Reported by:  Alexis Gambetta / The Posse List 

There were multiple sessions covering early case assessment (ECA) so we’ll summarize a few of them.  We followed the  General Counsel Track and attended “Data Retention Plans and Early Case Assessment-Moving Towards a More Effective System In-House” which was sponsored by Merrill Corporation.  

We also attended the session “Advanced Discovery Analytics and Early Case Assessment” sponsored by Deloitte.

And we had an opportunity to chat with the StoredIQ team who are a bit of an expert in intelligent information management and e-discovery technologies and have (in their words) “revolutionized” ECA.   But they have very interesting technology and a unique approach and they were open to a long chat so we’ll start with them.

So here’s the skinny.  The vast majority of legal cases are settled before ever going to trial.  One of the one of the most valuable and indispensable techniques used by corporate counsel is early case assessment (ECA).  The only argument remaining:  how early it should occur – as early as the initial data gathering at identification and collection, or just before review but after processing?  Or maybe when it is still at the dispute stage?

As Ursula Talley (Vice President of Marketing for StoredIQ) explained “using ECA, legal counsel can assess the merits of a dispute, formulate a legal strategy and make decisions concerning the matter before the costly process of taking the case to trial begins”.   But traditionally ECA occurs close to the review stage of the e-discovery process since it requires that data already be processed and loaded into a review system.  And if you are a contract attorney waiting to begin that review you know the galacial pace of e-discovery:  counsel first determines who is involved (custodians), then preserves and collects their data so that the initial analysis and review can begin.  Maybe.

Expensive, inefficient and prolonged.  Why?  Because collection and preservation involves manual, forensic copying of the custodian’s hard drive and a complete data dump of the custodian’s archived email and documents into a central repository.  Only then can processing and analysis be performed to ready the data set for a first pass review. 

StoredIQ refers to performing ECA “in the wild” meaning where the data natively resides, and the need to have the ability to perform incremental collections. This eliminates the need to repeatedly collect the same data from custodians that are frequently subject to e-discovery requests. 

They have a product (surprise!) to address all of these issues and the product is called  StoredIQ Analyze Anywhere.   In brief: it enables ECA prior to preservation and collection, without requiring the movement of data from where it natively resides. This powerful ability to perform early case analysis on data “in the wild” to give legal counsel the ability to assess the merits of a dispute, formulate a legal strategy, etc., etc.  The goal is to make decisions concerning a legal matter significantly faster than traditional ECA.  What you are doing, in effect, is conducting ECA at the earliest stages of e-discovery without having to migrate ESI from various sources into a centralized repository. 

The interesting part is that StoredIQ has a data classification technology so that the business context of data in its native location is not only available to the ECA user, but is also captured and pushed downstream to traditional review tools enabling a more contextual review experience. 

This is important because as we learned at the Merrill Corporation session the ability to perform in-place ECA must be complemented by an e-discovery workflow that provides a simplified and efficient way to cull potentially matter-relevant data.  You need to process and analyze large initial data sets with user-friendly analysis features to help make sense of a mass of information.   

The Merrill panel was moderated by Daniel Pelc of Merrill and included Wendy Curtis, Esq. (Special Counsel, Orrick, Herrington & Sutcliffe) and Paul Weiner (a shareholder with Littler Mendelson).

The panel started off with a definition of early case assessment as follows:

Early case assessment can be defined as the following: “the implementation of litigation analysis and management protocol that provides for the assembly and review of appropriate information on an expedited basis (30‐90 days) in order to provide a preliminary assessment of the case and the optimal method for proceeding.”

They also discussed that the technology behind ECA has changed drastically over the past years. The number of competitors has risen and partnerships between ECA vendors and providers within the ECA vertical has exploded.

This was the most interesting aspect (for me) because the panel went through the beginnings/sources of ECA and search and put it all into perspective, explaining its development being from two sources:

The Legal Concept:  FRCP 34 includes electronically stored information (ESI) in its definition of a document.  Counsel must “scope” or “assess” the size of their client’s relevant ESI that must be produced in any given case.  See, for example, PhoenixFour, Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006) (click here).  In order to determine what documents are relevant, counsel must cull and apply search terms to client’s data to produce rlevant documents. Large data sets were first processed, culled and then searched, which was very costly.

The Technological Concept:  Client’s data was (and is) unstructured.  Client and counsel had difficulty locating all relevant documents in a case.  Costs were high to comply with discovery obligations.  ECA tools, originally created as part of  records and information management (RIM) systems were used to structure and capture client’s data and/or locate, via culling and search terms, to find relevant data prior to processing.  Result: only relevant documents processed and reviewed = Large cost reduction.

So these early ECA methods left you with:

Processing side:  untargeted custodian interviews/untargeted data identification/untargeted preservation and processing/“brute force” review/no lasting value to case

Technology sde:   limited culling and searching capabilities over limited number of repositories/keyword searching only (no concept searching tools)/limited or incomplete data clustering

So that brought a new “proactive” approach to ECA resulting in:

Process Driven (Strategic): RIM/Document Retention Plan (DRP)/e-discovery Response Plan (EDRP) including litigation hold policies and procedures/leverage existing DRP and EDRP to prepare for and conduct ECA

Technology Driven (RIM and Analysis):  leverage existing technologies (RIM technologies, dynamic Data Mapping, and embedded or overlaid ECA tools) to prepare for and conduct ECA/targeted preservation and review thru data sampling, analytics and metrics/preserve, hash and collect relevant data/establish defensible audit trails and logs

And the big thing was search methodologies of which there are now a gazillion.  Ok, they told us about 15:

Boolean searches (and, or, not)

Wildcard searches (*auto*, *tion)

Proximity searches

Thesaurus/Synonym search

Fuzzy searching

Stemming

Statistical searching

Conceptual searching

Content-based searching

Topical searching

Weighted relevance searching

Adaptive pattern recognition

Associative retrieval

Natural language or non-boolean retrieval

Clusters of related phrases

The problem with searches, though, as the panel warned was the result.  Quoting Sedona:  “Sedona: “The use of search and information retrieval tools does not guarantee that all responsive documents will be identified in large data collections, due to characteristics of human language. Moreover, differing search methods may produce differing results, subject to a measure of statistical variation inherent in the science of information retrieval.”

The panel moderator (Daniel Pelc of Merrill) gave us the entire Powerpoint presentation which includes all the notes and slides and it is a treasure trove of information on ECA, search, and more.  You can access it by clicking here.

Postscript:

The StoredIQ software was extremely interesting to us because while the company was flagging it as early case assessment software the reality is that the ”in the wild” approach actually means you can analyze your situation well before preservation and collection, without requiring the movement of data, from where it natively resides.   And this means, says Ursula, you have the ability to assess the merits of a dispute before it event becomes “a case”.   StoredIQ is in the vanguard of companies like CaseCentral and eTERA Consulting who are moving beyond (off?) the left side of the EDRM into early information assessment.

We’ll have an in-depth interview with Ursula later this month and you’ll learn more about  the ”in the wild” approach.

Merrill Corporation has a wide reach.  It is one of the largest world-wide vendors for outsourced services in business communication and information management.  Merrill’s services include document and data management, litigation support, language translation services, financial transaction and compliance services, virtual deal rooms, branded communication programs, fulfillment, imaging and printing.

Last year Merrill launched its Document Review Service which is geared to helping its customers more efficiently manage document review — and control rising discovery costs.  It was a natural progression for Merrill given their extensive experience and expertise in electronically stored Information (ESI) management, document translation, court reporting, etc.

Back in the 1980s, as beginning lawyers on Wall Street, we spent many days and nights in the Merrill proofing rooms at 225 Varick Street in NYC editing 10-Ks, 8-Ks, S-1s, etc. as they came off the Merrill presses.  We revisited that Varick Street location — home to Merrill’s New York headquarters — to meet with Jim Moore, Executive Vice President of Merrill Brink International, and Vanessa Vidunas, Director of Staffing Operations for Merrill Brink International.

TPL:    We’re cringing.  We used to spend hours in this room editing printer proofs.

JM:      [laughing] But we did feed you pretty well and you got your proofs back on time.

TPL:     TPL:    You did.  And it was like a cruise ship.  Food and drink 24/7.  Full breakfasts, lunches and dinners.  You guys still do that printing stuff?

JM:       Absolutely. There have been many regulatory and technology changes since then but the core service remains.  Want to come back?

TPL:    I think we’ll take a pass on that, thanks.  Ok, Merrill’s Document Review Service.  Give us some basics.

JM:        The launch was a natural for us.  We already offer translation services so offering that in tandem with multi-lingual document review provides our customers with a seamless integration with the e-discovery process, which I’d like to say is a rather unique offering in the industry.   We use teams of experienced attorneys (recruited by Vanessa and team) who are specially trained and many are Lextranet® certified (that’s our proprietary software) although our attorneys are versed on a number of software platforms. Once we had our infrastructure in place, we got requests for English review as well and we now offer both.

VV:      And I want to add that we can handle cases of any scope or size, including cross-jurisdictional and multi-national litigation as well as regulatory matters.  Additionally, our review space is state-of-the art, secure, comfortable and well-decorated.

TPL:    Ah, yes.  Multi-lingual and cross-border cases.  That is a huge market these days.  Your folks are in the U.S. but also a major presence in Europe, yes?

VV:    Yes, we have a presence in Europe and are seeing a growing demand for contract attorneys in that market.  The downsizing of the past 18 months has contributed to this need.  In 2009, we had the opportunity to work with both law firms and corporations who are based in Europe.

TPL:     Ok, we can almost predict the next phrase.  Don’t tell me.  You offer “end-to-end litigation support services.” 

JM:         [laughing] Ok, all service providers say that, I’m sure.  But we do.  And it’s a natural for us.  We are already providing case-related information and management services to the Am Law 200 and Fortune 500 corporations.  How do you reduce what seems to be ever-rising litigation costs, especially the discovery process?  Simple.  You leverage with a partner who has a wide spectrum of litigation services that can meet the needs of a case, no matter how large, complex or varied.  Merrill provides some of the most comprehensive case management services around.  If you check our website www.merrillcorp.com/legal you can see we offer initial discovery; audio and video deposition search and synching; document extraction, review and processing; multiple language translation; trial preparation; final production and trial presentation. And all of it is handled by superbly trained project managers who guide the process from inception to completion.

TPL:    So the majority of your clients are corporations, or law firms? 

JM:      It is a healthy mixture of both. We are seeing a trend where the General Counsel’s office tends to be more directly involved in choosing providers for ancillary services like document review. In those cases we work closely with outside counsel but our client is ultimately the corporation. 

TPL:    Vanessa, getting back to the contract attorneys who have to staff projects:  how do you recruit? 

VV:      We have an existing database of qualified contract attorneys that we can draw from. In addition, candidates are sourced through job boards, legal listserves, recommendations, word of mouth as well as my personal knowledge of many of the candidates in the industry.  After a rigorous screening process, candidates are considered for opportunities that arise based upon qualifications. 

TPL:    But you are also battling a contract attorney market (and NYC seems the worse) that has a surfeit of poor working conditions, low pay, mistreatment, lack of respect.  What is your read on all this, the whole overall condition of the contract attorney market, and Merrill’s answer? 

VV:       I read the blogs out there and I know from contract attorneys who I interview what law firms and agencies are raining down on the industry.  But we are far above that.  We are running a business and are certainly concerned with margins and managing costs during these challenging economic times; however, we believe that paying a fair market rate and treating our employees with respect garners loyalty and results in a better work product. Contract attorneys often have a choice as to where they will work and we want the best ones to choose us because of the culture and environment we offer. 

TPL:    Some of your postings on The Posse List have sought BigLaw associates or BigLaw experience.  Is this client driven? 

VV:       It is.  We can recommend to a client who we think they need to staff a project but many clients — mindful of these difficult financial times and knowing about the massive layoffs and the paradigm shift in the legal industry — often request we search out ex-BigLaw associates.  But clients have been asking not only for former BigLaw attorneys, but for candidates who have specific skill sets.  Many times the projects we get are more complex than straight doc reviews.   We also know the depth of The Posse List membership and we can usually staff what we need between our own database and your list. 

TPL:    And pay rates? 

VV:       Our pay rates are competitive with what the market will bear.  But lately we have worked with law firms — clients have become more and more savvy in the costs associated with document review — that tell us “we have budgeted “X” amount of dollars for the review part.  You need to work within the following pay rates …” Many clients are looking for alternative pricing models.  I would not be surprised if the model moves somewhat away from hourly and more towards a per document pay model as clients search for higher rates of productivity from the reviewers. 

TPL:    We saw a rough patch earlier this year with a huge fall off in work because of the financial meltdown.  How was 2009 for you and what do you see for 2010? 

JM:      We got off to a quick start in 2009 despite the economy and we are bullish about the prospects for 2010. 

TPL:    So you think we are back to form? 

JM:      Most indicators point to a better year ahead. 

TPL:    Your expertise seems to be foreign language projects given Merrill’s depth in that area.  As we have reported, FCPA and IP litigation cases dominate the project/contract attorney market.  We estimate they comprise 80% of our postings.  Is that the highest percentage of your work?  

VV:       Although we began our review business by focusing on bilingual projects, we are equally adept at English only projects. In 2009, we staffed many projects that had no foreign language components; however, in recent months, the hot matters in the market do seem to be in the areas of FCPA and IP litigation cases. In order to be successful, we watch trends and try to stay ahead of them to the extent possible. 

TPL:    There has been a creeping demand for greater use of contract attorneys by corporations, a trend we reported on earlier this year.  Have you also been staffing in-house legal departments?  

JM:      Yes we have. Merrill has a solid base of clients in corporate legal departments and our document review service is a natural complement to the other services they buy from us. 

TPL:    Lextranet, your document management software.  You have had the product since 2007? 

JM:      Correct.  We acquired Lextranet in 2007 because we were becoming a leading provider of Web-based litigation support and case management systems. Lextranet was a Web-based platform with transcript and case management tools. It fitted perfectly with our litigation support products/solutions.  And then we ramped it up. 

TPL:    By doing what? 

JM:      Well, lots of stuff.  For instance we augmented its native search capabilities with conceptual search, in this case by incorporating third-party software from Cognition Technology.   Conceptual search — looking for documents not by matching keywords, but rather by identifying documents containing words related to a concept — was the way the market was moving.  [To read full details on Merrill Lextranet click here]. 

TPL:    Frankly, after awhile, it becomes difficult to distinguish document review products.  Why are you different? 

JM:      E-discovery management takes more than great technology – experienced people can streamline each project and help you manage through inevitable challenges. Merrill offers an extraordinary breadth of export support – from the 1^st level review to preparing for trial, we will deliver creative and fiscal value. 

TPL:    ”The Big Enchilada” is Federal government contract work.  There is a flood of work from the FDIC, SEC, Treasury, etc. — standard financial document review and processing contracts which we reported numerous times in our previous posts.   There must be 10 contracts a week posted to the FBO.  Are you going for this work? 

JM:      Merrill I believe has worked with all or most of the agencies you mentioned as well as several others.   If value is perceived on quality, performance and consultative services, and price is not the only factor, then we are a competitor in the government sector. 

TPL:    One thing that has been in the press has been Merrill Lextranet Transcript Repository. What is that? 

JM:      Well, we are now in Version 2 of that product.  We have some updates, including search and synching for video depositions, a feature unique in the litigation support marketplace.  The program provides a secure, web-based environment that allows multiple users to log in with a secure internet connection from any location with 24-hour access. This connection allows users to search, organize, and manage deposition calendars, transcripts, and other legal documents. Users will also have access to a keyword-searchable video deposition library. 

TPL:    There is a lot of competition out there amongst agencies.  How does Merrill separate itself from the pack?  

JM:      First of all, we are much more than just a “body shop” for contract attorneys. Our service exists as part of a comprehensive e-discovery solution offered under one roof by Merrill Corporation.  More and more clients are looking for an integrated solution and we are uniquely qualified to offer that. 

Secondly, our roots in the translation business allow us to offer a bi-lingual review service that is unmatched in the industry. We offer language identification services in the processing stage that allow for a more structured and cost-effective review. We also offer professional translation of pertinent documents coming out of the review process. 

We also have a global footprint that allows us to provide reviewers and space in key locations throughout the US and around the world.  

TPL:    You have also partnered with the University of Alabama School of Law to conduct a course on ESI, yes? 

JM:      We have.  As you know, getting ESI knowledge into the law schools is a major movement today.  We have a partnership with the University of Alabama School of Law in conducting a course to prepare law students for the growing number of cases that involve electronically stored information.  The course is entitled “The Paperless Lawsuit: Preparing the Law Student for Trial Practice in the Age of E-Discovery” and it will begin this month.  The course will provide students with the emerging case law on electronic discovery and its application to technology, along with the use of pragmatic practice tools.  It is one of the first courses in the nation to provide hands-on training in reviewing actual electronic documents using the most current document review tools. 

TPL:    What Merrill personnel are involved? 

JM:      The School of Law hired Allison O. Skinner, Esq. of Sirote & Permutt, P.C. to serve as its first Adjunct Professor to teach this course.  Skinner collaborated with Melissa Rogozinski, senior account executive, and Chris Browne, senior sales engineer, both of Merrill Corporation, to construct a portion of the course to provide students with practical hands-on experience handling electronically stored information.  

TPL:    Jim, Vanessa — thanks for the time. 

JM:      Our pleasure.  I think The Posse List is an excellent source for jobs/projects and for learning about the e-discovery market.  Keep up the good work.

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 Merrill Brink in the Exhibit Hall in Booths 2000 to 2004 o Level II.

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. 

Merrill Corporation has announced the launch of a Document Review Service to help customers more efficiently manage document review and control rising discovery costs. Merrill`s Document Review Service uses teams of experienced attorneys who are specially trained and Lextranet certified.

Merrill can handle cross-jurisdictional and multi-national litigation as well as regulatory matters. For multi-lingual and cross-border cases, Merrill offers translation services in tandem with multi-lingual document
review.

For the full press release click here.