Hi, I’m Doug Austin and I’m the VP of Products and Services with CloudNine. I’m also the Editor of the eDiscovery Daily blog, which (oddly enough) is a daily blog about eDiscovery. I’m delighted to be providing this guest blog post to our good friends and Kansas City partners at Complete Legal.
We have been partners with Complete Legal for several years and have worked with co-founders Jeff Dreiling and Eric Kelting for several years before that. In this era of automation in eDiscovery, you might think that the need for eDiscovery services is dwindling, but nothing could be further from the truth – the need to partner with an experienced eDiscovery services provider to ensure a successful outcome to your case is more important than ever.
But, how do you pick the best provider for your firm and how do you leverage the provider relationship to maximize your chances for success? Here are a few trends and best practices to consider to leverage your eDiscovery services provider to meet today’s challenges.
The Demand for eDiscovery Services is as Strong as Ever
I mentioned that, despite automation trends, eDiscovery services are as important than ever to firms and organizations involved in litigations, investigations and/or audits. Don’t believe me? Consider the latest eDiscovery Market Size Mashup provided by Rob Robinson in his excellent Complex Discovery blog. According to that compilation of various market estimates, the eDiscovery Services market in 2018 was $7.09 billion worldwide, while the eDiscovery Software market was $3.02 billion worldwide in 2018. That’s about a 70%-30% split for services. And, both portions of the market are growing at roughly the same rate:
- eDiscovery Services are expected to grow at an estimated 13.03% Compound Annual Growth Rate (CAGR) per year to $13.08 billion per year in 2023,
- eDiscovery Software is expected to grow at an estimated 13.23% CAGR per year to $5.62 billion in 2023.
So, even in this world of increased automation, law firms and other organizations still prefer to work with trusted providers (often locally) to deliver services to keep their cases on track. That’s why CloudNine has such a strong emphasis on our channel market with service providers throughout the US and beyond and why we partner with providers like Complete Legal as they use our software to assist their clients every day.
Here’s Why YOU Need a Provider
Do you understand what hashing is used for? Or why a file’s extension doesn’t always represent the type of file it actually is? Do you understand the difference between system metadata and application metadata? Or how to recover deleted ESI from a device? Do you know how to perform a statistical sample to validate results that is likely to be court approved? Can you fix an error in a Concordance .DAT or .OPT load file? Are you aware of the pros and cons of native production and how to address natively produced documents downstream in depositions and at trial?
If you can answer all of those questions (and numerous others I didn’t ask here), great. Most attorneys can’t, which is why they need experts that can. eDiscovery service providers deal with these types of challenges day in and day out, so that attorneys can do what they do best – focus on legal issues. That doesn’t mean you don’t have an ethical duty to understand the “benefits and risks associated with relevant technology”. You do, according to Comment 8 to Model Rule 1.1 of the American Bar Association’s Model Rules of Professional Conduct. And, with 36 states having adopted that Model Rule, chances are your state has adopted it too.
But, there’s a difference between that level of understanding and being an expert. In 2015, the State Bar of California adopted formal opinion No. 2015-193 regarding an attorney’s ethical duties regarding eDiscovery, which states that:
“An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.”
I don’t know too many attorneys out there who want to turn away clients because they lack knowledge in eDiscovery, but many (if not most) attorneys lack many of the basic concepts regarding eDiscovery, much less possess knowledge of advanced eDiscovery concepts. That leaves option #2, associating with technical consultants, as the logical answer, so that means vetting and selecting an eDiscovery provider that can support your needs in this area.
By the way, do you know what can happen if you don’t have that knowledge and don’t select the right provider? It can be as bad as this case where an attorney inadvertently produced client confidential personal information on thousands of the most wealthy investors in her client’s portfolio. And, that disclosure was covered by The New York Times. Selecting the right provider and establishing a partnership with that provider can keep this nightmare from happening to you.
Not Just Experience, But the Right Experience
When selecting a provider that’s right for you, I’m sure I don’t have to tell you that you want to select a provider with years of experience. And, that you want to get references from some of their clients. Those are no brainers.
But, are you selecting a provider with the right experience? Not all eDiscovery is the same. Many providers out there have years of experience working with large corporate defendants in litigation and supporting them in the phases of the EDRM model workflow through production of their ESI to opposing parties. But, the EDRM model isn’t really designed for plaintiffs in asymmetrical cases, where they are the receiving party of most of the ESI in the case. The goals for plaintiffs in these cases are considerably different from the typical large corporate defendant – their focus is much more about requesting and receiving relevant ESI in the most useful format and finding the evidence within that ESI quickly. And, it’s important that the eDiscovery service provider understand those different goals and needs.
There are also differences for criminal cases, as these cases tend to rely more on data from sources like mobile and Internet of Things (IoT) devices. And there are differences for government cases, where government entities like the Federal Trade Commission or Department of Justice have specific protocols and requirements for everything from production formats to predictive coding. So, if it’s possible you will expect to handle plaintiffs, criminal or government entity cases, you want to ensure the provider you select has a wide range of eDiscovery experience, not just large corporate defense cases.
Get Your Geek Involved Early and Often
Once you’ve selected a provider, you need to get them involved as early in the case as possible. Here’s a case in point (no pun intended):
Years ago, I was brought into a case to assist a client after that client had already agreed upon several searches with opposing counsel. One search related to mining activities, so the attorney decided to use a wildcard of min* to retrieve variations like “mine”, “mines” and “mining”.
That one search retrieved over 300,000 files with hits.
Why? Because there are 269 words in the English language that begin with the letters “min”. Words like mink, mind, mint and minion were all being retrieved in this search for files related to “mining” because of the wildcard character. Don’t get wild with wildcards! That, and several other searches, were overbroad, so my client had to try to go back and negotiate revised scope on the searches with opposing counsel. Had they involved me earlier, before agreeing on terms, I could have tested these terms beforehand and saved the client a lot of issues by helping them propose terms that were properly scoped to begin with.
How early should you get your provider involved? Well, when a case is filed, several activities must be completed as soon as the first seven to ten days after filing to enable you to assess the scope of the case, where the key ESI is located and whether to proceed with the case or attempt to settle with opposing counsel. Those include:
- Create List of Key Employees Most Likely to have Documents Relevant to the Litigation: That involves tracking information such as name, title, email address, phone number, office location and where information for each is stored;
- Issue Litigation Hold Notice and Track Results: You want to issue ASAP and track compliance (you may already have had to do this before the case was filed if you had a reasonable expectation of litigation);
- Interview Key Employees and Department Representatives: You need to identify potential locations of responsive data, stop automated/routine destruction, etc.;
- Inventory Sources and Volume of Potentially Relevant Documents: Begin the first steps of Early Data Assessment to determine the scope of the litigation;
- Plan Data Collection Methodology: Including how the data collection will be managed (e.g., self-collected or managed by IT).
As you can imagine, an appropriate level of technical expertise is necessary to ensure these activities are managed appropriately, so, you want to get your provider involved as soon as possible to help ensure that they are – at the outset of a case if not sooner. And, involve that provider in key points during the case, such as the meet and confer where things like ESI protocols and scope and form of production are negotiated. In other words, get your geek involved early and often to help ensure a more successful outcome.
Provider, Not Vendor
By the way, have you noticed that I haven’t used the term “vendor” one time? Until now, that is. Personally, I hate the term “vendor” with regard to eDiscovery services as I think of a vendor as someone who sells hot dogs on the street corner. You walk up, you tell the hot dog vendor what you want and he provides it to you – he doesn’t suggest other options and he certainly doesn’t tell you what’s in the hot dog (and you probably wouldn’t want to know that anyway). He’s an order taker, plain and simple.
Conversely, if you go to a nice white tablecloth restaurant, you have a waiter or waitress who tells you what the chef’s specialties are, how they are prepared and gives you advice on what wine goes best with your meal. He or she checks in on you periodically to make sure that your needs are being met and that you’re happy with your service. Your waiter is essentially a project manager for your meal, taking upfront requirements and conducting status checks throughout to ensure the “project” (a wonderful dining experience) is staying on track. It’s a partnership between you and the waiter and you both have the same goal – to maximize your dining experience. When that happens, you both win – you get an excellent meal and the waiter probably maximized his (or her) tip for providing excellent service.
Working with an eDiscovery service provider is like a partnership. You should expect your provider to treat you like a partner that gets to know your needs, develops a clear understanding of the requirements up front and monitors status throughout to ensure a successful outcome. And, you should treat your provider like a partner as well, not like an order taker. Remember, the inadvertent disclosure I mentioned earlier? That provider acted more like an order taker, doing what the attorney instructed instead of working side by side with the attorney as a partner to manage the workflow and ensure that proper QC checks were being conducted. You may think you want the order taker, but you need the partner who is using their expertise to your advantage.
Familiarity Breeds Content
I know, I know, the saying is “familiarity breeds contempt”, but when it involves working with an eDiscovery service provider, it breeds “content”, or rather “contentment”. Let’s face it, when you have selected the right provider to meet your needs and have gotten used to working with them on one or more cases, it’s a good feeling to have developed a level of trust with that provider. Your workflow is unique to you and your firm and when you get to a point with a provider that they understand your workflow and can support and even improve it, that’s a beautiful partnership. I’ve had attorneys that I’ve worked with in the past reach out to me when they land with new firms because we have developed a workflow together that has worked for them. That familiarity and comfort level is worth more than saving a couple of dollars per GB or a few dollars per billable hour and that level of trust should be the ultimate goal you have for selecting and working with an eDiscovery service provider partner.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine or Complete Legal. This blog post is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. It should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.