud while the heavy processing of data is on an in-house solid state drive for speed.  Ultimately Wilson Sonsini cautioned about how long it can take to set up a server.  They suggested this can take weeks to build.

Actual Software Install:

All three firms echoed the same advice for the actual software installation:

  • Make sure you plan it out
  • Have a dedicated project manager at the firm and with the vendor
  • Get access to a knowledge base for the product you are installing and create one for yourself inside the firm
  • Confer with your peers on their experiences for installation
  • Test, Test, Test.

 Lessons Learned:

The main theme during this conversation of orchestrating a software installation dealt with planning.  Map everything and create templates on how users will interact with the application, their data, and the overall workflow.  They also reiterated that doing as much pretesting as possible, including load testing i.e. 200 people hitting the service at the same time, is paramount.  Lastly using tools like a project management Gantt Chart will help determine dependencies and produce sequential alignment.

 

 

 

eDiscovery Trends: New Technology, Employment Affects & Native File Productions

By Joseph Raczynski

eDiscovery continues rapid technological evolution and significant adoption across law firms.  At this ILTA session David Cowen of The Cowen Group and Steven Clark of Lathrop & Gage facilitated an open discussion, with standing room only, on the hottest topics in e-Discovery.  The subjects covered in this forum were “New Technology Trends and Tools,” “Employment Trends,” and “Native File Productions.”

New Technology Trends and Tools

TAR (Technology Assisted Review) was discussed at length.  Everyone in the room understood the importance of these types of tools in discovery which create efficiency and better results.  Multiple firms had utilized TAR to prioritize linear review.  The goal is to help establish focus for later human review.  However the inescapable theme was fear of TAR.  The trepidation surrounded the importance of proper identification of documents and review.  Firms lack in-depth experience with these tools.  Ultimately it was discussed that education should assuage these fears while people continue to test TAR.

Some other trends with technology and e-Discovery included:

  • Predictive Coding: the biggest challenge is defensibility of using it and how much it can be trusted.
  • Firms are relying on partners/vendors to help train and make sure the e-Discovery tools work
  • e-Discovery consultants are being hired more
  • In the future the use of tools will target specific datasets rather than hitting all of the information as most do currently

Employment Trends

With all of the adoption of new technologies there are many impacts on employment. There was a flurry of important points discussed.

  • 50,000 law students graduated in 2012 and there were 15,000 law jobs available
  • Many new positions are being crated as they relate to the new technology tools
  • Salaries are falling. There is a glut of people in the business, many of whom may not have the newer skills
  • A talent flow issue has popped up. Many attorneys are coming into law firms from outside the law firm world. Some are coming from the consultancy world of PWC and Kroll while others are previously vendors dealing with the technical piece.
  • In 2009 one law firm processed 45 TB of information using 165 people. Today the firm would need 30-35 people to handle the same amount of data.
  • Certifications are fine, but most of the firms that spoke would prefer real experience in e-Discovery.
  • The MVP in a law firm now is the triumvirate; a legalist, technologist and project manager

Native File Productions

Another hot topic discussed pertained to the use of native files in production of e-Discovery.  One individual mentioned that native files make little sense to use.  He noted that they are expensive and unnecessary except for Excel or a few others formats.  The best solution is to use quasi native production as a viewer.  Since native is so expensive to produce, the best example illustrated was describing the difference between a picture in color verses black and white.  It might be nice to have color, but do you really need that for document review?  The economic aspect makes it cost prohibitive currently.

The overall sense from the discussion was that we are in a new age of discovery.  The effects of these technologies are far reaching.  It is altering the business of law at firms impacting employment, resources, education, and efficiency.  As with any transformative technology there will be some discomfort but ultimately firms will be stronger and clients better served with e-Discovery tools.

Law Departments and Cyber Security: Addressing the Scary Stuff

By Joseph Raczynski

Law firm security bears one of the softest underbellies within the world of professional services. This alarm was sounded during an ILTA panel discussion surrounding security with Michael Russell of Liberty Mutual, Brian Donato of Vorys Sater, and Natalie Fedyuk of KPMG.  The consensus from the group was that law firms have more possible exposure to threats due to their complicated handling of highly sensitive data that crosses the spectrum of (PII) Personally Identifiable Information.

According to the panel, a recent investigation called the Mandiant Report cited one of the largest threats to law firms outside of the United States is China.  The evidence supports that the Chinese Army is attacking law firms because of their traditionally low levels of security and their highly sensitive information.  In one example a law firm had been attacked and the email addresses released of military officers who were being investigated for atrocities in Afghanistan.

With countless successful breaches occurring, the panel focused on how to create better safeguards.

 

  • Manage Vendors: Do a risk assessment of your vendors. Make a security part of the RFP process so that there are tactical steps to support a management strategy.
  • Governance: while security software is important it is a small part of the whole. Make sure a process is in place to govern all aspects of data flow, access, audits, and compliance.

Establish informational audits for internal personnel and vendors which include the following:

  • Input/Intake
  • Issue Questionnaire
  • Conduct Review
  • Complete Questionnaire and Report
  • QA Review
  • Issue Questionnaire and Report
  • Closing meeting with Vendor

Ultimately all firms should seek out best practices to protect themselves.  They recommended beginning this process by adopting and enforcing a security controls framework.  The LegalSEC “Top Ten” was considered the place to start for implementing proper controls as well as audits.

Ultimately to eclipse the mounting threat of cyber assault on law firms, the panel stressed several salient points.  They stated that creating a very thorough risk assessment for all parties, and establishing a governance process was most important.  They also highlighted that diligently seeking out best practices for data destruction, incident response, and considering a cyber-insurance policy, just in case everything else fails was invaluable.