In the latter part of the last decade — ok, the fall of 2009 — we completed what we call the trifecta:  full coverage of three of the premier electronically stored information (ESI) and e-discovery events for the litigation industry:  The Masters Conference (click here), the ACC Annual Meeting (click here), and the Georgetown Law Advanced E-Discovery Institute (click here).

As expressed at all of these events we are in “the perfect storm”: ever increasing data volumes; more litigation and government inquiries, and skyrocketing e-discovery costs. 

And if we learned only one thing about the explosion of ESI and corporate data it was this: Craig Ball, Jason R. Baron and Ralph Losey can scare the bejesus out of you.  These guys think in terms of exabytes … and beyond.  Although Jason and Ralph try to make it more palatable by doing it to the tune of Darude’s Sandstorm (click here).   And Craig Ball did assuage our concerns (a bit) by telling us that while we live in an infinite universe it is all manageable.

At all of these ESI events it was stressed — stress being the operative word — that in-house legal departments have been forced to cut their budgets just like their “sisters”, the law firms but with a greatly increased workload.  And the end of 2009 and the beginning of this year saw survey after survey tell us/show us that ESI and e-discovery requests would simply skyrocket.  As one of many examples, see the Enterprise Strategy Group study (click here).

So companies are looking to innovate their way out of the recession, strategically cutting costs, bringing services and processes in-house to gain more control, and doing more than just “quickly brandishing an umbrella looking for a place to seek shelter” quoting the  Enterprise Strategy study.

But as one memorable GC told us at the ACC Annual Meeting in Boston last year “the reality is we need to get control of our ESI — our data data data which seems to be everywhere!! — at the very beginning of our process.  Not just at litigation time”. 

A nightmare.  Or two … or three …. for general counsels everywhere.

And while it is impossible for a general counsel to isolate the effects of software from all the other efforts presumably made to rein in outside counsel and other spends, corporate law departments can control spending via technology.  And there are vendors and technology galore as ESI management, e-discovery, governance, compliance and risk are all melding into one pot.  And those great folks at Gartner have provided us with a nice summary of the e-discovery vendor landscape as we begin 2010 (click here).

So as LegalTech New York comes quickly upon us (click here) we are launching a new series whereby we will post detailed interviews we conducted over the last several months with the thought leaders in ESI management and e-discovery, with links to articles, blog posts and websites, focusing on ESI management and e-discovery for the corporate law department, and the law firm. The series will run up to and through LegalTech, and beyond. We have some 30+ interviews in the queue which will include:  Dean Larry Center, Bob Eisenberg and Nicole Steckman of Georgetown Law CLE; Tess Blair of Morgan Lewis; Jim Moore of Merrill Corporation; Ron Friedmann of Integreon; Deborah Baron of Autonomy; Tim Williams of Index Engines; Steve d’Alencon of CaseCentral; Nigel Murray of Trilantic; Virginia Henschel and Rob Robinson of Applied Discovery; Mary Mack of Fios; Adam Cohen of FTI Technology; Chris Dale of the eDisclosure Project, plus many, many more.

Our intent is to provide a background in finding potential cures for the ESI/data management nightmare as seen through the eyes of the major players in ESI management and e-discovery:  what technology is out there, who is out there, how do you sort through all the technology, procedures, best practices, etc.  Most of these folks will be presenting and/or exhibiting at LegalTech in a few weeks so we’ll also tell you where you can find them at the show. 

And a bit later in this series we will have interviews with Jason R. Baron, Ralph Losey and Craig Ball who will put all this tsunami of “data! data! data!” in perspective for us.

But we start off this series with some interviews with some extraordinary companies that have recently come onto the ESI/e-discovery scene.  First up:  an interview with Andy Wilson, co-founder of Logik.  For our full interview with Andy click here.

For all interviews and posts in this series click here. 

In our series “Data! Data! Data!” – Cures for a General Counsel’s ESI Nightmares”  we have been interviewing thought leaders in the ESI management and e-discovery universe who can help us navigate through “the perfect storm”:  ever increasing data volumes; more litigation and government inquiries, and skyrocketing e-discovery costs.  That series will continue next week for several more weeks with interviews that include Deborah Baron of Autonomy, Brandon Daniels of CPA Global, the EDRM godfather George Socha, plus many more.

But everywhere you look,  the quantity of information in the world is soaring.  For instance, during 2009, American drone aircraft flying over Iraq and Afghanistan sent back around 24 years’ worth of video footage. New models being deployed this year will produce ten times as many data streams as their predecessors, and those in 2011 will produce 30 times as many.

According to one estimate, mankind created 150 exabytes (billion gigabytes) of data in 2005. This year, it will create 1,200 exabytes. Merely keeping up with this flood, and storing the bits that might be useful, is difficult enough. Analysing it, to spot patterns and extract useful information, is harder still. Even so, the data deluge is already starting to transform business, government, science and everyday life.

This week’s Economist has published a special report that takes a close look at this data deluge covering such issues as how information has become superabundant, how information is changing business, how internet companies profit from online data, news ways of showing data, etc.

To access the Economist special report click here.

The Georgetown University Law Center Department of Academic Conferences and Continuing Legal Education, aka Georgetown Law CLE, are the folks that bring us the Advanced E-Discovery Institute, the E-Discovery Training Academy and the Corporate Counsel Institute, amongst other relevant programs.  The brain trust behind it all is composed of Dean Lawrence Center (Larry to his friends) and Nicole Steckman – with pride of place going to Bob Eisenberg.   

Larry Center is Assistant Dean for Academic Conferences and Continuing Legal Education at the Law Center. He has overseen this department since 1985. Georgetown operates the largest national CLE program of any law school in the United States, including major annual conferences in corporate, real estate, bankruptcy, civil rights, state and local tax, tax-exempt organizations, international trade, antitrust and intellectual property law. The department also works closely with Georgetown Law professors on the planning and execution of academic symposia on a variety of scholarly subjects.  

Dean Center has been working in the field of continuing legal education since 1980, and is considered to be one of the leaders of the CLE industry. He is a former President of the Association for Continuing Legal Education (ACLEA) and a founding member and former Chair of the Section on Continuing Legal Education of the Association of American Law Schools (AALS). He has spoken on many continuing education issues at conferences and seminars throughout the United States and Europe, and has published numerous papers on adult learning topics. He consults on management and leadership issues for law firms, law schools and legal organizations, and teaches “The Seven Habits of Highly Effective People” course for Georgetown University employees as part of the University’s Management Certificate Program. Dean Center is a 1974 graduate of the Law Center and a former member of the American Criminal Law Review. He received his B.A. from Syracuse University (Phi Beta Kappa) and is a member of the District of Columbia and Maryland Bars. 

Nicole Steckman is the Director of Marketing and Business Development for Georgetown Law CLE, where she oversees all marketing campaigns for programs and publications.  Nicole is also responsible for the creation and negotiation of contracts and joint venture agreements for the department.  Prior to moving to Washington, DC, she worked for the Kansas Trial Lawyers Association as the CLE Director and the Kansas Bar Association as a Program Coordinator.   She earned her B.A. from Washburn University in Topeka, Kansas and her M.S. from Georgetown University.  

Bob Eisenberg has a special relationship with Georgetown University Law which we will get to shortly.  Bob is Vice President for Consulting Services for Planet Data, and was formerly Vice President of E-Discovery Consulting at Capital Legal Solutions.  He is also a former Principal in the Discovery Services Practice Group of the international consulting firm Navigant Consulting in Washington DC. 

But we won’t stop there.  Bob has over 30 years experience in the practice of law and the rendering of consultative services relating to the discovery of Electronically Stored Information (ESI), computer forensics, ‘proactive” electronic data preservation and retention and traditional paper-based litigation support services.    He frequently conducts seminars, CLE courses and other presentations on the subjects of e-discovery, computer forensics and electronic records management.  Amongst other professional roles, Bob has functioned in the capacity of an expert to Special Masters and professional development lecturer in electronic discovery, computer forensics and data preservation and retention for law firms through-out the United States. He has been a guest seminar leader at such firms as Williams & Connolly, Davis Polk, Holland & Knight, Dewey LeBoeuf, Weil Gotshal, and many others.   

And he is a founding member of  The Sedona Conference Working Group on Best Practices for Electronic Document Retention & Production (SWG), and has contributed in the creation of white papers on best practices for electronic data discovery and electronic record management for SWG.  

We caught up with all three on the campus of Georgetown Law Center. 

TPL:   The Advanced E-Discovery Institute at The Georgetown University Law Center.  What participants call “the intellectual’s e-discovery conference” which we had the good fortune to attend this past fall (for our coverage click here).  Larry, tell us how it started. 

LC:     Much of the good fortune experienced by the Advanced E-Discovery Law is due to Bob.  Bob approached me with the idea for the Institute following his participation in a different Georgetown CLE program in 2002.  At the time, we were the first national provider to host an e-discovery program.  Others have since joined us.  However, we remain the first and only national law school conducting an annual e-discovery conference.   

BE: Larry, thank you.  We know it couldn’t be accomplished without you and the terrific CLE Team implementing my original idea. 

TPL:   And Bob had a large part in its creation, yes? 

LC:     Correct.  Bob got it all started with assistance from the Sedona Conference and their members.  It then evolved in 2003 to have its own national advisory board. 

TPL:   The E-Discovery Training Academy is a separate program established by Georgetown CLE to provide comprehensive practical training in, more or less, the entire spectrum of e-discovery…Legal strategies, technological services, etc.  

LC:     [with a smile] Yes, again Bob’s idea.  The Advanced Institute is geared toward the experienced practitioner.  And we realized that we were leaving an entire demographic out.  With that in mind, we developed the Training Academy to teach the ropes of the practice of e-discovery to lawyers and practice support professionals.  

BE: It is important to note that the Academy is an offshoot of the Institute. 

TPL:   We’ll get to the Academy a bit later in this interview.  Let’s hear more about how the Institute was started. 

LC: Sure, what would you like to know?    

TPL:   The involvement/relationships of the university, e-discovery vendors, law firms, e-discovery luminaries.  I imagine Georgetown needs to be careful with relationships, presenters, etc.  What are the criteria to participate? 

LC: That’s correct.  The Institute has an Advisory Board comprised of the leading experts in the field of e-discovery and most of them have a strong relationship with Georgetown.  The Board has the authority to determine the agenda and the faculty members.  They are charged with selecting not only the most knowledgeable speakers, but those with outstanding public speaking skills as well. 

NS: Considering we are part of a major law school, the politics are a little different than with a private business or other entity.  We believe one of the features that sets us apart, in addition to being the only national law school providing such a course, is we do not participate in “pay to play”.  As Larry mentioned, our goal is to provide the best and the brightest as faculty members at the Institute. 

TPL:   Well, I can say that it was one of the best conferences we’ve attended on e-discovery and that is based on the content covered, the experts/luminaries in the e-discovery field that spoke on the panels, and the interaction between the audience and the panels plus the informal sessions.  And that all-star U.S. judicial panel you had was great.  The judges participated on multiple panels, and even sat in on many of the sessions and provided input — both from the panels and from the audience in sessions they weren’t speaking at — and they made themselves available during the breaks and informal sessions.  It was a great “hands on learning” e-discovery experience. 

NS:  Thank you, Greg!  The kudos are greatly appreciated.  I’m thinking you might just be quoted in our next brochure as calling the Institute “a great hands on learning e-discovery experience.” 

TPL:   And frankly any conference that has Jonathan Redgrave running up and down the aisles with a microphone for questions from the audience is pretty classy. 

BE: Well, we are a working board.  We need to be certain that we earn our keep. 

TPL:   There were 18 sessions/panels and we could not cover them all.  We tried to focus on those most relevant to our readership, as diverse as it is.  But the program was incredibly thorough.  We had panels that provided an e-discovery case law update, a thorough discussion of unified communications (a bit of game changer in e-discovery), advanced search and retrieval technology panels, how e-discovery is handled in Federal Investigations, cross-border e-discovery and international data issues, to name just a few.

LC: We make a concentrated effort to stay on the cutting edge.  The Advisory Board meets annually to review the previous Institute and determine the hot topics of the moment.  Speaking of that, we just returned from that meeting at the end of last month, where the board brainstormed a list of potential topics for the 2010 Institute.  The planning committee, composed of the board members, will then cull it down to what you see as the final agenda.  

TPL:   But whereas early case assessment (ECA) was the mantra in 2009 —winnowing relevant data down to reduce the number of documents to review —  it looks like the “new new think” or emphasis in 2010 is predictive coding and the cloud, areas that were touched upon at last year’s session.  And recent developments in computer assisted review as evidenced by the study by Patrick Oot and Anne Kershaw (both participants at AEI last year) “Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review”.  Will there me a focus in 2010 on these areas? 

LC: [As he flips through the lists mentioned] It looks like cloud computing was a recurring topic as well as international or cross border e-discovery and criminal issues such as the FCPA. 

TPL:   Where else might you expand the program? 

BE: I’d like to see a separate track focused on litigation support professionals, as they are a critical and often over-looked player in the e-discovery processes. 

TPL:   Any thoughts about an Advanced E-Discovery Institute in Europe? 

LC: Perhaps; we definitely have some board members with a strong involvement in Europe and cross border issues.  Georgetown Law has placed a strong emphasis on transnational issues, and this is something I think our Dean would be interested in. We definitely have not ruled out the possibility. 

NS:  Good thing I made certain my passport was just renewed.  Sounds like travels may be in my future. 

TPL:   And what do you think is at the forefront of the e-discovery education process, the most important thing, the biggest challenge? 

LC: Bob, I’ll need to defer to you on this one. 

BE: Right now – I see the biggest challenge as balancing cost effective services with the need to “get it right.”

TPL:   Let’s chat about the E-Discovery Training Academy.  Don’t tell me: Bob again. 

LC:     [laughing]  Well, sort of.  Bob is quite the idea man.  We consulted with the Advisory Board as well as a focus group of litigation support managers at firms from across the country to see if there was a need for training and if we could help fill it.  The answer was a resounding yes and then we proceeded with the planning of the first Academy, held last year. 

TPL:   Can you detail the program for us? 

LC: Nicole brought this up earlier, but one of our goals is to remain as neutral as possible.  There are not service providers near the coffee or sponsors of materials or meals.  The program is focused on providing participants with an unbiased training explaining the nexus of technology and the law.  

NS:  I think it’s also important to mention that we follow the NITA model of “learning by doing” at the Academy.  It’s a hands-on process that keeps all the participants engaged.  There are some moments of lecture, but it’s not a week of  lecture eight hours a day.  Instead, it’s broken up with group exercises, demos and whatever else our creative faculty members develop to assist in achieving their learning objectives.

TPL:   Now, Nicole.  The Georgetown E-Discovery Law blog.  Well-designed, excellent content.  This is your creation? 

NS:     Well, thank you for the compliment.  It’s one of the projects I value most.  As part of a law school we’re in a unique position to further the knowledge base available on e-discovery.  And having the Georgetown Law name helps greatly in doing so. 

TPL:   Ah, so its primary function is to serve as an educational resource. 

NS:     Exactly. 

TPL:   Any expansion plans? 

NS:  As long as Bob and Larry are working together, I’m sure there will always be expansion plans in the background to keep me busy.  At one point, we have talked about establishing an E-Discovery Institute.  This would be a separate entity at the Law Center offering multiple training initiatives and a library of resources, including a journal.   

TPL:   Lastly, I’d like to ask about the Corporate Counsel Institute and your push into London this year. I understand this is new. 

LC: That’s right.  We’d like to build on the success of the Annual Corporate Counsel Institute, which has been held at the Law Center every March for the past 15 years.   The first Corporate Counsel Institute-Europe agenda will follow in the footsteps of the US iteration by including key government officials, leading attorneys and corporate counsel from major and international corporations as both speakers and participants.  Hope you can join us, Greg, on April 15 and 16 in London! 

TPL:   Nicole, Bob, Larry:  we greatly appreciate your time. 

LC:     Well, it was a pleasure, Greg.  We appreciate the opportunity to work you in the future.  And thank you for the great summaries of the Institute.             

Postscript:  You can find the latest program schedule including information about the next E-Discovery Training Academy and Corporate Counsel-Europe by clicking here.

The Posse List will be in London April 15th and 16th to cover Corporate Counsel Institute-Europe.

Reported by:  Gregory P. Bufithis, Esq, Founder and Chairman,  The Posse List

Craig Carpenter, Vice President of Marketing for Recommind, oversees all aspects of marketing at Recommind. He has extensive experience in the enterprise software,  information security, and eDiscovery industries, and is a frequent speaker and panelist at industry events. He is also an adjunct faculty member at the University of San Francisco, where he has taught graduate classes on high tech marketing, content management and digital rights management (DRM).

We caught up with Craig at this year’s LegalTech.

TPL: Recommind won top honors in the 2009 Law Technology News Vendor Awards. The readers of Law Technology News selected Recommind’s MindServer Search as the best product in the Knowledge Management Systems category.  Our congratulations.

CC:  Thank you. We have always worked closely with the legal industry, so that award means a lot to us.  Legal professionals work in one of the most challenging environments for enterprise search. They need to locate precise information under ever-shorter deadlines, with ever-increasing stakes. Many need to locate documents across multiple offices, often in different countries with different languages.  So we developed our solutions in close collaboration with law firms and legal professionals to address their needs. It was wonderful to have LTN readers validate those efforts.

TPL:  Give us an overview of your MindServer Search product.

CC:  MindServer Search is our flagship enterprise search product. It provides highly accurate and relevant search results through a simple, intuitive interface. It uses proprietary, machine-learning technology to automatically create concept models based on the  information within the enterprise. That gives it the unique ability to accurately identify and rank relevant information for each user without the need for additional input from the user.

For our legal customers, we also offer a popular Matters and Expertise module for MindServer Search, which enables them to find all relevant matter information and expertise within the firm. The module’s Expertise Location feature automatically updates areas of expertise based on work product, projects, clients, etc., which makes it simple to find attorneys with relevant experience on a particular topic, as well as the documents and matters associated with them.

TPL: And it’s built on Recommind’s CORE™ (Context Optimized Relevance Engine) platform?

CC: Correct.

TPL: Which is…

CC: The CORE platform is the conceptual search and automatic categorization engine that powers all Recommind products. It identifies distinct concepts within a document or data set, regardless of the language or subject, and organizes and prioritizes all documents accordingly.  The system is fully automated, so it does not require any thesauri, dictionaries or ontologies – although it can certainly work with them. CORE is what makes it possible for our search and eDiscovery software to deliver such extraordinary accuracy and automation.

TPL: At the IQPC eDiscovery event last month you said that Predictive Coding™ technology was now accurate enough to take the place of
contract reviewers.  Explain.

CC: There’s no doubt Predictive Coding is accurate enough – this has been proven in many cases. A number of AmLaw 30 firms have proven it by using Predictive Coding and comparing it to the results from contract attorney review (and partner review as well) on the same data. The results in every case were that they achieved better accuracy with Predictive Coding, and in the process saved 50-80% of what they would have spent on traditional review because contract attorneys were either not needed or were able to work far more efficiently (or both).  This is what we mean when we talk about revolutionizing the economics of eDiscovery; no one else is doing this.

TPL: But is the technology fully defensible? I am thinking of random sampling of the automated output data I have seen.

CC: Absolutely. It’s as defensible, or more so, than traditional review, thanks to random sampling of the output and the robust methodology that is part of Predictive Coding.  Technology is only part of the solution; the rest comes in the form of processes, workflows and methodologies which can only be devised in conjunction with customers (hence our close collaboration with our customers). In traditional review, for a number of reasons you don’t necessarily go back and sample the decisions made by the attorneys, which carries with it a certain amount of risk. With Predictive Coding you do, and you’re able to measure the accuracy of the review, both human and computer.  It’s a not-so-well-kept secret that linear review is typically not an overly accurate or consistent way to go about things, but it has been the devil we know. Predictive Coding is a quantum leap in document review efficacy and accuracy.

TPL: And judges have demonstrated that they consider automated review acceptable?

CC: In effect they have. Judges care about getting to a just result as efficiently as possible; they care far less about the means used to get to that result – so long as the means do not undermine the pursuit of justice.  So judges are not in the business of “validating” any particular technology or process.  That said, given the broken economics of today’s eDiscovery judges have definitely been expressing a fervent desire for a better approach to document review, and prominent judges like Judge Facciola, Grimm and Peck have indicated that technology can and should be brought to bear on the problem, because it can really help.  It’s important to look at how the top litigation firms have responded now that they have a mandate from judges to change the economics of eDiscovery. And if you look at the top firms in the world — WilmerHale, Morgan Lewis and Fulbright & Jaworski, just to name three —  they have made a commitment to Predictive Coding as the future.  That’s a very, very strong endorsement.

TPL: So whereas early case assessment (ECA) was the mantra in 2009 —winnowing relevant data down to reduce the number of documents to
review —  you think Predictive Coding is the “new new thing” for 2010?

CC: Yes, we think this is the year Predictive Coding will start replacing linear review left, right and center.  Everything is in place. The technology is capable, defensible and
In use by leading firms. And given that it cuts document review costs by 50%-80%, it’s hard to justify not using it.

TPL: So we are headed down the path to where machines can be statistically proven to be as accurate as human review?  Is the technology getting to the point where we can also winnow out the eyeballs — contract
attorney reviewers? No room for a human element and perspective?

CC: There will always be a need for human review in eDiscovery. But bear in mind that the traditional eDiscovery process relies on an outdated, paper-based model that requires attorneys to sit in a room and review terabytes of ESI, one at a time. That’s a textbook example of work that should be assisted by intelligent automation. With the continuing rise of eDiscovery, there will always be plenty of work for attorneys. Some firms, and some clients, will always want to have an attorney’s eye on every document – which does not at all preclude the use of Predictive Coding. Even in such a case, they can perform that task much faster and more consistently using Predictive Coding.

TPL: So you see automated review as a revolutionary, not evolutionary change for eDiscovery.

CC: When you consider how much most lawyers dislike change, it’s revolutionary, no question. Up until now eDiscovery tools have aimed to cull data down, which is a pretty small step in the evolutionary direction. Predictive Coding, by contrast, is a huge leap forward because it completely overturns the way document review has been conducted – which is by far the most expensive part and thus the root cause of the disease. Most estimates put review costs at 60-70% of the total cost of eDiscovery. Every other approach has tinkered around the edge of the problem. With Predictive Coding, we have fundamentally and permanently changed the economics of eDiscovery.

TPL: Last year we had an opportunity to see a demonstration of your product Insite Legal Hold, which is an ECA product providing processing, culling, collection and hold.  It seemed to literally “crawl” and index information from the many data sources a company has.  I assume it allows a company to conduct “live” and in-place exploration of data before applying a legal hold to quickly and efficiently locate and preserve potentially relevant data.  Tell us about it.

CC: Sure. Insite Legal Hold is our all-in-one software for Early Case Assessment, identification, preservation, collection and processing. And you’re right, one of its most distinctive features is its
Explore-in-Place technology, which enables users to find, sample and assess ESI before collection. That allows enterprises, number one, to conduct ECA as early as possible — which is the whole point with ECA — and number two, only collect the ESI they need to collect for any given matter.  This far more targeted and precise approach in turn significantly lowers eDiscovery costs and makes them identifiable and predictable from the very outset of a matter – which is a “game changer” for our customers.  It works hand-in-glove with our Axcelerate eDiscovery software for Predictive Coding and deep analysis. Together, the two provide the most accurate and cost-effective eDiscovery solution available.

TPL: We noted that Law Technology News also awarded Reed Smith LLP a gold medal for its intranet portal ouRSpace which utilizes Recommind’s
MindServer Search technology.  How did that come about?

CC: We’ve known Tom Baldwin for years. When he left Sheppard Mullin to come to Reed Smith, he had a vision of what he wanted to do to create a next-generation information system and infrastructure, which was highly
automated and highly intelligent, and was able to deliver the appropriate information to users when they needed it. We sat down with him to talk about his vision. It was a highly collaborative process where we helped him learn from what all of our other law firm clients have done–a benefit of being the market leader–but Tom had a terrific vision for where he wanted it to go. And now Reed Smith is reaping the rewards of his foresight and the collaborative effort. Their lawyers and staff have a significant competitive advantage because of their ability to access the exact information and expertise they need when they need it.

TPL: You have some other law firms on board [Morgan Lewis, Sherman & Sterling, WilmerHale, etc.] and we interviewed Tess Blair at Morgan Lewis as part of this series.  You also have some stellar enterprise clients: Marathon Oil, Bertelsmann, BMW, Verizon, etc. Is your client base equally split between in-house and law firms, or is it weighted toward in-house?

CC: It’s more evenly split. The two are in many cases interrelated with each other, certainly on the eDiscovery side. What we’re finding is that big legal departments and law
firms have a similar need for secure access to relevant information with search, and in eDiscovery, they both need to change the economics of eDiscovery and hone in on key documents while quickly separating out the noise. That’s what we offer to law firms and their corporate clients. And because we can deliver on that promise, we’ve had a great deal of success with both sets of clients.

TPL:  We had the opportunity last year to speak with Hartwig Laute, Director European Operations for Recommind.  He showed us the Bundeskartellamt use case (the German competition regulator, akin to the US FTC) and explained how and why the German Cartel Authorities rely on Recommind technology. Tell us about your European operations.

CC: Recommind has had European operations since its inception, and they’re very much an integral component of what we do. Roughly half of our employees are in Europe because that’s where we do much of our development work. Our CTO/co-founder Jan Puzicha is in Germany, and we also have significant operations in  the UK. The majority of our clients are in the US, especially on the law-firm side, but our business is growing on both sides of “the pond.” Most of the large law firms are here or in the UK, so we work with them in those countries, but on the enterprise side we have a number of clients across Europe as well as in the United States.

TPL:            E-discovery costs are skyrocketing.  Yet much of EDD is now a commodity – and that has changed the structure of the market.  Prices are — shall we say — more predictable and probably more realistic.
E-discovery vendors have capped fees, set flat fees or worked with various forms of pricing estimators.  Have you changed your pricing?

CC: We have certainly added more choices to our price list to accommodate the overwhelming demand we’ve seen, but if you are asking if we have had to lower our prices the answer is not at all.  It’s definitely the case that much of the eDiscovery process, including culling, processing, hosting and forensic imaging, has been commoditized; older vendors trying to maintain market share and the rather simplistic appliance offerings and vendors have pushed this trend. But where we play and what our products are capable of doing for clients – Predictive Coding being perhaps the best example – is nowhere near becoming commoditized. The basic problem with eDiscovery is that it still uses the paper-based, linear review model, even though 99% of information these days is digital.  Most EDD products try to alleviate the symptoms of that problem rather than address the problem itself, e.g. “better” linear review, a simple culling appliance, etc. Those technologies are commoditized now or will soon be. But we attack the fundamental problems of eDiscovery, the illness rather than its symptoms. Predictive Coding doesn’t just streamline document review for human reviewers–though it delivers that too–it actually automates the majority of the process using intelligent technology and defensible workflow. That’s something no other company or technology can deliver – period. And because it truly is game-changing technology, law firms and clients alike are more than willing to pay a premium.  After all, it will save them a tremendous amount of time and money so the investment is easy to justify.  Because this is so unique and such a difficult problem, in spite of a noisy market there’s no danger those capabilities will be commoditized any time soon.

TPL: Craig, we greatly appreciate your time.

CC: Thanks very much. We’re regular Posse List readers, and it’s always a pleasure to talk with you.

Postscript:  You can find Recommind in the Exhibit Hall at Booth #2104 and 2106.

Adam Cohen, Senior Managing Director at FTI Technology is a nationally recognized expert in electronic discovery and electronic information management policy issues.  He is the co-author of two books on electronic discovery:  Electronic Discovery:  Law and Practice, a legal treatise which has been cited in several landmark federal court opinions, including Zubulake and Lorraine v. Markel, and the recently published ESI Handbook.   

Prior to joining FTI, Adam was a litigation partner at Weil, Gotshal & Manges.  He teaches electronic discovery at Fordham and Rutgers law schools, and co-chairs the Electronic Discovery committee of the New York State Bar Association’s Federal and Commercial Litigation Section. 

We caught up with Adam in FTI’s New York offices. 

TPL:        First of all, congratulations on the silver award to Ringtail by Law Technology News readers in the category of case management software for large law firms.  

AC:         Thank you.  As a bit of background for your readers who don’t know the process, in 2009 the editors of Law Technology News asked the publication’s more than 40,000 subscribers to identify products and vendors that represented outstanding achievement in legal technology in 25 categories for its seventh annual awards program.  The awards, selected based on subscriber online voting, will be presented at LegalTech New York on February 1, 2010. 

TPL:        Well, among our contract attorney base there aren’t too many who don’t know or have not worked with Ringtail or Attenex.  But if you want to get a plug, now is the time. 

AC:         We’re proud of this award because it recognizes the integration of Attenex and Ringtail functionality, now available on one platform. So, Ringtail users will benefit from the visual analysis and rapid review capabilities of Attenex, and Attenex users will benefit from the enterprise-class case management, redaction and production features of Ringtail Legal. So this single solution combines two market-leading applications. It is available both on-premise and on-demand, and provides significant advancements in the speed, flexibility and cost-effectiveness of e-discovery and document review.  With these productivity improvements, Ringtail offers corporations and their trusted advisors the ability to control more of the e-discovery process with fewer tools and at a lower total cost.  

TPL:        You said “market-leading”.  I know many of our contract attorney members have used it.  Can you give us an idea of market share or your definition of “market-leading”? 

AC:         You can look at this two ways. In terms of market adoption, you touch upon how many review attorneys have used Attenex and Ringtail. The two key reports within the industry that gauge user adoption of software tools – the AmLaw Tech survey and the Socha-Gelbmann annual e-discovery report – have recognized both Attenex and Ringtail as among the top e-discovery tools used by corporations and law firms. If you look at market-leading as exhibiting thought leadership and delivering strategic offerings for clients, we’ve been recognized by Gartner as a “strong positive” provider of e-discovery software – one of only five software providers to earn that rating.  That said, we remain humble with respect to our achievements and look to our users’ feedback as one of the best ways to validate our decisions and help inform future choices. 

TPL:        Last year — for obvious reasons — corporations and their law firms were searching for and selecting more cost-effective e-discovery processes and technology.  How does Ringtail and/or Attenex fit in the “cost-effective” bucket? 

AC:         FTI conducted a study recently of Fortune 1000 GCs and 72% cited legal review as the most expensive phase of e-discovery. (A full copy of the report is available for download at FTI Technology’s website.) The combined Attenex and Ringtail software allows corporations and their law firms to dramatically reduce the cost of e-discovery by speeding up the review process on one platform, from processing through production. Our software has been purpose-built specifically to reduce the cost of legal review, and we have a proven record of delivering measurable results for clients.  

TPL:        Ok, news flash.  There is a myriad of software out there — review software, early case assessment software, ESI management software, etc.  How do you distinguish FTI from the pack? 

AC:         Good question. The most recent Socha-Gelbmann study estimates that there are over 600 companies offering some kind of e-discovery software or service. That’s an incredibly crowded market and may be confusing for legal teams to navigate. We believe that FTI has a few key differentiators. 

First, we believe our software is foremost in its ability to reduce the total cost of e-discovery.  Measures such as document decisions per hour, search speed and ability to handle very large data sets all translate into direct cost savings for corporate customers paying for e-discovery services.  Our products excel along all three of these measurements. 

Second, our software can be deployed at the corporation or law firm, or we can host the software. This provides clients with flexibility if they need to outsource legal review today, but want to keep control of their data and possibly move review tools in-house in the future. They won’t have to change their software or workflow. 

Third, have expert services and consulting that can wrap around the software, whether it’s a discrete process like collection, or developing a holistic and defensible information management process. We’re also global, with offices in every major business center in the world, so if you need help collecting data in Europe or Asia, we can assist in compliance with local data privacy requirements. 

And, perhaps most importantly, we’re a public company with a proven track record in this industry, and the stability our customers prefer. 

TPL:        You mentioned that FTI is pretty global.  Are there versions of Ringtail and/or Attenex for other languages or is it Unicode? 

AC:         Yes, including support for right to left languages, and character sets without spaces.  These are critical to supporting Arabic, Hebrew and certain Chinese languages, and distinguish our products beyond simple Unicode compliance.  It is one reason our products are in regular use around the world.  And like I mentioned, with 3,500 employees located in most major business centers in the world, we have significant expertise in multi-national litigation and e-discovery. As an example, we have extensive experience “parachuting in” to particular countries and conducting on-site reviews for corporations or their outside counsel, because the local data privacy requirements won’t allow data outside of the country, or in some extreme cases, that data can’t leave a certain building. 

TPL:        We have seen a here are a lot of document reviews going on in Europe, and the pace is increasing.  Have you seen an uptick? 

AC:         Absolutely.  Although there isn’t as much e-discovery in European courts as in the U.S., the trend of increasing data volumes and e-discovery is global.  Also, where U.S. attorneys need to review documents held by clients in Europe, they are increasingly choosing to do the review on site to mitigate the risk arising from EU data transfer and privacy laws. This is especially true with investigations in the EU, where we are able to dispatch our e-discovery professionals with mobile units containing critical software applications. 

TPL:        FTI has published a number of white papers on controlling electronic discovery using in-house resources.  Can you give us an overview on what FTI is doing for in-house law departments? 

AC:         Certainly.  Let’s start from this premise:  rather than relinquish control of e-discovery to these experts and their firms, in-house legal teams and their executives are trending toward retaining control of decision-making and acting as collaborative partners throughout the life cycle of a particular matter. 

It is this equilibrium that will dictate the growth and development of electronic discovery in the years to come, and not simply technology or regulatory guidelines. Those who embrace the internal/external partnership will streamline progression and enhance their readiness for favorable outcomes. 

At FTI we work with corporate clients to understand and evaluate their IT environments and the systems, policies and procedures they use to carry out e-discovery obligations.  We facilitate a process where technology and policy are balanced for optimal efficiency and e-discovery compliance.  Really what in-house law departments need is a program because the expectations of courts are increasing just as fast as the volumes of data.  In the end, litigation can and should be treated as a dynamic business process. 

TPL:        Ok, bingo.  You have hit on the purpose of this series of interviews. The “tsunami of data” as Ralph Losey says.  A volume of data (and cost of discovery) which seems to be exponentially greater by the minute.  In a nutshell, how do you help clients cope, get organized? 

AC:         It’s a very logical process built on understanding the sources of ESI and developing a plan to address them that is practical and actually capable of implementation.  The reality is that the corporate culture and the budgetary and personnel resources that are available will influence the shape of the customized approach that is optimal.  We believe that it is a mistake to look for easy answers in one-size-fits-all technology solutions and “best practices” that are preached in the abstract. 

TPL:        So, we now have a new lexicon, funky technology — and not necessarily technologically astute lawyers.  Are most lawyers technophobic or perhaps they don’t see technology like those of us in the industry? 

AC:         I think there are lawyers who simply have not taken the time to become educated about technology, largely because they have not yet felt such learning to be critical for their particular practice of law.  There has been a tremendous increase in awareness over the past few years however, and especially with the 2006 amendments to the Federal Rules of Civil Procedure, lawyers need to have some rudimentary understanding of computers.  Unfortunately many still don’t know where to turn for help. 

TPL:        So it’s really a lack of knowledge, a lack of familiarity?  How do you help? 

AC:         We are heavily involved in educating clients about what we do and how the choices they make regarding technology impact their litigation costs and outcomes.  Rather than sell a technology and run off to the next sales pitch, if clients desire, we can also provide expert consulting to facilitate their understanding and systematic implementation of defensible-e-discovery processes.  Lawyers need that expert advice and understanding in order to defend their conduct of e-discovery. 

TPL:        And your technology works no matter what — potential litigation, government investigation, internal investigation, whatever? 

AC:         We have purposefully set out to develop technology that is flexible and scalable so that we can recommend solutions that make sense in any given legal scenario.  We advise clients to be wary of those vendors who tell clients that their product is an “easy button” that will take care of any situation “automagically.”  E-discovery is about more than software; it’s about a defensible legal process. 

TPL:        You have also written some white papers on the impact of e-discovery on IT operations.  That was a big topic last year. 

AC:         Clearly it is important for IT personnel to participate actively in the discovery process.  As successful e-discovery requires knowing where, when, why and how the company stores and destroys data as well as how to retrieve it, the IT team’s role has to begin with information management, well before there’s any hint of litigation. Successful e-discovery that minimizes costs relies on an organization’s information management strategy, namely its data retention/destruction policy and data management system.  Because of IT’s central role in e-discovery, and because e-discovery has such broad implications for IT operations, we advise clients’ IT professionals to familiarize themselves with the basics of e-discovery law and legal terms.  We also recommend IT and legal departments collaborate on important policies and procedures for e-discovery, such as choosing the  formats in which data should be archived or how long to store metadata. 

TPL:        Ah, now you are in the realm of courts who want to know about policies for data retention, litigation holds and information integrity. 

AC:         Exactly.  So it’s vital that policies are documented and systems support them.  Once the e-discovery process is in motion, IT managers work with lawyers and other people in the company with knowledge of the subject of the litigation. They try to identify what requested documents exist, where they’re located and who created or controls them. Then they issue the litigation hold. After that, the potentially relevant documents are copied, sorted and prioritized. Finally, the relevant documents are converted into image files and/or paper documents and given to the other party.  And then even after production in discovery, admissibility issues unique to electronic evidence may arise. 

TPL:        So it is critical that someone in the organization knows how to collect, process and review ESI without accidentally altering it? 

AC:         Because? 

TPL:        Wait a minute.  I ask the questions!  Ok, just this once.  Because inadvertent alterations can result in “spoliation,” which is the destruction or alteration of information that could be used as evidence.  

AC:         And sanctions. As we describe in gory detail in Chapter 3 of Cohen and Lender, Electronic Discovery:  Law and Practice, courts have issued a range of severe sanctions where parties have destroyed electronic evidence, sometimes even where there was no bad faith but only negligence.  There are even criminal penalties possible under certain circumstances.  

TPL:        And we only have to look at Judge Scheindlin seminal decision in the very recent Pension Committe case (link) to know the consequences.  

AC:         That’s why IT professionals need to work with an organization’s outside counsel to help them understand the information architecture, systems and databases–so they can make informed decisions about identifying, preserving and collecting requested data. 

TPL:        And what do you think is at the forefront of the discovery process, the most important thing, the biggest challenge? 

AC:         Based on the Pension Commitee opinion and the continuing stream of sanctions cases for spoliation, I would have to say that the biggest challenge seems to be complying with the duty to preserve electronic information.  Most organizations still don’t have a written plan ahead of time to implement litigation holds smoothly, so they fumble around in reactive mode–which breeds mistakes. 

TPL:        There is a feeling among in-house counsel (gleaned from the ACC meetings we attended) that direct relationships with e-discovery vendors are best, rather than through outside counsel.  Do your law firm clients perceive this as a threat to their business? 

AC:  Members of a multi-disciplinary team always need to define roles and responsibilities, but generally no – most of our law firm clients welcome the improved awareness on behalf of their corporate clients, and most of our corporate clients likewise appreciate the efficiency and benefit of interacting with us directly.  When clients deal with providers directly they tend to learn more about the processes and that education makes their lawyers jobs easier.  Lawyers don’t want to be the ones passing through a vendor’s e-discovery bills to a client who doesn’t understand them and “shoots the messenger”! 

TPL:        E-discovery vendors have also had much success the last 2 years moving into the e-discovery space across the whole EDRM model, especially in the area of document review (the “right side”) and that success is due to the continuing move by corporations to move EDD directly in-house.  Document review is a nice piece of change.  Is this a move you contemplate? 

AC:         We do observe that clients would increasingly prefer to avoid juggling multiple vendors across the spectrum of e-discovery processes. The handoffs between providers create additional layers of management, expense and risk. Instead, companies are increasingly “converging” on one or two proven providers that can address a wider spectrum of global e-discover requirements regardless of scale. To serve a large enterprise client effectively, this means diverse global capabilities – not just for software or services or consulting — but all three.  At the same time, corporations increasingly identify legal document review as the single largest opportunity for achieving sustained cost savings. We developed our latest offering, FTI Acuity, to address these issues head on. Acuity provides corporations and counsel with everything they need for e-discovery and document review—from processing through production—at a fixed per-document or per-gigabyte rate and with a single point of accountability for the entire process. This includes data processing, the hosted review platform, document review, production, project management and all of the associated consulting services. 

TPL:        E-discovery costs are skyrocketing.  Yet much of EDD is now a commodity – and that has changed the structure of the market.  Prices are — shall we say — more predictable and probably more realistic.  E-discovery vendors have capped fees, set flat fees or worked with various forms of pricing estimators.  Have you changed your pricing? 

AC:         The challenge in 2010 for everybody — corporate clients, providers and law firms alike — will be to find a commercial balance across the time, quality and cost dimensions.   We work regularly with clients to review and adjust pricing and service levels as market indications/client requirements warrant.  We also engage clients in alternative fee structures – these can be an effective way to respond to a matter or collection of matters based on their size, duration or requirements.  

TPL:        The big “new new” thing all of last year — at every event we covered — was early case assessment and winnowing relevant data down to reduce the number of documents to review.  As the stats bear out, it is the most expensive part of the process.  But now we have predictive coding plus the work being done in computer assisted review by Herb Roitblat, Anne Kershaw and Patrick Oot.  Is the technology getting to the point where we can also winnow out the eyeballs — contract attorney reviewers? 

AC:         Predictive coding raises great promise and great concern.  Promise, because as you say attorney reviewers are the most expensive and least consistent part of the process. Concern, because however flawed traditional document review may be, it is the dominant model both commercially and in the courts.  It is going to take some time for the world to accept the elimination of manual labor in document review, and it is only going to do so when the technology is sufficiently mature and the quality of result is convincingly superior.  Fortunately for FTI, we are well on our way to both.  Attenex, which we acquired in 2008, was a pioneer in this area, and we have continued to progress significant R&D in this area.  New predictive coding algorithms lie at the heart of our Acuity Integrated Document Review offering, and even further reaching developments are in our lab.  We wrap that technology in innovative workflows that permit senior lawyers to guide the review of huge volumes of documents.  We test our results with statistical sampling, something rarely done in the traditional process because it tends to reveal inconsistency.  And our experienced courtroom testifiers stand ready to defend our innovative process.  We believe that all of these elements are necessary for market adoption of “computer-aided document review.”    

TPL:        Why is it that you chose to go to FTI after leaving Weil Gotshal?  I would imagine that after publishing an e-discovery book that was cited in Zubulake when it was still a manuscript you must have had opportunities from a number of e-discovery businesses.

AC:         FTI is different from just about every other company in the market in so many ways, but if I had to identify the factors that were most important to me in choosing FTI I would point to the professionalism of its people and the unique marriage of cutting-edge technology with deep e-discovery expertise.  As a litigation partner at one of the world’s best litigation firms, I wanted to go to an organization with comparable standards of professional excellence and a similarly high level of respect among corporate clients. 

TPL:        What’s the scoop on your latest book, the ESI Handbook? 

AC:         The Handbook is meant to fill what I perceived as a gap by providing a primer to attorneys and other legal professionals on technical and process aspects of e-discovery in language they can understand.  So it complements the legal treatise (Electronic Discovery:  Law and Practice) nicely.  It also has an appendix on CD with toolkits for constructing litigation procedures, document retention policies and other documents.  The toolkits are especially valuable because they contain excerpts from real client documents and as such are different from the typical forms in the back of books that are too generic and divorced from real use to be of any utility. 

TPL:        Is FTI announcing anything at LegalTech? 

AC:         We’ll be launching FTI Acuity, which I mentioned earlier in the interview. We are excited about Acuity as we believe this addresses some of the biggest pain points in e-discovery today.  We believe Acuity’s integrated document review delivers more accurate, predictable and cost-effective results than any available alternative. More valuable because Acuity is guided through collaboration with outside counsel and provides real-time intelligence from the documents to shape case strategy.  More predictable because Acuity includes everything needed, from processing through production, at a single price. More cost-effective due to Acuity’s use of next-generation review technology that speeds review, and proven workflows that eliminate expense. And Acuity is defensible; backed by statistical validation and expert witnesses from FTI, a global Tier One provider with the experience and reputation you can trust. 

TPL:        Adam, we greatly appreciate your time. 

AC:         My colleagues and I enjoy reading The Posse List so it was a real pleasure talking with you.

Postscript:  FTI will be demonstrating their products, including Ringtail QuickCull, Attenex Patterns and Ringtail Legal, at LegalTech booth #2100.

Mary Mack is Corporate Technology Counsel for Fios Inc.  She is one of the leading speakers and authors on electronic discovery issues, technology and the law. She is co-author of the popular book, “A Process of Illumination: The Practical Guide to Electronic Discovery,” which she has graciously provided to The Posse List as a free download (click here).   She also the author of “eDiscovery for Corporate Counsel,” published by West, a Thomson Reuters Company, and hosts the blog, “Sound Evidence,” featured on DiscoveryResources.org. Mary is regularly featured as an expert in the leading magazines and newspapers, and is “in the trenches” of e-discovery – investigative inquiry, second request or class action litigation.  She has more than 20 years experience counseling clients on electronic discovery, managed services and software projects. Mary is a “hands-on” strategic advisor for some of the largest products liability class actions, government investigations and intellectual property disputes.  

Dennis Kiker is the Director of Professional Services for Fios.  His job is to help clients prepare for and respond to the demands of litigation. Dennis focus is on the business processes associated with efficiently and defensibly responding to discovery demands related to complex litigation and governmental investigation. He specializes in bringing together in-house counsel, business personnel, outside counsel and Fios resources to develop process-based discovery response solutions that lower cost, time and risk. Dennis is a frequent speaker and author and an active participant in The Sedona Conference and the Defense Research Institute. He holds a J.D., Magna Cum Laude & Order of the Coif, from the University of Michigan Law School. 

We caught up with both at the ACC Annual Meeting and the Georgetown University E-Discovery Institute and then again at their Portland, Oregon offices.  

TPL:   First of all, our thanks for the free download of your book, Mary, and for the “E-discovery Knowledge Center” on your site (link).   We have had scores of Posse List members who have used it via our various posts. 

MM:   I think what you have created with The Posse List and with your companion site The Electronic Discovery Reading Room are fabulous resources for our industry.  Fios prides itself on its ability to help guide and educate people on the important legal concepts in e-discovery and we are happy to make a contribution to The Posse List in that area. 

TPL:   Well, I think it is a reason why so many of our readers flock to the Fios E-Discovery Knowledge Center. It is one of the best resources on the web. 

MM:    Thanks.  We publish articles and white papers and have scores of webcasts that provide training at multiple levels (legal and legal technology). Our e-discovery experts also participate in and present at various industry conferences and tradeshows.  But more importantly we get on the phone with clients and prospects to help them better understand their electronic discovery issues and questions. 

TPL:   And that is a major element for you.  We discussed this at length at the ACC Annual meeting last year:  working with clients to facilitate a close working relationship between IT and legal, to understand the process. 

MM:    Exactly.  We have experienced several situations where IT made a buying decision but didn’t consider the legal requirements. IT had worked with all of the other business units to gather requirements. Because legal was not consulted, issues around legal holds, preservation and metadata were missed. Legal may be viewed as a reactive group, but to manage risk, IT must understand the legal requirements for retiring, migrating or deploying new systems to minimize impact on litigation. 

TPL:   And that’s the reason we like chatting with you, your hands on experience.  For instance, that “sound bite” you gave us at ACC about custody.

MM:    Ah, yes.  You mean the custody exercise we chatted about.  Moving files from one physical disk to another. Many people interpret data movement like they would move a chair; however, when you move electronically stored information (ESI) from one physical device to another, it moves a representation of the original item. Critical things like data ownership, group security, created date and many other pieces of metadata (data about data) are changed when the data is “moved.” with normal tools.  The data needs to be moved with tools and processes that respect the evidence quality of the data being moved.   This minor issue can become a major legal risk when authenticating chain of custody in court.  Many of these tools are already in an IT department’s arsenal.  They just need to be convinced 1) that there is a process or Standard Operating Procedure (SOP) they can use and 2) that it is really necessary to use it.  Who would believe a create date would change without seeing it for themselves? 

DK:     If I can jump in here.  One of the areas we educate clients on is in the application of technology for electronic discovery. New technology can be wonderful. It can also cause disaster. Companies will buy tools to reduce their review costs and exposure around discovery, particularly in the areas of early case assessment, collection, preservation and case management. The disaster comes from a lack of understanding how these technologies will impact scale, chain of custody and legal workflow, specifically on active litigation. Fios generally recommends customer who are buying new technology to pilot these applications on low profile and low risk cases. 

TPL:   Ok, I have jumped the gun a bit.  I know Fios does a gazillion things and I don’t want to clog up this interview with a full recitation since we’ll have reports next week from LegalTech.  So, in a nutshell, what do you guys do?  And I’m timing you.    

MM:    [laughing] Ok, but I love to chat about what we do.  But let me give you an overview of the electronic data services side, and then Dennis can jump in with the professional services side. 

We have developed and honed our e-discovery technology and services for more than a decade to address any challenge, big or small. Our e-discovery services break out into five primary areas: (1) evidence collection, (2) data culling and processing, (3) evidence analysis and review, (4) evidence production and (5) project management services.  Our goals — the “mantra” these days from everyone — is to provide e-discovery technology and services that help clients defensibly reduce data volumes.  We have a lot of flexibility to meet a broad spectrum of matter sizes and issues. 

Did I use up my allotted time?   

TPL:   Dennis, you’re up. 

DK:     Wow.  And you have a timer and everything!  Ok, Fios brings a seasoned perspective to e-discovery that results in defensible, cost-effective, accurate results in even the most complex matters. We offer our clients a team of seasoned professionals and legal experts, including certified project managers, solutions design architects and professional services consultants who, together, tailor solutions to work in sync with our clients’ requirements.  That’s the key to ensure success. 

One of the areas we focus on is helping our clients limit scope and reduce data volumes in advance of “meet and confer” conferences and privilege reviews.  The time and resources spent on the pre-discovery planning results in significant time and cost savings. And, when managing the e-discovery process, strategic and tactical choices made at every stage can significantly impact the defensibility of a production.  All you need to do is read some of the recent e-discovery court decisions to see all the faux pas that can be made. 

So in a nutshell (boy the sand in that hourglass moves fast) let me say that Fios team of experts can help create innovative and cost-effective solutions to any organization’s electronic discovery challenges.   

TPL:   That was fine.  So, a summary in my words: Fios has the ability to bring together the best in electronic discovery technology and expertise and provide it to those who need it most – law firms and corporations compelled to produce evidence in conjunction with audits, investigations, litigation … . anything. 

MM:    Precisely. 

TPL:   Ok, one of the themes in this interview series is “tsunami of data” (as Ralph Losey calls it):  a volume of data plus a cost of discovery which both seem to be exponentially greater by the minute.  In a nutshell, how do you help clients cope, get organized? 

MM:    This evolution in discovery, due primarily to the substantial growth of ESI retained by companies in the normal course of business, is bedeviling everyone.  And as you have discussed in this interview series, the high cost of complying with litigation discovery requests.  Add to that the growing number of cases where courts have entertained and granted motions for sanctions with respect to violations of rules governing discovery of ESI, the imposition of which have often resulted in extremely adverse outcomes to companies.

A far cry from the old days.  Well, not so old.  Just back in 2000 for instance.  As I recently wrote on my blog, back in 2000 dial-up was still the norm for Internet connections, with T1 lines for corporations. Not everybody had BlackBerrys.  Forensics was still done in DOS, mostly by ex-law enforcement. All but a few attorneys ignored electronic evidence and agreed not to produce it, or produced it by printing it out and hand-stamping a BATES number on it. Most electronic discovery was of the forensics variety for employment, white collar and trade secret cases. PCs were left open, so internal hard drives could be attached more easily. 

Today, we are pushing the envelope of Web 3.0. We have Droids, iPhones, Twitter, Facebook and LinkedIn. For e-discovery, we have conceptual search and much more user-friendly forensics. And, according to the New York Times, Americans consumed, on average, 34GB of data per day in 2008. 

So to help clients cope with the tsunami?  We continue to provide the “glue” for collaboration and documentation for defensibility among inside and outside counsel, between IT and legal, among joint defense groups and during productions with opposition to allow our clients to litigate on the merits instead of the “discovery about discovery.”   We show our clients how to get control of the discovery process, how to tackle the volume, the whole lifecycle from creation to production.  It’s a process.  And you know what?  It is actually very simple. 

And not to brag …. oh, heck.  I am going to brag.  In a profession dominated by words, suddenly a process flow document appeared, as if by magic, in every RFP response and in every e-discovery PowerPoint. After Fios announced the preposterous concept of “Litigation Readiness” in 2003, the rush to prepare was on. Assessments, data mapping, information policies and early case assessments were suddenly in vogue. The left side of the EDRM was king…then came the bursting of the legal bubble and the financial meltdown. Discretionary dollars disappeared, and, like magic, the right side of the EDRM (processing, analytics, review and production) started getting its fair share of attention. Since 70 percent of a case’s cost typically comes from the right-hand side, this captured immediate attention. 

Fios has created tremendous tools for our clients to cost-effectively respond to e-discovery requests and, in this cost-conscious climate, includes them in all our engagements. 

DK:     And that’s where our professional services come in.  We work with clients to make sure they understand how to deploy technology, train their legal teams and develop practices and processes for managing the data. 

TPL:   We now have a new lexicon, funky technology — and not necessarily technologically astute lawyers.  Are most lawyers technophobic or perhaps they don’t see technology like those of us in the industry? 

MM:    No, I think more and more lawyers “get it”.  As I recently wrote, the AmLaw 100 law firms have suddenly sprouted e-discovery practices, with specialized counsel emerging at the case level.  And this morphed into national e-discovery counsel managing across cases with the split between trial and pre-trial work more pronounced. And paralegals adopted more traditional litigation support responsibilities, litigation support added practice support.  Plus more law firms named CIOs.   But it is still an education process.  

TPL:   So it’s really just a lack of knowledge, a lack of familiarity? 

DK:     Precisely.  Back in 2000 education for e-discovery, to the extent it even existed, was really just all about forensics. Forensic exams were on those old-fashioned, really floppy, floppy disks. There were few articles and even fewer books.  Take Mary’s book A Process of Illumination: The Practical Guide to e-Discovery.  Even she was astonished by its acceptance. 

MM:    Exactly, as were the faculty for our webcasts and contributors to the first e-discovery portal, DiscoveryResources.org.  Carole Basri and I, and our 70 contributors, published the first and second edition of the Thomson Reuters West treatise, eDiscovery for Corporate Counsel. Jonathan Redgrave and Judge Scheindlin published a case book for law students, and Tom Allman published a comprehensive guide to e-discovery through PLI. 

TPL:   E-discovery costs are skyrocketing.  Yet much of EDD is now a commodity – and that has changed the structure of the market.  Prices are — shall we say — more predictable and probably more realistic.  E-discovery vendors have capped fees, set flat fees or worked with various forms of pricing estimators.  Have you changed your pricing? 

MM:  Fios has always been flexible on pricing models.  When we know enough about the case and/or client, we are able to share risk.  Clients are working through how to get the benefit of fixed fees and still gain reimbursement from insurance coverage or bill back to specific business units.  We are able to tailor reports for our clients to allow them to have the best of both worlds. 

TPL:   E-discovery vendors have also had much success the last 2 years moving into the e-discovery space across the whole EDRM model, especially in the area of document review (the “right side”) and that success is due to the continuing move by corporations to move EDD directly in-house.  You recently partnered with Ajilon Legal, one of the largest legal staffing agencies in the U.S.  How did that come about? 

DK:     Well, it was a natural progression.  The partnership blends Fios’ leading e-discovery services with Ajilon’s document review management expertise to deliver a single, “all-inclusive” solution from processing through production. 

TPL:   And the pricing?  The document review world is moving from per hourly rates to per doc rates.  

DK:     It’s a seamless, combined e-discovery service to clients, really, and we do it at affordable per gigabyte (GB) pricing that includes: evidence processing, advanced review technology (Fios Prevail®), highly qualified document reviewers, and litigation/project management services.   The per GB pricing is much more predictable for our clients than a per doc rate, as some GB’s can produce 100,000 pages (20,000 docs) and some GB’s can produce 20,000 pages (5,000 docs).  We also provide a single point of contact.  With the Fios-Ajilon combined service, clients will be provided with a single point of contact for requests, communications, reporting and accountability for processing through production. 

TPL:   With this merging of the left side and the right side of the EDRM we know that the single-point of contact issue is major. 

DK:     Exactly.  We’ve heard from countless clients — both law firms and corporations — that they want a single source for managing e-discovery from beginning to end.  So by combining the core Fios and Ajilon competencies and expertise, legal teams now have a single resource for processing, review and production services. Additionally, our combined services will provide legal professionals with improved cost predictability and budget management for e-discovery projects.  As we indicated in our pricing discussion above. 

TPL:   So, last point on this.  As we have discussed in this interview series, the big “new new” thing all of last year — at every event we covered — was early case assessment and winnowing relevant data down to reduce the number of documents to review.  As the stats bear out, it is the most expensive part of the process.  But now we have predictive coding, plus the work being done in computer assisted review as evidenced by Herb Roitblat, Patrick Oot and Anne Kershaw’s study “Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review” (link), plus the work being done by Google and Microsoft on auto-categorization or auto-coding.  Are we headed down the path to where machines can be statistically proven to be as accurate as human review?  Is the technology getting to the point where we can also winnow out the eyeballs — contract attorney reviewers? 

DK:     No.  I think there is too much value in humans to take us out of the equation.  And technology is just a means to an end.  But I do see document review teams getting smaller, focused and more tech-savvy.  

TPL:   Mary, Dennis — we greatly appreciate your time. 

MM: I have enjoyed reading your updates.  It is a service to all of us who cannot be everywhere that you send your reporters to bring us back the information and the flavor of our many conferences and gatherings.  I also acknowledge your role in raising the level of education and information sharing amongst all stakeholders in ediscovery, particularly the contract reviewers.  These are tumultuous times.  Thank you for the work you do. 

Postscript:   Fios and kCura made a joint announcement today (click here) in conjunction with their participation at LegalTech NY.   Fios will be offering demonstrations of the new solution at Fios’ booth at LegalTech (Booth #310).  If you would like to see a demo or speak with one of of the Fios representatives contact Debbie Caldwell at dcaldwell@fiosinc.com

Ron Friedmann is Senior Vice President of Marketing for Integreon.  He is a leading authority on practice support for lawyers.   Ron managed practice support at then Wilmer Cutler (now WilmerHale), was CIO at Mintz, worked for two legal software companies, and ran Prism Legal Consulting.  He is a Trustee of the College of Law Practice Management and on the Board of Governors of the Organization of Legal Professionals.  Ron has a JD from NYU and BA from Oberlin College.  

Integreon is well known for its e-discovery, managed document review, legal process outsourcing (LPO), research and knowledge support, and middle office business services for law firms, corporations, and financial institutions.  Beyond marketing, Ron helps law firms and law departments improve efficiency and effectiveness using Integreon services. 

But it is through his blog, Strategic Legal Technology, that Ron is best known.  Ron has blogged since 2003; in 2009, the ABA Journal selected his blog for its Blawg 100, the ABA’s annual list of the best of the blawgosphere.  The choice was a good one: Ron is as insightful as he is prolific.  His blog is widely read because Ron writes with two decades of experience at the intersection of law practice, law business, outsourcing, e-discovery, knowledge management, and technology.  

We caught up with Ron at The Masters Conference and then at his D.C. area office.  

TPL:   Ron, you have written extensively on the consequences of the paradigm shift in the legal industry.  In a recent blog post you said, “what is bad news for law firms could be good news for legal technology managers.”  Can you elaborate? 

RF:     Law departments must act to reduce legal spend.  If GCs don’t, we may see CFOs and CEOs step in.   So the new normal for law firms won’t be the same as the old; the time for minor adjustments has passed.  The legal market will likely stay flat and see downward price pressure.  Consequently, firms have lost pricing power and face a battle for market share.  Winning that battle will require that firms offer clients more value.  To do so, firms will get serious about process improvement, project management, outsourcing, and alternative fees.  This in turn means that firms must deploy new technology and use old technology more effectively.  This will open in a new chapter — maybe even new volume — in legal technology. Getting there will require more business and technology professionals.  

TPL:   A recent Hildebrandt article discussed the fact that we need to be wary about how we measure all of this stuff.  For instance, the “demand” for legal services — as currently measured in the legal industry — is usually discussed in terms of either lawyer hours, or legal fees, both of which can be relatively easily measured and captured.  But clients don’t “demand” lawyer hours — they demand solutions to legal problems (just as consumers don’t “demand” auto worker hours — they buy a car).  

RF:     Exactly.  The market finally recognizes that “inputs” – hours billed – don’t equate to “outputs”, that is results.  Good legal outcomes depend on smarts and repeatable processes more than on sheer number of hours.  Where bulk work is necessary, clients want more cost-effective ways to do it. As a result, legal process outsourcers (both domestic and offshore) now handle growing volumes of routine work formerly done in-firm by lawyers and legal staff.  Firms themselves are reengineering work processes to reduce inefficiency and cost.  This trend will accelerate as fixed fees and other risk sharing alternative fee arrangements spread.  

TPL:   So you see this pretty much as a golden opportunity for vendors? 

RF:     Yes.  And it especially creates opportunity for Integreon’s legal process outsourcing (LPO) service.  A recent article in The Economist noted that LPO is booming.  Law firms can now parcel out more of their basic work so they can focus on their core strength of legal advice and strategy.  

TPL:   We are going to post a lengthy piece on legal process outsourcing during LegalTech and we’ll cover Integreon’s services then, so we’ll hold off on those questions right now.  This is an area that most affects our contract attorney membership. 

RF:     Ok, but let me just make a short comment now.  Legal process outsourcing may very well see a watershed year in 2010.  Since the Rio Tinto law department announced its LPO initiative in June 2009, the U.K. legal press has seen a flurry of LPO announcements.  There is less PR in the US, but many private conversations are taking place. 

TPL:   Fair enough. I do want to discuss LPO with you in more detail at LegalTech.  But one other relatively new development has an even more direct affect on the contract attorney market and we have discussed it many times: the rapid move toward predictive coding technology and machine review.  In 2009 saw two “first pass” document reviews that actually skipped human review and were done by machine.  What are your thoughts on predictive coding? 

RF:     I have been passionate about improving the document review process for two decades.  That’s a big reason I joined Integreon – it shares that passion.  Automation is the key to improvement, so I’ve thought about the role of computers a lot and my thinking has evolved.  

We will see computers play a bigger and bigger role in first-pass document review, at least for responsiveness.   This role can range from culling documents, to prioritizing them, to automatically (or predictively) coding them.  What’s driving this? 

As a society, we simply cannot afford to pay people to look at every document.  As a profession, we must recognize that human review as the “gold standard” makes no sense.  Both anecdotes and studies suggest that human review is not nearly as consistent or reliable as lawyers typically assume it is.  

Computers turn out to be more reliable and consistent than people – no surprise.  But it is not so much the particular software that drives this conclusion as it is the combination of technology, process, and training. 

My blog posts on e-discovery and litigation support show the evolution in my thinking.  In July 2003, I started with Thoughts on Full Text Retrieval, where I questioned the value of concept search versus Boolean search but concluded that the choice is an empirical, not theoretical question.  As volumes grew, technology improved, and we gained experience, my views shifted.  By November 2009, I concluded that the Choice of Concept Search Tool in e-Discovery May Matter Less Than You Think (November 2009).  In that post, based on dialog with two leading EDD experts, Tom O’Connor and Herb Roitblatt, I posited that the semantic engine is less important than the overall process, which includes training and how the tool is used. 

In sum, three trends – (1) pressure to spend less, (2) improvements in process and technology, and (3) growing recognition of the limits of human accuracy – will converge and lead to more “predictive coding”. 

TPL:   OK, I see you’ve really thought about this.  So where do you come out on early case assessment (ECA) — winnowing relevant data down to reduce the number of documents to review — versus predictive coding?  Was ECA the mantra in 2009 and predictive coding the “new new thing” for 2010? 

RF:     I don’t draw that big a distinction between ECA and predictive coding.  The goal of both is to reduce the volume of documents that humans must review.  

ECA uses computers to winnow the number of documents lawyers must review.   It uses several techniques, for example, selecting custodians, narrowing data ranges, applying keywords, and categorizing and prioritizing documents.  ECA allows for strategic decisions, such as settle or litigate, before incurring the significant cost of substantial discovery.   

The goal of predictive coding is to use computers to substitute software judgment for human judgment.  That sounds quite different from ECA but I think both are points on a continuum.  Most predictive coding systems require human reviewers to train and tune them.  And most lawyers will still want to vet predictive coding with humans, at least on a sampling basis.  So I focus on the number of documents ‘humans must touch’ rather than ECA versus predictive coding. 

The two share other similarities.  Both can be used to prioritize documents for review.  Both require maintaining “defensibility” – can you show in court that you have taken all the appropriate and reasonable and steps and documented them carefully.  

TPL:   And what’s your view of the computer assisted review study by Patrick Oot, Herb Roitblat, and Anne Kershaw — “Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review “?  Do you think the technology is accurate enough to take the place of contract reviewers and — more importantly — do you think the technology is fully defensible and do you think judges have demonstrated that they consider automated review acceptable? 

RF:     I read the study and blog posts about it and am still mulling the implications.  At minimum, it advances the discussion about humans versus computer review and shows the value of a controlled, statistical approach.  

It should alert lawyers to the notion that humans are not all that accurate and computers are typically more consistent.  My hope is that it fosters a dialog on the issue and perhaps even helps shift the burden of proof.  Imagine going into court and having to explain why you used an army of lawyers instead of software! 

But I don’t think the study sets up a replay of John Henry versus the steam engine.  That is, it’s not man versus machine; rather, it’s how do we integrate the two in a cost-effective process that holds up both to judicial and statistical scrutiny.  And by the way, I don’t think lawyers or judges give statistics sufficient consideration.  

So, picking up on the ECA and predictive coding themes, I don’t think technology will eliminate review lawyers.  I do think that over time, as processes improve and as courts gain experience, computers will substitute for increasing amounts of contract lawyer review time.  I see a future where armies of contract lawyers as the norm will be replaced by much smaller teams of specialized review attorneys.  Whether that specialized role is contract or full-time is hard to say. 

Though I think automation is defensible, we are at risk for bad rulings, either because a party automates poorly or because, in spite of doing it well, a judge just does not understand the process. 

TPL:   So we are headed down the path to where machines can be statistically proven to be as accurate as human reviewer?  Is the technology getting to the point where we can also winnow out the eyeballs — contract attorney reviewers?  No room for a human element and perspective? 

RF:     I’ll repeat what I said above: it’s man and machine, not man versus machine.  I expect that computers do assume a larger and larger role in doc review.  Society and litigants will suffer if that’s not true. 

For the foreseeable future, however, it’s hard to imagine eliminating all human review.  As technology and process improve, I do think it is likely that the ratio of reviewers to gigabytes will decline.  That is, over time, the human effort will be less focused on what I call “bulk review.”  Instead, humans will likely focus on upfront work (ECA and “system training”), on vetting and tuning computer processes, and on reviewing results to refine systems. That’s why we’ll likely see the rise of specialized review attorneys, lawyers who understand law, technology, process, and statistics. 

TPL:   We recently attended an all-day conference in Washington, DC sponsored by Apple and saw some of the work being done by Google on auto-categorization and auto-coding.  Developers told us that Microsoft is also in the race.  Do you think it is just a matter of time before goliaths like Google and Microsoft — with multi-billion dollar budgets — jump into auto-categorization and auto-coding and wipe out the majority of vendors? 

RF:   As I mentioned above, I think the choice of tool matters less than the overall process.   Unless Google or Microsoft come up with a break-through in computational linguistics (the math behind conceptual search), it’s hard for me to imagine a new search tool vastly superior to what’s available today.  I’m not aware of any algorithmic breakthroughs in the last two decades so I don’t expect any soon.  The breakthrough Google made was using web links as “voting engine” – an approach that does not work for corporate document collections, which are not linked. 

Of course, either company could likely spend its way to a big EDD market share, even with “me too” technology.  That does not appear to be their strategy and EDD is small beans compared to web searching or software, so it seems unlikely to me. 

TPL:   And what do you think is at the forefront of the discovery process, the most important thing, the biggest challenge? 

RF:     I think the biggest challenge and opportunity is creating a consistent, reproducible, documented, and defensible approach that integrates the best of technology and standard processes.  The challenge is not who has the best algorithm, the best software, or the best reviewers.  Rather, the challenge is putting algorithm, software, and reviewer together into an economically affordable, statistically sound, and judicially defensible process.  And that must be done in a consistent, repeatable, industrially controlled process.  Think workflows, documentation, training, metrics, formal quality control, feedback loops, sampling, etc. 

Oh, and let’s not forget that the end-game is not doc review and defensibility.  The end game is telling the best story in litigation, or avoiding needless litigation when a settlement might make more sense.  So the challenge for the legal market is to re-focus from discovery to fact-finding and story telling.  With the right process, lawyers will be able to stop worrying about doc review and possible sanctions and instead focus on figuring out who said what and when and interpreting the facts as favorably as possible.    

Discovery used to be a side show and moved into the main ring in the last decade.  I don’t think that will last. 

TPL:   Ron, we greatly appreciate your time.  We’ll chat more at LegalTech. 

RF:     I appreciate the opportunity to share my views.  And more importantly, I think it’s great that the Posse List has become a key voice in the discussion around e-discovery, bringing together interviews, news summaries, and resources that advance the field and help contract lawyers find work. 

Note to readers and attendees of LegalTech in New York:  On February 1, 2, and 3, in New York, as part of the Legal Tech show, Integreon is exhibiting at booth 324 (first level of exhibits).  Also, many senior Integreon EDD and middle office outsourcing professionals will be at Legal Tech.  If you would like to connect with Ron or anyone else from Integreon, during LegalTech, contact Ron at marketing@integreon.com.

Jason R. Baron and Ralph Losey do not need any introduction for those of us in the e-discovery “trade” but for our new readers a quick summary: 

Jason has served since 2000 as Director of Litigation for the National Archives and Records Administration, and is an internationally recognized speaker and author on the preservation of electronic records. He was recently named Co-Chair of The Sedona Conference® Working Group on Electronic Document Retention and Production, and has previously served as Editor-in-Chief of The Sedona Conference Best Practices Commentary On The Use Of Search And Information Retrieval Methods In E-Discovery and Co-Editor-in-Chief of The Sedona Conference Commentary On Achieving Quality In The E-Discovery Process.   He is a founding co-coordinator of the TREC Legal Track, a multi-year research project evaluating search technologies used in e-discovery.  Jason has been a trial lawyer and senior counsel with the Department of Justice, a Visiting Scholar at the University of British Columbia, and is currently an Adjunct Professor at the University of Maryland’s Graduate College of Information Studies.  He also presently serves on the advisory board for the Georgetown Law Center’s Advanced E-Discovery Institute and is a faculty member of Georgetown’s E-Discovery Training Academy.    

Ralph C. Losey is an attorney, educator, and author who practices law as a shareholder of Akerman Senterfitt, an AmLaw 200 law firm with offices in Florida, New York City, Washington D.C., Los Angeles, Dallas, and Denver. Ralph is also an Adjunct Professor of Law teaching electronic discovery and advanced e-discovery courses at the University of Florida College of Law. Ralph has been practicing law since 1980 in commercial litigation where he has over 70 published opinions to his credit. Since 2006 Ralph has limited his practice to electronic discovery and IT law related issues and started Akerman’s e-Discovery and IT Law practice group. Ralph is currently the most prolific author of e-discovery in the country, having written three books and three law review articles in the last three years. His books include the American Bar Association’s two best selling books on electronic discovery: Introduction to e-Discovery: (2009); and, e-Discovery: Current Trends and Cases (2008). His latest book on e-discovery will be published by West Thomson in 2010 and is entitled: Electronic Discovery: New Ideas, Trends, Case Law, and Practices. Finally, Ralph is also the principle author and publisher of a popular weekly Internet blog on e-discovery, e-Discovery Team Blog, which now averages over 400,000 visits per year. For Ralph’s full detailed resume please see: RalphLosey.com.

Jason and Ralph have been creating a  movie entitled “e-Discovery: Did You Know?” which will be premiered in it’s final form next weeks at LegalTech New York.  We have seen several ”beta” versions and discussed it before (click here).   It always seems to blow away the crowd.  The guts of the presentation in a nutshell:  e-discovery is expanding exponentially and Ralph and Jason speak in petabytes, and exabytes — not terabytes.

I caught up with Jason and Ralph several times in the last few months and I asked them to put  this “tsunami of e-data” in perspective. 

TPL:    How did the idea of the presentation come to you? 

RL:      This was Jason’s idea, but he had no trouble talking me into it. He needed a technical person proficient at presentations and special effects to implement his idea, and he thought I filled the bill. When I understood what he had in mind, I thought I could probably do it. Besides, we had been looking for an opportunity to do a creative project together where we can both tap into our mutual sense of humor and do something really creative. It proved to be great fun, even all of the research we both had to do on the facts. Although I must add that the technical aspects of putting it together in movie form proved to be much more difficult that I had anticipated. I had to use both KeyNote and Final Cut software, and also ended up buying a new Mac so the final editing would go better. (It doesn’t take much for me to be persuaded that I need a new, better computer!) But still, I ended up figuring out all the technical problems and we both reasonably satisfied with the results. It is also gratifying to see the tremendous response this little six minute video has generated in its two beta trial runs. It is even better now, and we look forward to its “premiere” at Legal Tech NY on February 3, 2010.    Jason and I will play the video before we begin our presentation Let’s Have A Debate: The Hottest Behind the Scenes Topics in Search and Retrieval Today. Hopefully many of your readers will be able to join us. It starts at 12:15.    After that we will put it up on our web sites for the world to see (and would hope that someone will place it on YouTube). 

JRB:   I first saw the presentation “Did You Know” a couple years ago at a KM Conference in Sydney Australia, where I had been invited to speak.   At the time, I was completely taken in by the mesmerizing facts the little movie presented.  Sometime later,  after speaking and writing a bit more on the subject of information inflation and problems lawyers encounter in search and retrieval, I thought doing a more focused movie on amazing e-discovery facts would be a way to really wake up an audience.    I also knew that I needed help if the movie were ever going to get made.   Having gotten to know Ralph first through his wonderfully creative blog, and then increasingly at conferences together and in guest teaching his course at U. Florida’s law school,  I just knew Ralph was the perfect person to collaborate with.  I also knew I could get him to do most of the work in actually putting this together, once I came up with a good idea and once I supplied him with a few amazing facts.  Ralph likes a challenge, and voila, we now have a movie! 

TPL:    We don’t want to steal your thunder from LegalTech in a few weeks but can you quote us some of the numbers from your presentation? 

RL: Well, one of my favorites is that far more information is stored in computers that has ever been spoken by humankind. 

JRB:   Back in the dark ages – the year 2002 —  I only had to deal with searching through 32 million White House emails from the Clinton Administration in response to discovery requests in the US v. Philip Morris litigation.  Come 2017, that number is expected to grow to 1 billion emails from all prior Administrations.  Whomever is the Director of Litigation at NARA as of that time (and I can assure you it won’t be me), will have that much larger set of issues to deal with, in responding not only to e-discovery, but also to future FOIA requests and other forms of government investigations and inquiries.   

TPL:    These numbers are astounding.  You have any more scary numbers to share? 

RL:      Yes. Many, many more. But as my friends in the military like to say, if I told you I’d have to kill you. 

JRB:    Ralph did a great job of pulling together some astounding information about Google searches and what are staggering amounts of information in various social media.   

TPL:    You chose Darude’s Sandstorm as the musical background.  Is there a “backstory” to that choice? 

RL:      Jason’s choice, but I love it.  Well, I used to love it, but after hearing it 100 times to do the editing, my love for the song faded and my resistance to trance music has increased dramatically. I now seem virtually immune to hypnotism. 

JRB:    After we previewed the movie at the Georgetown conference, one person came up to me convinced that I must secretly hang out in dance clubs.  (I don’t.) Truth be told, I had never listened to “trance” music before – as my musical tastes and expertise stopped around 1975, circa Dylan’s “Blood on the Tracks.”   But I started with the music for the original “Did You Know,” by Fat Boy Slim, and using a combination of the Pandora music genome project  for songs with similar attributes, and cross-checking those with genres of music on You Tube, I narrowed down what had been “hit” trance, techno and house music songs over the past 10 years, and made my recommendation to Ralph.  (Apparently the song has also recently been a hit at certain college football games – go figure.) 

TPL:    Ralph, in a recent post you said “before today’s digital deluge, the last major litigation transformation was the introduction of discovery itself in 1938. Before the 1938 amendments to the Federal Rules of Civil Procedure, “discovery” required special bills, writs, and pleadings”.  Can you give us some more background on the transformation of litigation over the years and how it has morphed into this tsunami of data? 

RL:      Actually, I was not around in 1938, but do have personal experience from the late 1970s forward. Discovery used to be a minor part of a case and most cases were tried before a judge or jury. Now discovery is king and only 2% of the federal cases go to trial. That is a huge change.  Further, requests for production of documents used to be simple work. Any good second year associate could do it. Now, it is very complicated and requires special training to do right.  

Also, I remember the good old days when we wrote on dead trees, called paper. Writings on paper would not throw themselves away, move positions in a filing system, or store records inside themselves (metadata) as to who last read them, changed them, and the like. Now we’ve got ESI that throws itself away and self-replicates. Now, thanks to computers, we also have Billions and Billons more writings than before. For more on that, see our Did You Know e-discovery movie. Because of these many changes in technology preservation has become a huge issue and concern about spoliation and sanctions is present in most large cases.  

In the 1980 and 1990s, up til near the end of the century, spoliation was not a significant part of litigation. Now it can be a game-changer and the first thing we have to do in most every case is send out preservation notices. That never used to be part of litigation practice and for some attorneys still isn’t. When they read Judge Scheindlin’s new opinion, Pension Committee, which I blogged about recently, they are going to be very upset. For this new opinion makes clear that the failure to send out written preservation notices is gross negligence. 

TPL:    Jason, in an article you co-authored titled “Information inflation: Can the legal system adapt?”, you stated “information is fundamental to the legal system. Accordingly, lawyers must understand that information, as a cultural and technological edifice, has profoundly and irrevocably changed. There has been a civilization wide morph, or pulse, or one might say that information has evolved”.   What is that morph/pulse? 

JRB:   Actually, those words were originally penned by my friend and co-author George L. Paul, a partner at Lewis & Roca in Phoenix, who is also the author of a pathbreaking book entitled “Foundations of Digital Evidence” (with a forward by Judge Facciola).  The concept of an information “pulse” is one that Ralph has touched on above, and that all lawyers of a certain age are (or should be) hyper-aware of, namely, the exponential increase in the volume of potentially relevant evidence, data, information and records that we are all experiencing and must cope with in litigation.   This is largely due to the information being created and received on the highly networked, interconnected world we live in.  Our wired world is something that seems taken for granted by my high school daughter (who is online virtually every waking minute of the day), but is really something very new.    But recall that the Web went from 20 host servers in 1992 to 100,000 in January 1996 – after the introduction of the Netscape browser in August 1995.  Now that’s a pulse!   At the end of my the information inflation article, I quote from the late astronomer John Archibald Wheeler, who said that tomorrow we will learn to express all of physics in the language of information.  Although e-discovery requests haven’t reached the far edges of our galaxy or of the known universe (yet),  information overload and information overabundance on Earth is, I’m afraid, going to be the continued defining characteristic of our age – for lawyers and for everyone, for as far as our crystal ball can see. 

TPL:    At numerous presentations you have both stated that understanding how information is processed throughout its lifecycle is essential.  It’s a process.  And that means change, especially as it relates to electronically stored information.  How does a general counsel start to address these issues? 

RL:      They should start to address these issues by forming an interdisciplinary e-Discovery Team. That is the critical first step and thus is the name of my blog –e-discoveryteam.com. This new Team needs to be properly staffed, funded and coached.  Otherwise it will probably sputter out and fail, or at least, not fulfill its full potential. Once the team is set up, one of the first tasks of the team should be to overhaul the company’s information management systems for ESI, including preservation hold procedures. Then the team should move onto ESI collection procedures when faced with litigation. Of course, to collect, you have to know where it is, and so the map and information management are critical threshold steps.           

JRB:   I can only “second” what Ralph says here.  As a career civil servant, I believe there is a real need for General Counsels or their equivalents in government to empower a select few attorneys across each component of a legal office, to work with CIOs, records officers, and heads of key business units, so as to jointly collaborate on such matters as retention policies, preservation and legal hold policies, IT procurement choices that have litigation consequences, and the like.  The problem is that even in 2010, most organizations lack a person or persons who wish to serve as mediator and translator of the various languages and disciplines involved (i.e., to serve as a Rosetta Stone, translating between communities who approach aspects of information asset management in  very different ways.)   I do have one overarching recommendation to General Counsels, however: find the youngest, just hired lawyer, to lead the effort – she or he should have no conscious awareness of the Apollo space program and men walking on the Moon (if they do, they really are too old to make much headway!)  

TPL:    How can technology help? 

RL:      You have to fight fire with fire. The problems of             too much information, ESI  complexity, dispersion, and chaos are all caused by technology. Inventions got us into this problem and so inventions will have to get us out of it too. Software and hardware are part of that, but only part. We also have to invent new methods which use the software and hardware as tools. We have to use these tools in a smart way. New software systems alone with a new legal gestalt will not work.  

JRB:    Ralph is absolutely right.  In the near term future (ten+ years from now), scientists hopefully will have developed sufficiently robust content analytics and other means of artificial intelligence so as to make us comfortable in automating much of present-day discovery, from preservation to collection to search and privilege review.  There will always be a human element to lawyering, of course,  but we have to move on beyond “everyone being their own recordkeeper” and “searcher” to more automated and sophisticated ways to tackle the growing problem of ESI volume. 

TPL:    Ok, a difficult question.  We have seen how the judges have taken more control of the discovery process, or at least we have heard judges and pundits saying they should.  Do you think the situation is now so overwhelming (data overload) we will see the rules changed this year as a result of the Duke Universirty conference this spring? 

RL:      I doubt it. The rules are not the problem, nor the solution. Education of the bench and Bar are the solution. From that you can infer what the real problem is. 

JRB:    I am not a fan of major rules changes so soon after the 2006 Rules amendments, although we can always do a better job wordsmithing.    I do believe that The Sedona Coference’s Cooperation Proclamation, if rigorously adopted by courts and complied with by litigants, would go a long way towards narrowing problems caused by data overload.  I’m honored to say that I have been invited to take part on one of the Duke conference panel,s and plan on talking about automation and technological solutions to rising e-discovery costs.  I‘m looking forward to the opportunuity to interact with like-minded colleagues on the bench and bar while there. 

TPL:    Jason, Ralph – many thanks for your time.  We’ll see you at LegalTech for the final version of e-Discovery: Did you Know?

RL:      Hope to see you and your readers there. I see your blog, The Posse List, pop up on my iPhone each day, and encourage you to keep up the good work!

JRB:    Thanks Gregory.  I have become a big fan of The Posse List and urge readers of this column to check out the excellent reporting from past conferences. 

Note to readers:  we’ll have a video interview with Jason and Ralph next week from LegalTech New York 2010.  And for those of you attending LegalTech here is where they are presenting:

Monday, February 1, 2010 starting at 3:30pm   Ralph will be on a panel entitled Ask The E-Discovery Doctors and he will be joined by Craig Ball (attorney and president, Craig D. Ball, P.C.), George Socha (attorney and president, Socha Consulting, LLC) and Dean Gonsowski (VP of E-Discovery Services at Clearwell Systems)

Tuesday, February 2, 2010 starting at 12:45pm   Jason will participate in a panel entitled Taking eDiscovery and Compliance to the Cloud.   The panel will be moderated by Deborah Baron (Vice President, Legal & Compliance, Autonomy, Inc.).  Other panelists will include Browning E. Marean (partner, DLA Piper), Wayne Matus (partner, Pillsbury Winthrop), Karla Wehbe (Senior Information Resource Manager, Risk Management, Bechtel) and Brian Weiss (VP eDiscovery & Information Governance, Autonomy) 

Wednesday, February 3, 2010 starting at 12:15pm    Jason and Ralph will be playing the video e-Discovery: Did You Know before they begin their presentation Let’s Have A Debate: The Hottest Behind the Scenes Topics in Search and Retrieval Today.  Also on the panel will be the Hon. Paul W. Grimm and Jeane A. Thomas, a partner in the Antitrust Group of Crowell & Moring and Chair of the firm’s E-Discovery and Information Management Group and a partner in Crowell & Moring’s Antitrust Group.

Reported by:  Gregory P. Bufithis, Chairman/Founder  The Posse List

As Posse List members know, especially members of Posse List Asia, e-discovery work in Asia has exploded.  We have seen work expand in China, Japan and Korea with the greatest expansion in Australia.  One company we have kept abreast of in the market is major player e.law Asia Pacific. 

Scott Gillard is head of the e.Solutions team at e.law Asia Pacifc Pty Ltd.  Scott has 15 years litigation consulting and project management experience in the legal, government and corporate market space and 9 years technical consulting, systems development and implementation experience in e-discovery as well as software design and development experience with regards to litigation support databases, e-discovery platforms and litigation workflow. Scott also has International litigation consulting and project management experience with a number of Legal Top 100 firms in the UK and US and Legal Top 20 firms in Australia. 

Michael So is Asia Regional Director Based in the e.law Hong Kong office, Michael brings with him over 15 years experience in management, business development and project management in the Asia Pacific region. Having worked with various leading IT&T and software vendors in senior roles, Michael is passionate about technology and its emerging role in the legal industry.  Michael’s experience with managing complex cross border projects makes him a perfect fit for our growing Asian operations. Michael is fluent in English and Chinese, and has extensive knowledge of all facets of litigation support in Asia. 

We met with Scott last year at The Masters Conference and Michael So at last summer’s LexisNexis e-Discovery Conference in Hong Kong, and then caught up with the whole team in their corporate headquarters in Australia. 

TPL:   Scott, when we met last year you folks were CCH Workflow Solutions.  Then e.law scooped you folks up in November. How did that all come about? 

SG:     The acquisition of CCH Workflow Solutions by e.law was a real surprise to the industry and has shaken things up considerably! e.law recognized, quite rightly, that the two businesses were really compatible and made a strong move to broaden their service offering.  The combination has been of incredible benefit to our clients, given that all areas of evidence collection and presentation are now covered by the one solution provider.  The merger has been a seamless transition for us given the pre-existing nature of both businesses. Everything has stitched together beautifully by filling the gaps that existed in both businesses in the EDRM model and further strengthening key areas such as e.discovery and document imaging and coding. 

MS:  I’d add to that by saying that the acquisition of CCH Workflow has enabled e.law to move with relative ease into the Asia litigation support market.  We’ve experienced huge demand for our services throughout Asia, the market is growing at an amazing rate and we have already a very healthy US + UK client portfolio who rely on our local knowledge and support when they have discovery needs in Asia. 

TPL:   Give me an overview of what e.law does.   

SG:  The best way to describe our business is as a specialized information technology advice and solution provider.  I know that is probably not very clear, but simply put we assist the legal profession, courts, Inquiries and even Corporates and Government agencies with complete data and document management solutions.  We provide products and services in five major areas; e.forensics, e.discovery, bureau services, e.courts and case management software solutions.  We provide services from legal photocopying and imaging, through to coding, electronic evidence discovery and even forensics. 

MS:  Our business model in Australia and Asia is essentially the same, however we experience a much greater demand for our hard copy processing services in Asia, for example imaging and coding of hard copy documents. Most of our business in Asia is for US and UK clients who have a matter involving document and data located in Asia.  It’s obviously a much better option for our clients to utilize the local e.law teams in comparison to flying their own team into an unfamiliar location and culture.  And of course they can always call on The Posse List to further the process with substantive review. 

TPL:   So the e.law team includes qualified lawyers, as well as skilled information technology specialists?   

SG:  Absolutely, our team comprises of experienced lawyers and business professionals who work closely with technology specialist, consultants and project managers to develop and deliver customised solutions.              

TPL:   That’s a significant investment in resources. 

SG:     Well, the legal knowledge and background means we have a keen understanding of our clients business and their pain points, combine this with some very smart technical minds and there is no project we can’t manage. 

TPL:   Give me an idea of the types of projects and clients you work with? 

MS:     It varies significantly, from your very small law firm with less than 20 staff to major projects such as Royal Commissions and huge multi-party litigations where you are dealing with tens of millions of documents in both hardcopy and electronic. We see anything from 1 box or 1 CD of documents to over 6000 boxes and terabytes of data. In terms of client base, this spreads across law firms, the corporate sector as well as the government sector.  Internationally we work with a large number of global organizations and in addition the legal firms that support them. 

TPL:   On your website you mention “e.solutions”.  What is that about? 

SG:     e.Solutions encompasses all of e.law’s electronic solutions for clients. This includes eDiscovery, our SaaS offering and our software development initiatives which service both our clients and our internal processes and systems. For example, no single “off the shelf” eDiscovery tool or document hosting platform meets all of our customer’s day-to-day needs. e.Solutions is about implementing the best tools in the optimum workflow with our own “special sauce” to deliver customers a market leading service across the entire business. 

TPL:   On your website you discuss your expertise in hard copy and electronic discovery.  Back in the U.S. we are freaking out over the “tsunami of e-data”.  Would you say that in Asia hard copy is more prevalent than electronic documents?           

SG:     Right now, paper is definitely still the predominant format in Asia. However the “tsunami of e-data” is fast heading Asia’s way. When we first setup our Asia business in 2002, we were 110% paper focused as the concept of eDiscovery just didn’t exist in that region outside of Australia. But via education and Singapore leading the way with the introduction of new rules around electronic discovery, the eDiscovery beast has definitely been woken up in the last 12 months. 

MS:     We have also seen a large increase in the necessity for cross border discovery, particularly off the back of the…wait for it…GFC.  

TPL:   The global financial crisis? 

MS:     Correct.  We are currently managing several matters where there is data  relevant to the one case located in Asia, Australia and the US.  

TPL:   With the onset of e-data we now have a new lexicon, funky technology — and not necessarily technologically astute lawyers.  Are most lawyers technophobic or perhaps they don’t see technology like those of us in the industry? 

SG:     I think that in the last 12 to 18 months in Australia that this has turned a corner. As the younger generation of lawyers start to filter through we are seeing a higher level of understanding and adoption of technology. These younger lawyers are also assisting with the education of the existing workforce. We are lucky in Australia that some educational institutions have electronic litigation built into their programs so lawyers have a head start when they hit the market. But there are still large gaps of knowledge in the market in regards to eDiscovery. 

TPL:   So it’s really a lack of knowledge, a lack of familiarity?  How do you help? 

SG:     What we do allows lawyers to focus on winning their case and not get distracted in the quagmire which can often be eDiscovery. If a lawyer is worrying about project managing the eDiscovery process, collecting data, processing data and producing data and what the difference is between a MD5HASH and a SHA-1 is, then …. 

TPL:   Hold on.  For our readers, MD5HASH and a SHA-1 are document signatures utilised to identify duplicate documents when you de-duplicate. 

SG:     Yes, thanks.  It’s complex technical stuff so we do not want the lawyers distracted from doing their main job — being lawyers. We remove all this worry, tone it down to a level which the lay person can understand and compliment what the client needs to do to satisfy their obligations. 

TPL:   And what do you think is at the forefront of the discovery process, the most important thing, the biggest challenge? 

SG:     Timeframes are shortening, volumes are increasing, head counts and overall budgets are decreasing but at the same time costs are expected to decrease disproportionately. The biggest challenge for both lawyers and service providers is to provide services at a significantly lower cost than what we are used to but at the same level of quality in faster timeframes. I think this challenge will see law firms move away from the “bill by the hour” model to a “project fee” model and likewise, service providers will have to fit in line with this methodology. 

TPL:   There is a feeling among in-house counsel (gleaned from the ACC meetings we attended) that direct relationships with e-discovery vendors is best, rather than through outside counsel.  Do your law firm clients perceive this as a threat to their business? 

MS:     The shape of the market in this area is changing by the day. We are finding since the onset of the GFC that everyone is looking to reduce costs and an outsource model is the best way to achieve this. The corporate sector are also becoming more educated and taking a more active role in how their money is being spent which is placing pressure on law firms who use full in-source model. Whilst law firms will always have a requirement to do some processes at some level in-house, with the possibility of the death of the billable hour, I think that natural progression will mean the outsource model will increase in popularity. 

TPL:    E-discovery vendors have also had much success the last 2 years moving into the e-discovery space across the whole EDRM model, especially in the area of document review (the “right side”) and that success is due to the continuing move by corporations to move EDD directly in-house.  Document review is a nice piece of change.  Is this a move you contemplate? 

SG:     Right now it is not core business for us, but it is something we have provided as a service in the past and something that we continue to look at into the future. Like anything, if you are going to do it, you have to do it right and providing document review services is not as simple as hiring a bunch of staff and throwing up a shackle which says “document review for hire”.  Our preference at this point is to have a reliable and tested partner, like The Posse List and Project Counsel to extend our service reach and provide this. 

TPL:   Ok, news flash.  There is a myriad of e-discovery vendors out there — review software, early case assessment software, ESI management software, etc.  How do you distinguish e.law from the pack? 

MS:     For starters, to the best of our knowledge, we are the only genuine service provider who can lay claim to international presence and experience, we’ve offices and service centers throughout Australia and Asia, servicing clients from Australia, UK, US and the EU.  We can get to any location, no matter how remote or unheard of, with mobile e.discovery and hard copy processing teams and generally we can mobilize with 48 hours. 

SG:     Exactly right, and add to that our breadth of services, take for example you have a case that requires a laptop to be forensically imaged, 50 boxes of photocopying, some fragile archive documents to be scanned, pst + e-files to be extracted and processed, then all loaded onto an online case management software accessible from anywhere in the world……exhausted yet?  We can manage this process for our clients from start to finish and we have talented experts who manage each stage to ensure absolute quality.  

TPL:   E-discovery costs are skyrocketing.  Yet much of EDD is now a commodity – and that has changed the structure of the market.  Prices are — shall we say — more predictable and probably more realistic.  E-discovery vendors have capped fees, set flat fees or worked with various forms of pricing estimators.  Have you changed your pricing? 

SG:     e.Law was the first service provider in Asia Pacific to offer eDiscovery processing on a “per gigabyte” rate last year. Traditionally pricing has been “per document” and/or “per page” which is often quite difficult to quantify up-front in order to provide cost certainty for the client. But what we have found in Asia is that there is no one size fits all approach to pricing. So we treat each customer as they come and build a pricing structure which suits their requirements. It might be per gigabyte, it might be per document or some hybrid of the two. 

TPL:   Scott & Michael, we greatly appreciate your time. 

SG:     Thanks TPL, we look forward to seeing you at LegalTech!

MS:     Thanks TPL, we always enjoy working with you guys and look forward to an exciting 2010.

Postscript:  LegalTech New York 2010 is one of the premier events in the industry.  It will be February 1, 2 and 3 in NYC (for details click here)  and you can find e.law in the Exhibit Hall at Booth 1421.

Steve d’Alencon is as vice president of product management and marketing and Chief Marketing Officer for CaseCentral.  He is responsible for leading go-to-market programs for CaseCentral, including product management, demand generation, public and analyst relations and marketing communications. 

And there are few folks in this industry with his pedigree.  He is a product management and marketing executive with more than 20 years of experience at top enterprise software and high technology companies, including running his own marketing consultancy in Silicon Valley.   Prior to CaseCentral, Steve was vice president of product marketing at Kazeon Systems, where he transformed its brand from a storage management company into an e-discovery product and solutions leader.   During his tenure, the company’s e-discovery and overall revenue grew significantly and it received recognition from ESG, Forrester, Gartner and IDC as being a leading product for in-house proactive and reactive eDiscovery in response to litigation, information security and privacy, corporate investigations and regulatory compliance requirements.  

We caught up with Steve at the ACC Annual Meeting in Boston last year, and then in New York at the recent IQPC eDiscovery conference. 

TPL:   Last year was a big year for CaseCentral.  It was selected as a “2009 Trend-Setting Product” by KMWorld Magazine due to the popularity of your early case assessment product; you led all vendors with the largest gain in usage by Am Law 200 law firms in the 2009 Am Law Tech Survey; and you attained Safe Harbor Certification.  But most important: your e-discovery cartoon series “Case in Point” was one-year old in October.  Which brings up marketing.  And branding.  The “Case in Point” series is brilliant and gives you so much industry recognition.  How did that start? 

SD:     Thanks.  But of all the things you focused on it had to be the cartoon?  Well, a brief history of the series:  Chris Kruse and I were having a discussion in mid-2008 about how we could start a creative marketing program that would improve CaseCentral’s brand awareness without being a “me too blog” or other “me too program.” He said, “Hey, I know a cartoonist, maybe we could start a cartoon?”  And ‘Case in Point’ was born.  We spent 3 months coming up with the concept, the name and the frequency.  The cartoon was launched at the 2008 ACC Annual Meeting and has been running weekly for about 67 weeks now.  I work closely with our cartoonist, Tom Fishburne, to help him turn industry ideas into funny cartoons.  It’s harder to be funny every single week than most people would imagine, but I think we have a good track record and we’ve developed a great, worldwide audience.  Our readers also supply us with some fantastic real-world ideas. 

TPL:   Thanks.  We always wanted to know.  Now, onto more important things.  What does CaseCentral do, in a nutshell? 

SD:     Ok, in a nutshell.  CaseCentral is the leader in secure, on-demand software for corporations and law firms to simplify and take control of eDiscovery.  The CaseCentral eDiscovery platform integrates collection, early case assessment, processing, analysis, review and production capabilities, enabling customers to succeed with a single matter and seamlessly migrate to multi-matter, multi-party support within the same software platform.    

The benefit?  CaseCentral enables repeatable, defensible and measurable business processes that significantly reduce eDiscovery risk, cost and time. In late 2008, CaseCentral built and delivered the industry’s first process analytics and eDiscovery dashboard upon our multi-matter, multi-party eDiscovery platform. 

Why is this important? Because CaseCentral’s process analytics and dashboard enable authorized users to receive real-time, quantitative measurement of key eDiscovery process points, providing critical insight into eDiscovery costs, trends and efficiencies. This information is vital for corporate legal and law firms alike to measure cost (per document, per matter, per law firm), efficiency (review time) and effectiveness (review quality) across one or multiple matters.

TPL:   And the CaseCentral/StoredIQ hook up.  What’s that about? 

SD:     If you use the Electronic Discovery Reference Model (EDRM) as a foundation, the announcement from CaseCentral and StoredIQ was all about creating a strategic partnership to provide clients with an integrated eDiscovery offering that ranges from identification, preservation, collection and processing of electronically stored information (ESI) through analysis, review, production and post-production re-use.  In other words, an end-to-end eDiscovery platform.           

TPL:   Ah, one development I forgot.  Last year CaseCentral debuted its “Review Service Providers Certified Partner Program” which provides training and tools for document review, using the partners’ review services bundled with CaseCentral’s review software.  A large segment of membership/readers are contract attorneys and/or involved in the review/production (“right-side”) of the EDRM.  

SD:     The CaseCentral RSP Certified Partner Program combines CaseCentral’s industry-leading eDiscovery platform with certified high-quality, low-cost domestic or offshore document review services offered by the RSP Partner, for example Cobra Legal Solutions or Compliance, LP. Within the program, projects can be quoted using three different pricing rates: per hour, per gigabyte or per document.  The pricing model creates informative pricing comparisons to provide clients with the most economical option available.  We have a number of RSPs with whom we have successful engagements and we’re always looking for more. 

TPL:   Early case assessment (ECA). That seemed to be the mantra in 2009.  And everybody seemed to have a product for it, was developing a product for it, wanted to have a product for it.  We all know why: “ECA and e-discovery integration equals huge savings”.  But not everybody can do it and you guys became a leading light.  How?  What’s the key?

SD:     CaseCentral’s first-mover position of providing a multi-matter, multi-party eDiscovery product that enables post-production re-use of work product has put us in what we now call the “ECA market” for at least five years. Part of the answer to your question goes back to examining the definition of ECA.   In speaking to our clients and doing our own research, we concluded that the term “ECA” sometimes is a misnomer in that people think it is one, finite thing and in fact it is not. We found that the term “ECA” was being used to describe a host of activities that could literally be performed early, during, or late in the dispute resolution process. The most commonly understood ECA effort is to analyze a relatively small data set against target custodians, date ranges and key words in order to cull that data set to a much smaller, potentially responsive data set for attorney review in order to limit costs and, presumably, risk. 

However, there are a number of limitations to this approach. First, most of the current Early Case Assessment tools are designed only for the matter at hand and require a data export to another tool for active review. Also, the manner in which ECA is often performed today provides a disincentive to clients to perform other types of analysis. In speaking to several of our large clients, they were interested in performing “what if” scenario testing and risk forecasting on very large data sets that could be multiple Terabytes in size. In addition, since these clients were using CaseCentral’s multi-matter, multi-party platform, utilizing historical system metrics, such as cost and rate of review, to deliver a scope and cost estimate for a new or pending matter enabled the client to more effectively make “fight or flight” decisions. 

These client needs, plus the more basic, contemporary uses of ECA, led CaseCentral to heavily focus on re-defining ECA away from a single purpose utility and instead delivering it as part of an integrated review and production platform. This led to our announcement in June, 2009 of delivering the industry’s first integrated eDiscovery platform, including ECA.       

TPL:   Ok, news flash.  There is a myriad of software out there — review software, early case assessment software, ESI management software, etc.  How do you distinguish CaseCentral from the pack? 

SD:     You’re absolutely right.  The exhibit halls do a seem a bit crowded of late [laughing].  Ok, there are 4 things that I think distinguish CaseCentral from the pack:  (1)  CaseCentral invented multi-matter, multi-case eDiscovery software.  The benefits of this are:  (a) enables clients to standardize on a repeatable process and (b) securely stores only one copy of client data in one location; (2) CaseCentral was the first cloud computing / SaaS delivery model for eDiscovery.  The benefits of this are: (a) enables clients to bring eDiscovery “in House” via the cloud; (b) extensive collaboration (multi-party) capabilities; and (c) instant-on with no CAPEX investment required; and (3) CaseCentral pioneered the integrated eDiscovery software platform.  The benefits of this are: (a) reduces risk by reducing handoffs between different applications and (b) eliminates expensive processing and labor at each step; and (4) CaseCentral  invented Process Analytics & the eDiscovery Dashboard.  The benefits of this are it enables quantitative eDiscovery process measurement for: budget forecasting; resource governance; risk and cost oversight; managing matter timelines; and production deadlines.  Clients can do this on a single matter or, more importantly, across all cases and matters, which is unique. 

For example, it was these things and more that compelled Boeing to select CaseCentral to provide a comprehensive set of repeatable, defensible and measurable eDiscovery capabilities as the corporate standard for new legal cases. CaseCentral will be used for early case assessment, processing, analysis, review, production and post-production re-use capabilities for both single and multiple matters. 

TPL:   Last year — for obvious reasons — corporations and their law firms were searching for and selecting more cost-effective e-discovery processes and technology.  How does CaseCentral fit in the “cost-effective” bucket? 

SD:     Well, let’s start with volume.  By our estimate Fortune 1000 corporations are managing more than 500 pieces of litigation at any one time. Matters range from small investigations involving a few gigabytes of data to large-scale “bet-the-company” cases in which multiple terabytes of data are collected. As corporations take greater control of this process they need cost-effective, defensible processes and tools to secure the best possible outcome without disrupting the company’s core business.  

We realized that despite the focus on ECA, incumbent vendors are charging a premium price of as much as $1,000 per GB for just this phase of eDiscovery.  This is what led us to deliver the industry’s first integrated eDiscovery software platform and to price ECA capabilities starting at $10 per GB, not $1,000 per GB,   We also introduced an Enterprise pricing model, which provided clients with a predictable, bundled monthly cost for GB processed, GB stored, ECA, review and analysis software, productions and services. 

Lastly, “cost-effective” isn’t all about dollar cost; it is also about efficiency and repeatability.  CaseCentral invented the multi-matter eDiscovery system and it is this notion that uniquely allows clients to templatize new case creation in moments, do advanced conflict checks to avoid inadvertent productions, do global de-dupe at the time of ingestion, to re-use prior work product in new matters as appropriate and to store a single copy of a document despite the fact that it is used in multiple cases with different workflows and designations in each.  

TPL:   Does CaseCentral operate globally? 

SD:     Given that more than 80% of active litigation is in the United States, CaseCentral primarily operates in the U.S. to support our clients’ U.S.-based matters.  We support multi-national clients, as well as U.S.-based clients. 

TPL:   At IQPC in New York in December you said “E-discovery delivered via the cloud is certainly a trend for 2010 because of the efficiency versus on-premise software”.  We discussed this at ACC in Boston when we met and you said there were pitfalls.  What, exactly?  Where do you see the problems, and the benefits/solutions for e-discovery? 

SD:     First, I need to define what I mean by “the cloud.”  I like a University of California,Berkeley definition:  “Cloud Computing refers to both the applications delivered as services over the Internet and the hardware and systems software in the data centers that provide those services. The services themselves have long been referred to as Software as a Service (SaaS), so we use that term. The data-center hardware and software is what we will call a Cloud. When a Cloud is made available in a pay-as-you-go manner to the public, we call it a Public Cloud  We use the term Private Cloud to refer to internal data centers of a business or other organization that are not made available to the public.”  Personally, I feel that the definition of “cloud computing” does not usually apply to hosted applications (including ASPs) where a reseller is simply allowing you to access an application that s/he is hosting on your behalf..  In the eDiscovery industry, it is also important to differentiate services based upon public Cloud infrastructure like Amazon S3 and Google Docs.  The reason for this is that in those services, you don’t know where (including what country) your files are stored and you don’t know if you can really control document retention and destruction.  As a client, you need to know that you are completely in control of your data and a private Cloud is the only way to do that. 

In early 2009, CaseCentral delivered the first private cloud computing-based eDiscovery software platform with centralized data management and enterprise-class security, reducing the risks typically borne by clients when they transmit proprietary and confidential data outside the firewall.  CaseCentral’s platform delivers a collaborative, multi-party application platform and single-instance storage along with the industry’s only enterprise-class eDiscovery disaster recovery and business continuity protocol to safeguard client data.  

If you think of the EDRM, the moment you cross over from collection to processing, analysis, review and production, you are involving multiple resources (outside counsel, contract reviewers, service providers, etc.) that reside outside of your company and network.  Cloud-based applications like CaseCentral are built from the ground up to provide a secure, collaborative platform that allows you to manage your proprietary data in a single place while allowing 10s, 100s or 1000s of users outside your firewall to productively access that data on your behalf. 

And, as we’re talking about eDiscovery and the Cloud, a recent Gartner, Inc. report, “Predicts 2010: Regulatory Changes and Business Demands Will Drive the Long-Delayed Adoption of Legal Discovery Technology” published November 17, 2009, states “Application service providers, software-as-a-service delivery models and “cloud” solutions will dominate the review and analysis phases of e-discovery.” 

TPL:   Another thing we discussed at ACC was controlling electronic discovery using in-house resources.  Can you give us an overview on what CaseCentral is doing for in-house law departments? 

SD:     Certainly, this is one of my current pet peeves .  The notion of “in-house eDiscovery” has been over-hyped and over-marketed.  In particular, many vendors have shaped the incorrect implication that “bringing eDiscovery in-house” means the purchase, installation and on-going management of on-premise software for various eDiscovery tasks.  This is particularly misleading.  I prefer to begin with this premise of “bringing eDiscovery in-house” instead:  rather than relinquish control of the eDiscovery process to 3^rd party experts and their firms, in-house legal teams and their executives are trending toward retaining control of decision-making, creating and owning the overall process and acting as collaborative partners throughout the life cycle of a particular matter. 

It is this equilibrium that will dictate the growth and development of electronic discovery in the years to come, and not simply technology or regulatory guidelines. Those who embrace the internal/external partnership will streamline progression and enhance their readiness for favorable outcomes. 

At Case Central we bandy about the phrase, “bring eDiscovery in-house using the Cloud.”  The point of this is that adoption of SaaS and cloud computing-based software continues to rapidly increase as corporations and law firms have awoken to utilizing reliable and proven cloud-based systems for eDiscovery to drastically reduce application deployment time and receive “instant on” availability for new matters.  Initial cloud computing deployment and on-going maintenance costs are also much less than traditional on-premise software deployments.  And, using the cloud provides virtually unlimited and elastic storage of data. 

….. and there is a lot of data out there. 

TPL:   Ok, bingo.  You have hit on the purpose of this series of interviews. The “tsunami of data” as Ralph Losey says.  A volume of data (and cost of discovery) which seems to be exponentially greater by the minute.  In a nutshell, how do you help clients cope, get organized? 

SD:     Electronically stored information has a compound annual growth rate of nearly 60%.  It was estimated by IDC that by 2011, over 1,800 Exabytes of will exist.  That’s 1,024 Petabytes for each Exabyte.   And there are 1,024 Terabytes in each Petabyte.  In short, we’re all creating a lot of data!  CaseCentral’s expertise lies in dealing with the information that has been collected for a particular matter.  Our partners on the left side of the EDRM specialize in general information management disciplines and we have several strong partnerships there, including CommVault, StoredIQ and Symantec. 

Our goal for our clients is always to minimize risk, cost and time as it relates to collection, processing, data analysis, review and production.   Obviously the specifics can vary greatly depending upon the particular matter. 

TPL:   So, we now have a new lexicon, funky technology — and not necessarily technologically astute lawyers.  Are most lawyers technophobic or perhaps they don’t see technology like those of us in the industry? 

SD:     First, as Ralph and others correctly assert, technology is not a required program of study to graduate from law school.  Second, as a technology executive, I have a hard enough time myself keeping up with all of the changes and advancements in technology – business, personal or otherwise. In fact, when I stop to think about the decade that just ended, we began it without Facebook, without Twitter, more or less without blogs, without texting cell phones and, God forbid, without Apple iPhones!  So, it’s no surprise that lawyers have a hard time keeping up with technology.  Having said all of that, I prefer to view the issue in terms of a mindset.  Those who view technology as “the enemy” are missing the point – electronically stored information (ESI) accounts for more than 90% of information being created every day and, as a result, it is inevitable that this ESI will become relevant in the courtroom. 

TPL:   So it’s really a lack of knowledge, a lack of familiarity?  How do you help? 

SD:  Yes.  CaseCentral is a trusted advisor to clients from case initiation to conclusion.  We strive to do everything we can do to de-mystify technology and its implications for our clients. 

TPL:   And your technology works no matter what — potential litigation, government investigation, internal investigation, whatever? 

SD:  Yes.  Potential litigation, government investigation, regulatory request, internal investigation, active litigation, class action, etc.  CaseCentral made its name on the largest, most complex cases out there and in over 15 years of business has repeatedly demonstrated an ability to scale from small to large in terms of cases, users or data volume. 

TPL:   And what do you think is at the forefront of the discovery process, the most important thing, the biggest challenge? 

SD:     In the past 20 years, virtually every department within the corporate enterprise has undergone some sort of Six-Sigma process review and improvement except the legal department.  The fundamental objective of the Six Sigma methodology is the implementation of a measurement-based strategy that focuses on process improvement and variation reduction.  Many types ofwell-known software help to accomplish this kind of improvement.  Think of GL, ERP, Supply Chain, Manufacturing, CRM and other related types of software that help enterprises become measurably more efficient.  This need for measurable legal process improvement is precisely the reason CaseCentral invented its eDiscovery Process Analytics and Dashboard.  The direct benefit of this development is repeatable, defensible and measurable business processes that significantly reduce eDiscovery risk, cost and time. 

TPL:   There is a feeling among in-house counsel (gleaned from the ACC meetings we attended) that direct relationships with e-discovery vendors is best, rather than through outside counsel.  Do your law firm clients perceive this as a threat to their business? 

SD:  I think this is directly related to the notion of taking eDiscovery “in-house.”  The point is that in-house counsel are increasingly taking control of their eDiscovery processes and standardizing so they are repeatable, defensible and measurable.  The fact that in-house counsel are taking control of their eDiscovery processes does not degrade the importance of their relationship(s) and partnership(s) with outside counsel.  CaseCentral is committed to serving both inside and outside counsel and while we may have a direct relationship with inside counsel in some circumstances, we also maintain strong relationships with outside counsel. 

TPL:   E-discovery vendors have also had much success the last 2 years moving into the e-discovery space across the whole EDRM model, especially in the area of document review (the “right side”) and that success is due to the continuing move by corporations to move EDD directly in-house.  Document review is a nice piece of change.  Do you think you might move into direct document review? 

SD:     You mean actually staffing document review projects?  No, not at all.  The “Review Service Providers (RSP) Certified Partner Program”  I mentioned earlier provides the solutions to expedite the document review process.  We simply provide a “bundle” so to speak, offering clients a one-stop shop for initial document review using the RSP’s review services bundled with CaseCentral’s on-demand single matter and multi-matter, multi-party eDiscovery review software.   Our partners can now offer all-inclusive reviewing services based on a pricing model – per hour, per document or per gigabyte – that best meets their client’s needs.  But CaseCentral actually staffing?  No.  That is not our expertise. That is the expertise of our partners. 

One concluding point on this.  Outsourced review has traditionally been touted as a low cost option for document review, but locating certified attorneys or a trusted business partner has become a challenge for many companies.  Through the RSP Certified Partner Program, CaseCentral helps clients solve that problem.

TPL:   E-discovery costs are skyrocketing.  Yet much of EDD is now a commodity – and that has changed the structure of the market.  Prices are — shall we say — more predictable and probably more realistic.  E-discovery vendors have capped fees, set flat fees or worked with various forms of pricing estimators.  Have you changed your pricing? 

SD:     The challenge in 2010 for everybody — vendors, law firms, etc. — is going to be to reinvent ourselves with new economic models.  I certainly agree that the value creation of a number of EDD activities, especially processing, is suspect and the price elasticity has been appropriately impacted.  It has been broadly reported that document review comprises greater than 60% and perhaps as much as 80% of the cost of eDiscovery, which is substantially driven by the cost of humans to review and produce case documents.  This reality is a primary driver for the surge of interest in the use of technology to automate, streamline and measure eDiscovery processes. 

While most of the industry has been mired in a la carte pricing on a per GB basis, CaseCentral introduced the industry’s first “Enterprise Pricing” which provided clients with a predictable monthly cost for GB processed, GB stored, ECA, review and analysis software, productions and services. 

Some of our clients love the enterprise pricing model and the predictability it offers. Others prefer to be billed in an a la carte fashion.  It’s their choice. 

Also, CaseCentral announced today a new connector that integrates Symantec Enterprise Vault Discovery Accelerator, the leading enterprise archive, with the CaseCentral eDiscovery Platform, the leading cloud-based eDiscovery software, eliminating the need for IT and legal departments to manually export and upload large amounts of data for legal review.  Clients using the new connector will bypass EDD processing fees for data moved into CaseCentral from the Symantec Enterprise Vault, and simplify the handoff process, thereby removing risk by eliminating the opportunity for error.  The CaseCentral Connector for Symantec Enterprise Vault Discovery Accelerator will be demonstrated at LegalTech New York in the New York Hilton, February 1-3.

Oh, did I mention that there are absolutely no processing fees for data received via the new connector?  Say “hello” to the eDiscovery in the 21^st century! 

TPL:    As we discussed, the big “new new” thing all of last year — at every event we covered — was early case assessment and winnowing relevant data down to reduce the number of documents to review.  As the stats bear out, it is the most expensive part of the process.  But now we have predictive coding, plus the work being done in computer assisted review as evidenced by Patrick Oot and Anne Kershaw’s study “Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review “, plus the work being done by Google and Microsoft on auto-categorization or auto-coding.  Are we headed down the path to where machines can be statistically proven to be as accurate as human review?  Is the technology getting to the point where we can also winnow out the eyeballs — contract attorney reviewers? 

SD:     Like in The Terminator, War Games, The Matrix and other movies, I believe there is a human element and perspective that is important to maintain in the document review business.   But these newer technologies hold great promise for speeding up first pass review, especially on very large data sets, providing intuitive recommendations to reviewing and managing attorneys and for increasing consistency and accuracy.  CaseCentral is helping to develop and implement some of these technologies for clients, but I don’t think we’re ready to turn on the auto-pilot just yet. 

TPL:   Steve, we greatly appreciate your time. 

SD:     Greg, it is always a pleasure to speak with you.  The Posse List is one of my top 3 sources for industry information; I don’t know how you do it!

Postscript:  LegalTech is one of the premier events in the industry.  It will be February 1, 2 and 3 in NYC (for details click here) and you can find Case Central in the Exhibit Hall at Booth #311, as well as in the Gibson Suite.

Further, CaseCentral is the sponsor of the Day 2 keynote, “Perspectives on Corporate eDiscovery and Social Media,” presented by Mark Howitson, Deputy General Counsel of Facebook.  That’s Tuesday, February 2nd, @ 9am.