Category Archives: eDiscovery

Index and Search In-Place Workflows Key to Reducing eDiscovery Costs and Risks

By John Patzakis

Most core eDiscovery costs (outside of attorney review) stem from over-collection of electronically stored information (ESI). While direct collection costs can seem inexpensive, law firm Nelson Mullins notes that “over preservation tends to have its own costs relating to storage of large amounts of electronically stored information (ESI) and the resources needed to manage it; leads to increased downstream e-discovery costs associated with collection, processing, and review.”

Traditional eDiscovery workflows typically involve broad and manual collection efforts, followed by on-premise hardware-based processing, and finally upload to review. These inefficiencies extend projects by often weeks while dramatically increasing cost and risk with bloated data volumes and many manual data handoffs.

Proportionality-based eDiscovery is a goal that all judges and corporate attorneys want to attain. Under Federal Rule of Civil Procedure 26(b)(1), parties may discover any non-privileged material that is relevant to any party’s claim or defense and proportional to the needs of the case. However, attorneys representing enterprises are essentially flying blind on this analysis when it matters most. Prior to the custodian data being actually collected, processed and analyzed, attorneys do not have any real visibility into the potentially relevant ESI across an organization. This is especially true in regard to unstructured, distributed data, which is invariably the majority of ESI that is ultimately collected in a given matter.

If accurate pre-collection data insight were available to counsel, that game-changing factor would enable counsel to set reasonable discovery limits and ultimately process, host, review and produce much less ESI. Counsel can further use pre-collection proportionality analysis to gather key information, develop a litigation budget, and better manage litigation deadlines. Such insights can also foster cooperation by informing the parties early in the process about where relevant ESI is located, and what keywords and other search parameters can identify and pinpoint relevant ESI.

A solution to these challenges is the utilization of index and search in-place technology. Indexing and search in-place in this context means that a software-based indexing technology is deployed directly onto file servers, laptops or even in the cloud to address cloud-based data sources. This indexing occurs without a bulk data transfer of the data. Once indexed, the searches are performed in a few seconds, with complex Boolean operators, metadata filters and regular expression searches. The searches can be iterated and repeated without limitation, which is critical for large data sets.

Mandi Ross, CEO at Insight Optix explained how she applies proportionality when advising lawyers and judges through custodian interviews, coupled with detailed keyword search term analysis based upon the matter’s specific claims and defenses. She noted that technology such as X1 greatly enables the application of her practice in real time: “The ability to index in place is a game-changer because we have the ability to gain insight into the data and validate custodian interview data without first requiring that data to be collected.”

But it is important that the technology employed truly enables index-in-place, with the indexes deployed directly onto the laptops, file shares or cloud servers where the data exists. Some providers will market their tools as such, but the indexing and searching actually takes place in their platform at a central location. Data must first be copied and collected off of laptops and file servers and migrated over the network to get the indexing engines.  This does not scale for eDiscovery. For information about X1’s index-in-place technology, X1 Enterprise Platform, please visit us here.  

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Filed under Best Practices, eDiscovery, Enterprise eDiscovery, ESI, Preservation & Collection, proportionality

eDiscovery Services Are Undergoing a Major Transformation

By John Patzakis

Recent research from industry analyst Greg Buckles at the eDiscovery Journal highlights soaring valuations for eDiscovery tech firms.  For the first time in the history of the industry, multiple eDiscovery tech firms have gone public in a single year, and by my count, there are at least seven tech “Unicorns” (a company with at least a billion dollar valuation) in the space. Relativity leads the way with at least a $3.6 billion valuation based upon their latest financing.

Yet while technology-based providers are seeing escalating valuations, valuations and M&A activity for pure services firms are conversely softening. This is because tech automation is finally catching up to this space. Traditional eDiscovery services typically involve manual collection, followed by manual on-premise hardware-based processing, and finally manual upload to review. These inefficiencies extend projects by often weeks while dramatically increasing cost and risk with many manual data handoffs. However, the first half of the EDRM involving collection and processing are now far more automated than they were even a few years ago. For instance, the one aspect of eDiscovery tech that is actually seeing decreasing usage and revenues are standalone processing appliances. This is because these tools are dependent upon the efficient manual services model prior to ingestion and also post import.

However, the latest in eDiscovery collection technologies will now combine targeted collection with previously manual processing steps that are performed “on the fly” and in the background so that the data is automatically collected, processed and uploaded into a review platform such as Relativity in one fell swoop. Better yet, processing is now free with RelativityOne. The automation Relativity is engineering, including with their integration with X1, along with innovations by other review platforms, is rendering traditional eDiscovery processing tech obsolete, along with manual collection and processing services. The purchasers of eDiscovery services and software have clearly noticed and are demanding adaptation from vendors.  

So how can services firms adapt to the inevitable? Here are few strategies:

First, services firms should move upstream to focus on information governance and privacy consulting. The new generation of eDiscovery technology enables convergence with privacy (i.e. GDPR compliance) information security and many other information governance use cases. This convergence requires high-end strategic consulting to bring these processes together and operationalize them. This also enables services firms to develop direct and ongoing relationships with corporate law departments, IT and other key corporate stakeholders.

Second, data analytics consulting, which is already a prominent offering by many firms, is ripe for further expansion. This is because analytics for eDiscovery is becoming more advanced and user friendly, and thus is able to be applied across the eDiscovery workflow, including pre-collection analytics and information governance.

Third, services firms should find ways to develop or otherwise acquire their own differentiating tech or establish meaningful partnerships with tech platform providers. These partnerships should entail more than merely using the software, but the development of proprietary workflows or even technical integrations that enable unique service offerings.

At the end of the day, eDiscovery is a technical process that is subject to technology disruption just like any other technology-based services industry. eDiscovery services firms that not only adapt to but embrace this change as a strategic opportunity will be the ones who prosper the most.

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Filed under Best Practices, eDiscovery, eDiscovery & Compliance, GDPR, Information Governance, Preservation & Collection, Uncategorized

Pre-Collection Keyword Searches: Where Angels May Fear to Tread but Not Attorneys with the Right eDiscovery Software

By John Patzakis

One of the key cases involving the principles of proportionality under Federal Rule of Civil Procedure 26(b)(1), is McMaster v. Kohl’s Dep’t Stores, Inc., (E.D. Mich. July 24, (2020).  McMaster generally supports the application of a process that effectively applies proportionality on an operational basis through an iterative exercise to identify relevant custodians, their data sources, applicable date ranges, file types and agreed upon keywords. Such a targeted, automated and proportional collection process can be applied to collect only the data that is responsive to this specific criteria.

However, the main ESI dispute in McMaster was that the attorneys could not agree on a list of search terms and sought a ruling of the courts to decide on which search terms should be used. As noted by the Magistrate Judge in McMaster, “Here is another case in which the Court is called upon to decide whose competing list of search terms is better suited for the search of large amounts of electronically stored information”, citing United States v. O’Keefe, 537 F. Supp. 2d 14, 23–24 (D.D.C. 2008), which stated: “for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.”  Judge Whalen stated: “I, for one, have no interest in going where angels fear to tread. Therefore, if the parties cannot agree on appropriately limited search terms, they will share the cost of retaining an expert to assist them. If they still cannot agree, then Plaintiff may renew his motion regarding the search terms and will provide the Court with an expert report substantiating his position.”

The parties had been engaged in a Rule 26(f) exercise, which requires the parties’ counsel to “meet and confer” in advance of the pre-trial scheduling conference on key discovery matters, including the preservation, disclosure and exchange of potentially relevant electronically stored information (ESI). A very good authority on the Rule 26(f) eDiscovery conference is the “Suggested Protocol for Discovery of Electronically Stored Information,” provided by then Magistrate Judge Paul W. Grimm and his joint bar-court committee. Under Section 8 of the Model Protocol, the topics to be discussed at the Rule 26(f) conference include: “Search methodologies for retrieving or reviewing ESI such as identification of the systems to be searched;” “the use of key word searches, with an agreement on the words or terms to be searched;” “limitations on the time frame of ESI to be searched;” and “limitations on the fields or document types to be searched.”

Kelly Twigger, one of the best and brightest eDiscovery attorneys in the field in my opinion, commented in a recent webinar that eDiscovery collection capabilities that enable an iterative search and collection process in place would allow her to make more much informed decisions on keyword strategies. Twigger noted that software that provides keyword hits and other analytics on custodian laptops, fileservers and other network and cloud sources prior to collection, would enable her “to be able to define and agree upon the right search terms” with the requesting party. Twigger pointed out that while attorneys and judges rightfully avoid “where angels fear to tread” — agreeing on keywords without any visibility into the data — that concern can be alleviated when the right processes and technology are used.  

And such technology is important, because optimizing the process of developing keyword searches is no easy task. The typical approach of blindly brainstorming a list of terms that may be relevant and running the search on a dataset to be reviewed results in a wide range of inefficiencies. Negotiations over proper usage of search terms may become onerous and contentious. Judges are often tasked with making determinations regarding the aptness of the methodology, and, as we see in McMaster, are very reluctant to do so. Thus, the use of outside expertise and leveraging indexing in place technology is beneficial in building an effective and comprehensive pre-collection search term strategy and enabling you to tread where angels fear to.

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