The recent dramatic District Court order in Small v. University Medical Center highlights the importance of due diligence and care in preservation, collection and production of ESI and the extreme risks that arise when failures occur in preservation, collection and production. The decision details a host of discovery failures and omissions committed by the defendant including failing to preserve network shares, laptops and mobile devices utilized by the majority of relevant custodians.
The defendants in this Fair Labor Standards Act class action had received a preservation notice at the start of the action directed at both hard copy and electronically stored documents. Apparently, the defendant’s legal hold policy didn’t address electronic records in any way, because the testimony recounted in the decision demonstrates clearly that the hold notice was never put in front of the IT department until it was far too late.
The ownership of the devices and drives varied – some were corporate-owned devices, others were personal devices used for business purposes. Ownership, however, was ultimately irrelevant to the preservation obligation – defendant was held to be responsible for preservation of those personal devices, as it permitted employees to use them for business purposes.
The court found that the preservation failures irreparably prejudiced the plaintiffs, who as a result lacked vital responsive material such as various iterations of relevant corporate policies as well as text messages to and from key custodians. The failure to preserve these vital information sources was so egregious, the court held, as to merit sanctions…but not any old sanctions – this court actually entered a judgment in favor of the named plaintiffs as a result of the defendant’s discovery failures and abuses.
By any standard, entry of judgment is an extreme measure – in effect, this is a determination that the Defendant’s actions muddied the evidentiary waters so completely that a determination of the merits of the case was no longer necessary.
As extreme as this measure may be, its imposition is premised on the Defendant’s conduct. The emphasis on communication and cooperation that permeates recent discovery-related decisions is present here. “Counsel and parties” the court noted, “have duties to clearly communicate, cooperate in the discovery process, and undertake an adequate investigation of facts before making representations. These duties arise irrespective of whether relevant evidence is electronic or non-electronic.”
Moreover, the court added a wake-up call for attorneys and others involved with preservation and compliance, imposing a duty to fully understand the role of electronically stored information such that it may be properly preserved and produced. “Ignorance of technology,” said the court, “does not excuse counsel or clients from their duties to preserve and produce ESI.”
Insight on law and technology.
Tuesday, September 16, 2014
Monday, September 8, 2014
Preservation and Collection In The Evolving Data Landscape: Cloud, Mobile and BYOD
EDiscovery begins with preservation and collection. Errors and omissions in preserving and collecting data create the greatest risk of spoliation and sanctions than any others, because when data is missed at the source it may never be collected or, worse, it may disappear. If an adverse party, agency or court then identifies the collection gap later, the results can be disastrous.
When the eDiscovery industry began to evolve from the seeds of the litigation support industry which had provided processing for paper records, preservation and collection began, naturally, with PCs and servers. Virtually all electronic records would be found on a network resource or a user’s local PC. Fear of sanctions resulted in broad retention policies, which in turn gave rise to enormous data stores which then needed to be culled and processed for litigation.
The high cost of handling these data stores caused corporations to get serious about retention policies and litigation holds, in order to ensure that necessary data was preserved and junk wasn’t. This meant that collection efforts were carefully targeted so that only the data that was actually needed was harvested for processing and review. The common practice evolved – relevant custodians were identified, then their PC’s were imaged and network email was preserved. In most cases, that sufficed as an exemplary collection process.
Fast forward to 2014. Most of us still do use PC’s, and most corporations do still have networks and email servers, but those devices really aren’t where most of us live our electronic lives. Most of our activity takes place on our phones and our tablets. That’s where we email, where we text, and where we network. That’s where we take our photos and our notes and even our entertainment. On an average day, most of us use our phones far more than our desktops or laptops. Business communication occurs principally on our phones and only secondarily elsewhere.
In addition, the “cloud” has evolved into a leading data store and source, for both individuals and businesses. Most of us have a cloud-based email account and at least some documents and photos stored in the cloud. Business use of the cloud continues to evolve and grow and supplant traditional LAN-based storage models.
A key factor here, as well, is the growth of Bring Your Own Device (“BYOD”) policies, in which employers allow or even encourage employees to use their personal devices for business purposes. Those diverse devices then come to hold discoverable information subject to preservation and production obligations, making them targets for collection in the eDiscovery context.
These developments have indelibly altered the data landscape for eDiscovery. PC’s and servers are still relevant, but they’re not where the true action is. Any effective collection effort needs to target phones, tablets and relevant cloud-based resources in order to be complete and ensure that gaps won’t be revealed later, bringing the risk of sanctions, adverse inferences, and all the other consequences of incomplete production and compliance.
When the eDiscovery industry began to evolve from the seeds of the litigation support industry which had provided processing for paper records, preservation and collection began, naturally, with PCs and servers. Virtually all electronic records would be found on a network resource or a user’s local PC. Fear of sanctions resulted in broad retention policies, which in turn gave rise to enormous data stores which then needed to be culled and processed for litigation.
The high cost of handling these data stores caused corporations to get serious about retention policies and litigation holds, in order to ensure that necessary data was preserved and junk wasn’t. This meant that collection efforts were carefully targeted so that only the data that was actually needed was harvested for processing and review. The common practice evolved – relevant custodians were identified, then their PC’s were imaged and network email was preserved. In most cases, that sufficed as an exemplary collection process.
Fast forward to 2014. Most of us still do use PC’s, and most corporations do still have networks and email servers, but those devices really aren’t where most of us live our electronic lives. Most of our activity takes place on our phones and our tablets. That’s where we email, where we text, and where we network. That’s where we take our photos and our notes and even our entertainment. On an average day, most of us use our phones far more than our desktops or laptops. Business communication occurs principally on our phones and only secondarily elsewhere.
In addition, the “cloud” has evolved into a leading data store and source, for both individuals and businesses. Most of us have a cloud-based email account and at least some documents and photos stored in the cloud. Business use of the cloud continues to evolve and grow and supplant traditional LAN-based storage models.
A key factor here, as well, is the growth of Bring Your Own Device (“BYOD”) policies, in which employers allow or even encourage employees to use their personal devices for business purposes. Those diverse devices then come to hold discoverable information subject to preservation and production obligations, making them targets for collection in the eDiscovery context.
These developments have indelibly altered the data landscape for eDiscovery. PC’s and servers are still relevant, but they’re not where the true action is. Any effective collection effort needs to target phones, tablets and relevant cloud-based resources in order to be complete and ensure that gaps won’t be revealed later, bringing the risk of sanctions, adverse inferences, and all the other consequences of incomplete production and compliance.
Wednesday, September 3, 2014
Five Signs Your eDiscovery Project Is In Trouble
You've compared pricing and capabilities and selected a vendor. You've sent your initial set of data. You've had your initial kickoff call. Now you can sit back and relax, right?
Wrong. Now comes the time when you need to become particularly vigilant. EDiscovery projects can go sideways in an infinite number of ways. The infinite variety of data in the world renders it inevitable that eventually everyone will encounter something anomalous.
Even the best vendors do make mistakes, and your ability to identify them will help you address them in a timely way. Recognizing the warning signs is your most important tool for anticipating issues and problems. Look for these five harbingers of trouble and you'll know when to press for information and results so you can manage effectively.
1. Repetitive Questions. Any time your vendor asks you the same question more than once it's a bad sign. Someone hasn't properly memorialized your answer or they simply weren't listening in the first place. Either way, it should make the hair on the back of your neck stand up. When you find yourself saying the same things again and again, it's a good idea to ask for specific confirmation of all your specs and requests.
2. Slow Responses. When you ask a question you deserve a speedy response. Delayed responses suggest that your project manager is overworked or inattentive, neither of which is a good thing. What's worse, though, is the possibility that a simple question can't be answered quickly because something has gone wrong. Press for timely answers and informative responses.
3. Amorphous Timelines. Upon receipt of data, your vendor should be able to give you a fairly precise timeline for delivery. When the timeline is vague, or when it seems to shift and evolve as days go by, you may begin to assume that something is wrong. Ask for precise turnaround times and hold your vendor to them.
4. Missing Data. When data is delivered you should take care to review the reports, the source information and the document counts and sizes. Most vendors have audit processes in place to ensure that no data is "missed," but there are often manual processes at work in this stage. Conduct your own mini-audit to ensure you know that all your data has been properly processed and delivered.
5. Anomalous Hit Rates. Take time to examine hit reports and rates for every custodian. Request delivery reports in the form of a time plot showing the distribution of documents over your relevant time period. Compare hit rates for custodians to identify custodians or periods of time that may have been omitted or missed in collection, processing or filtering. Ask your vendor to explain anything that doesn't "look right" in those reports.
These five warning signs can serve as simple guideposts as your project gets underway. Above all else, remember that for customers there are no "stupid questions" - any concern of yours should be treated with courtesy and respect and should merit a helpful answer.
Wrong. Now comes the time when you need to become particularly vigilant. EDiscovery projects can go sideways in an infinite number of ways. The infinite variety of data in the world renders it inevitable that eventually everyone will encounter something anomalous.
Even the best vendors do make mistakes, and your ability to identify them will help you address them in a timely way. Recognizing the warning signs is your most important tool for anticipating issues and problems. Look for these five harbingers of trouble and you'll know when to press for information and results so you can manage effectively.
1. Repetitive Questions. Any time your vendor asks you the same question more than once it's a bad sign. Someone hasn't properly memorialized your answer or they simply weren't listening in the first place. Either way, it should make the hair on the back of your neck stand up. When you find yourself saying the same things again and again, it's a good idea to ask for specific confirmation of all your specs and requests.
2. Slow Responses. When you ask a question you deserve a speedy response. Delayed responses suggest that your project manager is overworked or inattentive, neither of which is a good thing. What's worse, though, is the possibility that a simple question can't be answered quickly because something has gone wrong. Press for timely answers and informative responses.
3. Amorphous Timelines. Upon receipt of data, your vendor should be able to give you a fairly precise timeline for delivery. When the timeline is vague, or when it seems to shift and evolve as days go by, you may begin to assume that something is wrong. Ask for precise turnaround times and hold your vendor to them.
4. Missing Data. When data is delivered you should take care to review the reports, the source information and the document counts and sizes. Most vendors have audit processes in place to ensure that no data is "missed," but there are often manual processes at work in this stage. Conduct your own mini-audit to ensure you know that all your data has been properly processed and delivered.
5. Anomalous Hit Rates. Take time to examine hit reports and rates for every custodian. Request delivery reports in the form of a time plot showing the distribution of documents over your relevant time period. Compare hit rates for custodians to identify custodians or periods of time that may have been omitted or missed in collection, processing or filtering. Ask your vendor to explain anything that doesn't "look right" in those reports.
These five warning signs can serve as simple guideposts as your project gets underway. Above all else, remember that for customers there are no "stupid questions" - any concern of yours should be treated with courtesy and respect and should merit a helpful answer.
Wednesday, August 27, 2014
Avoiding eDiscovery Sticker Shock: A Guide to Proactive Budget Management
Every eDiscovery project starts with a budget. That budget begins with an estimate of the amount of data to be collected. That estimated number is multiplied by the vendor’s filtering rate, and then an estimated cull rate is applied and the result is multiplied by the processing fee and the monthly hosting fee to come up with estimated costs. Then an estimated number of documents is divided by the estimated review rate to come up with an estimate of the attorney hours. In addition, estimates for other professional services as well as production costs need to be added.
If that strikes you as too many estimates and not enough certainties, you've grasped the root cause of the eDiscovery “sticker shock” that accompanies monthly invoices. EDiscovery isn't cheap, and its cost often comes as a surprise to consumers whose realities exceed their expectations.
Information, planning and critical thinking are essential to managing eDiscovery costs. A few simple steps before, during and after your project begins can reduce and control costs and avoid end-of-month headaches.
Comparison Shop. Begin by shopping a little. You should always shop for eDiscovery services before you need them. Keep in mind that vendors use different terminology and cost structures. Ask as many questions as you need to permit you to make a true comparison. Consider, too, that the lowest bidder may not always be your best choice. Find a comfortable balance of price and quality.
Obtain Enterprise Pricing. Most vendors offer better pricing with the promise of potential repeat business. You need not get locked into a single vendor relationship in order to get the best possible pricing. Develop a list of preferred vendors, and request pricing from suppliers for inclusion on that list. Most vendors will happily offer their best rates to get on that list.
Request Weekly Accruals. At the start of a live project of any kind, request a weekly report estimating current costs and comparing them to your budget. This will allow you to see potential areas of concern while you still have an opportunity to control them.
Collect and Process Selectively. Collect only data that you reasonably expect to need. Collection itself is a cost, but what happens to that data next is even more significant. Process only those parts of the collection that you are required to review and produce. Ask the vendor to eliminate non-data files, which can occupy 80% (or more) of your average hard drive.
Monitor Scope Creep. The biggest and most frequent source of eDiscovery cost overruns is scope expansion. When formulating your budget, always overestimate the data size. Then, as data is collected, carefully monitor the amount of data you’re sending to your vendor to be sure you’re not exceeding your expectation (or if you do, that you’re aware of it and can make appropriate adjustments to accommodate the additional cost.)
Anticipate Professional Services. Every vendor has some tasks for which they bill on an hourly basis. Request a list of those services and ask to be informed any time a billable task is requested. This allows you to actively manage these tasks and to make intelligent decisions about their value.
Monitor Hosting Size and Duration. At $20 per GB, the annual hosting cost for a half a terabyte case reaches $120,000. Take time to understand the elements that comprise your hosting size – it's not only the amount of data that you've processed. Tiff files add to your hosting footprint. Many vendors also charge for the cost of storing the database itself, and some also charge for offline storage of data you’re not even reviewing. In addition, make sure you’re retiring any data you no longer need. Explore the archiving options your vendor offers and take data offline as soon as it’s not needed for active review or preparation.
Watch Out for Data Anomalies. When your budget is based on assumptions and estimates, things can go awry if the data doesn't behave as you expected it to behave. If your budget assumes you’ll be able to filter out a certain amount of data via search terms, take notice of your hit rate. If it exceeds your expectations, you’ll end up with more data than you wanted. In addition, different data types can produce widely varying document counts. 1GB of data may produce as many as 10,000 documents for review or as little as 2,000. Watch those document counts to keep your review budget on track.
Manage Review Complexity. Unless you are paying for review at a “per document” rate, your budget is based on an assumption of an hourly review rate. If your review criteria are particularly complex, however, the pace of review will be slower and hourly costs will rise. Take care to tailor your budget to the expected complexity of the review and to limit the complexity of review to suit the budget.
There are inevitably some unpredictable elements to any eDiscovery project, and they do often bring unexpected costs. Taking an active, informed approach to eDiscovery project budgets can serve to minimize the impact of unexpected events and project changes.
If that strikes you as too many estimates and not enough certainties, you've grasped the root cause of the eDiscovery “sticker shock” that accompanies monthly invoices. EDiscovery isn't cheap, and its cost often comes as a surprise to consumers whose realities exceed their expectations.
Information, planning and critical thinking are essential to managing eDiscovery costs. A few simple steps before, during and after your project begins can reduce and control costs and avoid end-of-month headaches.
Comparison Shop. Begin by shopping a little. You should always shop for eDiscovery services before you need them. Keep in mind that vendors use different terminology and cost structures. Ask as many questions as you need to permit you to make a true comparison. Consider, too, that the lowest bidder may not always be your best choice. Find a comfortable balance of price and quality.
Obtain Enterprise Pricing. Most vendors offer better pricing with the promise of potential repeat business. You need not get locked into a single vendor relationship in order to get the best possible pricing. Develop a list of preferred vendors, and request pricing from suppliers for inclusion on that list. Most vendors will happily offer their best rates to get on that list.
Request Weekly Accruals. At the start of a live project of any kind, request a weekly report estimating current costs and comparing them to your budget. This will allow you to see potential areas of concern while you still have an opportunity to control them.
Collect and Process Selectively. Collect only data that you reasonably expect to need. Collection itself is a cost, but what happens to that data next is even more significant. Process only those parts of the collection that you are required to review and produce. Ask the vendor to eliminate non-data files, which can occupy 80% (or more) of your average hard drive.
Monitor Scope Creep. The biggest and most frequent source of eDiscovery cost overruns is scope expansion. When formulating your budget, always overestimate the data size. Then, as data is collected, carefully monitor the amount of data you’re sending to your vendor to be sure you’re not exceeding your expectation (or if you do, that you’re aware of it and can make appropriate adjustments to accommodate the additional cost.)
Anticipate Professional Services. Every vendor has some tasks for which they bill on an hourly basis. Request a list of those services and ask to be informed any time a billable task is requested. This allows you to actively manage these tasks and to make intelligent decisions about their value.
Monitor Hosting Size and Duration. At $20 per GB, the annual hosting cost for a half a terabyte case reaches $120,000. Take time to understand the elements that comprise your hosting size – it's not only the amount of data that you've processed. Tiff files add to your hosting footprint. Many vendors also charge for the cost of storing the database itself, and some also charge for offline storage of data you’re not even reviewing. In addition, make sure you’re retiring any data you no longer need. Explore the archiving options your vendor offers and take data offline as soon as it’s not needed for active review or preparation.
Watch Out for Data Anomalies. When your budget is based on assumptions and estimates, things can go awry if the data doesn't behave as you expected it to behave. If your budget assumes you’ll be able to filter out a certain amount of data via search terms, take notice of your hit rate. If it exceeds your expectations, you’ll end up with more data than you wanted. In addition, different data types can produce widely varying document counts. 1GB of data may produce as many as 10,000 documents for review or as little as 2,000. Watch those document counts to keep your review budget on track.
Manage Review Complexity. Unless you are paying for review at a “per document” rate, your budget is based on an assumption of an hourly review rate. If your review criteria are particularly complex, however, the pace of review will be slower and hourly costs will rise. Take care to tailor your budget to the expected complexity of the review and to limit the complexity of review to suit the budget.
There are inevitably some unpredictable elements to any eDiscovery project, and they do often bring unexpected costs. Taking an active, informed approach to eDiscovery project budgets can serve to minimize the impact of unexpected events and project changes.
Monday, August 25, 2014
Balancing Work Product, Predictive Coding, Cooperation and Transparency in Bridgestone and Progressive
A pair of recent decisions emphasize the need for transparency, cooperation and openness in eDiscovery in general, and in particular where predictive coding is used. These cases are in conflict with the expectation that predictive coding may be an element of eDiscovery strategy, which is part of an overall case strategy which merits privilege protection under the work product doctrine.
In May, in Progressive Casualty v. Delaney the District of Nevada rejected Progressive's application to amend the operative ESI order to permit it to make use of predictive coding. The court made made particular mention of the fact that Progressive was "unwilling to engage in the type of cooperation and transparency that is needed for a predictive coding protocol to be accepted by the court or opposing counsel as a reasonable method to search for and produce responsive ESI."
In July, the Tennessee District court in Bridgestone Americas v. IBM permitted Bridgestone to utilize predictive coding on a set of documents already culled via search terms, noting however that "openness and transparency in what Plaintiff is doing will be of critical importance..."
These cases draw on the spirit of the Rule 26(f) conference, which is designed to promote cooperation among parties in eDiscovery. Courts have long expected litigants to approach discovery obligations in the spirit of cooperation and to develop collection, review and production strategies for discussion in the meet-and-confer. These recent predictive coding cases extend the idea of cooperation and create an expectation of disclosure and openness that cuts close to strategic areas that many litigants have long considered to be protected work product.
Litigants have often claimed that eDiscovery strategies including search terms and methodologies are protected by the work product privilege. EDiscovery plans including strategies and techniques for culling data reflect the mental impressions of the attorney, the argument goes. Requiring disclosure of those strategies and tactics would expose those mental impressions and inhibit zealous representation.
Predictive coding arguably falls into the same bucket as search terms and other elements of eDiscovery strategy. Counsel's decision to use predictive coding can be viewed as a strategic decision reflecting overall discovery strategy and intimate knowledge of the landscape of the collection gathered via witness and custodian interviews. The predictive coding process itself almost inevitably involves counsel's mental impressions of seed or training documents as well as decisions about what sorts of documents might or might not be responsive.
The argument for such work product protection is supported by the pre-eDiscovery case Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985) in which the Third Circuit held that "the selection and compilation of documents by counsel...in preparation for pretrial discovery falls within the highly protected category of opinion work product."
Of course, a number of courts have rejected the claim that Sporck mandates protection of search terms. See, for example, Romero v. Allstate Ins. Co., 271 F.R.D. 96 (E.D. Pa. 2010) (search terms related to facts and did not fall under the protection of the work-product doctrine); FormFactor, Inc. v. Micro-Probe Inc., 2012 U.S. Dist. LEXIS 62233 (N.D. Cal. May 3, 2012) (rejecting plaintiff’s argument that disclosure of search terms would reveal privileged information); Apple Inc. v. Samsung Electronics Co., LTD., 2013 U.S. Dist. LEXIS 67085 (N.D. Cal. May 9, 2013) (third-party ordered to produce the search terms it used in responding to request for production, citing traditional principles of transparency and collaboration in discovery).
The recent decisions in Bridgestone and Progressive Casualty suggest that courts place predictive coding in the same category as search terms and other "fact work product" not entitled to privilege protection. These cases reflect a trend to require further transparency in the pursuit of cooperation, and the drive to openness has extended to the use of predictive coding.
Litigants who expect to make strategic use of predictive coding without disclosure may find themselves the subject of judicial disapproval, not because courts don't approve of the use of predictive coding technology but because they expect litigants to be transparent about its use. At a minimum these cases suggest that fine distinctions will need to be made between the strategic aspects of predictive coding's use and the purely factual ones.
In May, in Progressive Casualty v. Delaney the District of Nevada rejected Progressive's application to amend the operative ESI order to permit it to make use of predictive coding. The court made made particular mention of the fact that Progressive was "unwilling to engage in the type of cooperation and transparency that is needed for a predictive coding protocol to be accepted by the court or opposing counsel as a reasonable method to search for and produce responsive ESI."
In July, the Tennessee District court in Bridgestone Americas v. IBM permitted Bridgestone to utilize predictive coding on a set of documents already culled via search terms, noting however that "openness and transparency in what Plaintiff is doing will be of critical importance..."
These cases draw on the spirit of the Rule 26(f) conference, which is designed to promote cooperation among parties in eDiscovery. Courts have long expected litigants to approach discovery obligations in the spirit of cooperation and to develop collection, review and production strategies for discussion in the meet-and-confer. These recent predictive coding cases extend the idea of cooperation and create an expectation of disclosure and openness that cuts close to strategic areas that many litigants have long considered to be protected work product.
Litigants have often claimed that eDiscovery strategies including search terms and methodologies are protected by the work product privilege. EDiscovery plans including strategies and techniques for culling data reflect the mental impressions of the attorney, the argument goes. Requiring disclosure of those strategies and tactics would expose those mental impressions and inhibit zealous representation.
Predictive coding arguably falls into the same bucket as search terms and other elements of eDiscovery strategy. Counsel's decision to use predictive coding can be viewed as a strategic decision reflecting overall discovery strategy and intimate knowledge of the landscape of the collection gathered via witness and custodian interviews. The predictive coding process itself almost inevitably involves counsel's mental impressions of seed or training documents as well as decisions about what sorts of documents might or might not be responsive.
The argument for such work product protection is supported by the pre-eDiscovery case Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985) in which the Third Circuit held that "the selection and compilation of documents by counsel...in preparation for pretrial discovery falls within the highly protected category of opinion work product."
Of course, a number of courts have rejected the claim that Sporck mandates protection of search terms. See, for example, Romero v. Allstate Ins. Co., 271 F.R.D. 96 (E.D. Pa. 2010) (search terms related to facts and did not fall under the protection of the work-product doctrine); FormFactor, Inc. v. Micro-Probe Inc., 2012 U.S. Dist. LEXIS 62233 (N.D. Cal. May 3, 2012) (rejecting plaintiff’s argument that disclosure of search terms would reveal privileged information); Apple Inc. v. Samsung Electronics Co., LTD., 2013 U.S. Dist. LEXIS 67085 (N.D. Cal. May 9, 2013) (third-party ordered to produce the search terms it used in responding to request for production, citing traditional principles of transparency and collaboration in discovery).
The recent decisions in Bridgestone and Progressive Casualty suggest that courts place predictive coding in the same category as search terms and other "fact work product" not entitled to privilege protection. These cases reflect a trend to require further transparency in the pursuit of cooperation, and the drive to openness has extended to the use of predictive coding.
Litigants who expect to make strategic use of predictive coding without disclosure may find themselves the subject of judicial disapproval, not because courts don't approve of the use of predictive coding technology but because they expect litigants to be transparent about its use. At a minimum these cases suggest that fine distinctions will need to be made between the strategic aspects of predictive coding's use and the purely factual ones.
Thursday, August 21, 2014
Clearing the Jungle: A Buyers' Guide for eDiscovery Consumers
It's a jungle out there, and the eat or be eaten mentality permeates the eDiscovery industry. As the typical size of eDiscovery projects has grown, price compression has eaten away at profits, and competition for new sales is fierce and often furious. There are still big clients and big projects out there, but the budgets are tighter and the consumers are smarter and more focused on the bottom line.
At the same time, eDiscovery is not easy to sell. The most technically savvy individuals are, more often than not, reporting to some higher-level decision makers. The benefits of particular software, services or security can be difficult to express in economic terms, which means that contracts are most often awarded to the supplier who offers the lowest price. It takes a special mix of relationship cultivation, personal connection and technical "fit" to successfully sell these products.
In any sales pitch, some puffery is to be expected. Salespeople are rarely, if ever, noted for their brutal honesty. We all expect a little smoke and mirrors, a bit of misdirection in a sales pitch. It's part of the game, and everyone knows to keep their antennae up and ready when anyone is selling.
Consumers of eDiscovery should be particularly vigilant when receiving sales pitches, given the state of the market and the potential risk. Critical thinking by eDiscovery buyers should include attention to key areas for scrutiny and items of preparation.
Know your scope. The size of your project affects budget, obviously, but there also needs to be a connection to the vendor's capacity and the project timeline. It is crucial to be as precise as you possibly can about the amount of data you expect to process, and to ask vendors to provide high/low estimates based on a potential range of collection sizes. The most common cause of budget excess and extended timelines in eDiscovery is a change in scope. Your best tool for avoiding these unpleasant surprises is a solid estimate of your project's size.
Prepare your questions. As you develop your requirements, frame them into written questions. Form those questions into a checklist and ask vendors to answer those specific questions. Questions about file types, production specs, turnaround time, and specific review features should all be submitted in writing and answers should be collected for your review and reference.
Look out for vagueness. Most vendors will want to leave themselves some wiggle room around capacity, deadlines and budget. Particular attention should be paid to answers which are vague or loaded with caveats. Don't assume that things will simply work out even if the answers don't fill you with confidence. Press for specifics and examine those caveats until you know exactly what you should expect.
Red flag buzzwords. Common words and phrases will appear in RFP responses, proposals and presentations. Take note of them and press at them a bit to ensure you fully understand their contextual meaning. Some terminology to note includes:
Kick the tires. Do more than listen to a sales presentation - a hands-on approach will be far more revealing and informative.
Make side by side comparisons. Create a chart summarizing the key features, costs and benefits of all your potential vendors. This process will enable you to make informed decisions about who is best equipped to provide the services you need within your budget.
Critical thinking should be applied at every stage of the eDiscovery sales cycle. Informed consumers get the benefit of their own knowledge and avoid the unhappy surprises that can lurk in eDiscovery services.
At the same time, eDiscovery is not easy to sell. The most technically savvy individuals are, more often than not, reporting to some higher-level decision makers. The benefits of particular software, services or security can be difficult to express in economic terms, which means that contracts are most often awarded to the supplier who offers the lowest price. It takes a special mix of relationship cultivation, personal connection and technical "fit" to successfully sell these products.
In any sales pitch, some puffery is to be expected. Salespeople are rarely, if ever, noted for their brutal honesty. We all expect a little smoke and mirrors, a bit of misdirection in a sales pitch. It's part of the game, and everyone knows to keep their antennae up and ready when anyone is selling.
Consumers of eDiscovery should be particularly vigilant when receiving sales pitches, given the state of the market and the potential risk. Critical thinking by eDiscovery buyers should include attention to key areas for scrutiny and items of preparation.
Know your scope. The size of your project affects budget, obviously, but there also needs to be a connection to the vendor's capacity and the project timeline. It is crucial to be as precise as you possibly can about the amount of data you expect to process, and to ask vendors to provide high/low estimates based on a potential range of collection sizes. The most common cause of budget excess and extended timelines in eDiscovery is a change in scope. Your best tool for avoiding these unpleasant surprises is a solid estimate of your project's size.
Prepare your questions. As you develop your requirements, frame them into written questions. Form those questions into a checklist and ask vendors to answer those specific questions. Questions about file types, production specs, turnaround time, and specific review features should all be submitted in writing and answers should be collected for your review and reference.
Look out for vagueness. Most vendors will want to leave themselves some wiggle room around capacity, deadlines and budget. Particular attention should be paid to answers which are vague or loaded with caveats. Don't assume that things will simply work out even if the answers don't fill you with confidence. Press for specifics and examine those caveats until you know exactly what you should expect.
Red flag buzzwords. Common words and phrases will appear in RFP responses, proposals and presentations. Take note of them and press at them a bit to ensure you fully understand their contextual meaning. Some terminology to note includes:
- "Scalable" - this term implies flexibility but may also signify that capacity will need to be ramped up to accommodate your project requirements.
- "Technology agnostic" - ideally this phrase signifies that the vendor will utilize whatever software is best suited to your project. Few vendors, however, are that open-minded. Typically this phrase suggests that the vendor offers two or three options and they'll help you choose one of them.
- "Integrated" - this word sounds great but as a practical matter means very little. Ask how integration works for the end user and what benefits it would actually provide.
- "100% quality control" - this impressive phrase is an operational impossibility. No one can afford to QC everything. Press for the real meaning and context of the vendor's quality control processes and procedures.
Kick the tires. Do more than listen to a sales presentation - a hands-on approach will be far more revealing and informative.
- Try the software. Most vendors will happily allow you to log into a demo database for a test drive. Trying it "live" will tell you far more than a canned demonstration.
- Meet operations and client service leaders. Ask to meet or speak to a high level operations resource and your client service contact. Getting to know those folks in advance will provide a great sense of what sort of service you can expect to receive.
- Ask for process documentation. Ask for workflow diagrams and process documentation from prospective vendors. Any solid vendor will be able to provide these relatively quickly. If they can't, it suggests that documentation may be lacking.
Make side by side comparisons. Create a chart summarizing the key features, costs and benefits of all your potential vendors. This process will enable you to make informed decisions about who is best equipped to provide the services you need within your budget.
Critical thinking should be applied at every stage of the eDiscovery sales cycle. Informed consumers get the benefit of their own knowledge and avoid the unhappy surprises that can lurk in eDiscovery services.
Wednesday, August 20, 2014
Sales Engineers: Key Links in the eDiscovery Chain
In the highly competitive eDiscovery market, there is no shortage of salespeople who will tell you almost anything they think you want to hear. Price compression has created a fairly level economic playing field among vendors, but the nature of the business defies apples-to-apples comparisons among suppliers. While many of the services that are offered may be uniform, there are differences in pricing structure, terminology, capacity and applications that can be difficult to navigate from vendor to vendor.
Good eDiscovery salespeople have sufficient technical knowledge to speak intelligently about products and services, but salespeople are first and foremost skilled at selling - at making potential clients comfortable with the products and services they offer, at building connections and relationships, and at presenting high level options with polish and persuasion.
Even the best salespeople won't get too deeply mired in technical details, which are most effectively handled by others. The worst salespeople will promise you the moon (and the stars, and the sun) without much regard to whether it can actually be delivered. Of course, this creates some awkward moments when the project is handed off to the operations team, who are then left to figure out how to meet those expectations.
The best eDiscovery vendors strive to bridge (or eliminate) that sales-operations gap, and this is where the sales engineer becomes vital. The role of the sales engineer is to become involved early in the sales cycle to manage the technical aspects of the sales process. The sales engineer works with the traditional salespeople to provide technical advice, to facilitate smart product choices, and to ensure that what has been sold can, in fact, be delivered.
The sales engineer bridges the gap between business and technical requirements to provide a seamless hand-off to operations. The sales engineer will identify technical issues in advance of project commencement, will advise on potential solutions to expected technical or operational hurdles, and will ensure that the operations team understands the requirements and expectations prior to project execution.
Without the involvement of a sales engineer (or comparable, technically-equipped consultant) there is a significant risk of a project being oversold or, worse, mismatched with the technology and capacity of the vendor. This can result in delays, budget overruns, frustration and, worst of all, an inability to ultimately execute projects as expected or required.
Informed, savvy eDiscovery consumers can and should ask for a sales engineer's involvement early in the sales process. The presence of a technical resource who can speak effectively to capacity and product features, who can effectively identify potential unexpected costs, and who can facilitate development of customized solutions where they are needed will reduce risk and contribute greatly to satisfactory project execution and results.
Good eDiscovery salespeople have sufficient technical knowledge to speak intelligently about products and services, but salespeople are first and foremost skilled at selling - at making potential clients comfortable with the products and services they offer, at building connections and relationships, and at presenting high level options with polish and persuasion.
Even the best salespeople won't get too deeply mired in technical details, which are most effectively handled by others. The worst salespeople will promise you the moon (and the stars, and the sun) without much regard to whether it can actually be delivered. Of course, this creates some awkward moments when the project is handed off to the operations team, who are then left to figure out how to meet those expectations.
The best eDiscovery vendors strive to bridge (or eliminate) that sales-operations gap, and this is where the sales engineer becomes vital. The role of the sales engineer is to become involved early in the sales cycle to manage the technical aspects of the sales process. The sales engineer works with the traditional salespeople to provide technical advice, to facilitate smart product choices, and to ensure that what has been sold can, in fact, be delivered.
The sales engineer bridges the gap between business and technical requirements to provide a seamless hand-off to operations. The sales engineer will identify technical issues in advance of project commencement, will advise on potential solutions to expected technical or operational hurdles, and will ensure that the operations team understands the requirements and expectations prior to project execution.
Without the involvement of a sales engineer (or comparable, technically-equipped consultant) there is a significant risk of a project being oversold or, worse, mismatched with the technology and capacity of the vendor. This can result in delays, budget overruns, frustration and, worst of all, an inability to ultimately execute projects as expected or required.
Informed, savvy eDiscovery consumers can and should ask for a sales engineer's involvement early in the sales process. The presence of a technical resource who can speak effectively to capacity and product features, who can effectively identify potential unexpected costs, and who can facilitate development of customized solutions where they are needed will reduce risk and contribute greatly to satisfactory project execution and results.
Thursday, August 14, 2014
Service Excellence: A Guide To Superior eDiscovery Project Management
Most eDiscovery providers can deliver the basic components of service. They have the software and hardware that allows them to process your data and host it in a proprietary or off-the-shelf application. Some vendors can process your data more quickly than others, some hosting platforms have nicer bells and whistles than others, but every vendor should be able to provide those basics.
What truly distinguishes an average supplier from an exceptional one in the world of eDiscovery is client service and project management. The inevitable bumps and curves in the road of a project are profoundly frustrating when communication is poor. With excellent, assertive and timely communication those bumps and curves can be anticipated and tolerated.
Perfection may be a goal in eDiscovery, but it’s rarely a reality. EDiscovery consumers need and deserve strong project management and communication – the stakes in big litigation are high and the costs of errors can grow when communication is late, unclear or inaccurate.
Excellent client service and project management in eDiscovery requires attention to detail as well as an understanding of the “big picture” goals. An approach that comprehends both the forest and the trees is required. Excellent project management should embody certain key qualities, and superior service is always marked by the presence of these characteristics.
Responsive. Your project manager should never let an email or a call go more than 30 minutes without a response during business hours. We all expect attentiveness and responsiveness in restaurants, and supermarkets, at the gym or the dry cleaners, and everywhere we purchase goods or services. Why would a consumer of hundreds of thousands of dollars in eDiscovery services expect anything less? Responsiveness is the first priority for any eDiscovery project manager.
Honest. Your project manager should be truthful about capacity and turnaround. More importantly, he or she should keep you fully informed of any issues or situations that have arisen that can affect your compliance or production in any way. Good communication eschews vagueness and states facts clearly without avoiding or obscuring difficult messages and truths.
Inquisitive. Your project manager should never be shy about asking questions. At the most basic level this means asking fundamental questions about requirements, deadlines, specifications and budgets. At its highest level this means asking the right questions to understand the ultimate business purpose behind a request, so that the project manager may help the client find the most efficient solution. A project manager who is afraid to ask questions will never be an effective advocate for the client because he or she won’t fully understand the client’s needs.
Organized. Your project manager should understand your goals and anticipate the requirements. Communication should reflect that overall organization and sense of structure. At the start of your project, you should be asked for specs and requirements up front – you should never have to repeat yourself, nor should you field multiple requests for basic information. An organized project manager knows exactly what they need to know and asks the right questions to get the information. In addition, when a good project manager is responding with information or a report, that communication should be clearly organized.
Timely. Responses and deliverables should come exactly when promised if not sooner. If a deadline can’t be met, your project manager should inform you just as soon as he or she is able to do so. If a response is promised by a certain time, the client should never have to ask for an update at that time. Nothing makes me cringe more than a message from a client at 4:10 PM asking for the 4:00 update they were expecting. No client should have to chase their project manager for a timely response.
Concise. Communication should always be clear and simple. When communicating with clients, every project manager should observe the “three sentence” rule – you can never rely on anyone reading more than three sentences of any email. I was once prone to issue long, technical explanations to clients, only to find that they didn’t seem to have understood the details. I instituted a personal rule that any message that couldn’t be said in three sentences or less needed to be communicated in multiple emails. The increase in comprehension was immediate.
Flexible. Rigidity has no place in big eDiscovery projects. Deadlines, goals and strategies change constantly. A good project manager will always try to find a way to accommodate your needs, will always attempt to find creative solutions, and will welcome the opportunity to find an innovative solution for your needs.
Your eDiscovery budget should buy more than basic, adequate service. There are dozens of vendors who can provide the fundamental eDiscovery services. Look for these hallmarks of excellent project management to ensure you’re getting the service you deserve.
What truly distinguishes an average supplier from an exceptional one in the world of eDiscovery is client service and project management. The inevitable bumps and curves in the road of a project are profoundly frustrating when communication is poor. With excellent, assertive and timely communication those bumps and curves can be anticipated and tolerated.
Perfection may be a goal in eDiscovery, but it’s rarely a reality. EDiscovery consumers need and deserve strong project management and communication – the stakes in big litigation are high and the costs of errors can grow when communication is late, unclear or inaccurate.
Excellent client service and project management in eDiscovery requires attention to detail as well as an understanding of the “big picture” goals. An approach that comprehends both the forest and the trees is required. Excellent project management should embody certain key qualities, and superior service is always marked by the presence of these characteristics.
Responsive. Your project manager should never let an email or a call go more than 30 minutes without a response during business hours. We all expect attentiveness and responsiveness in restaurants, and supermarkets, at the gym or the dry cleaners, and everywhere we purchase goods or services. Why would a consumer of hundreds of thousands of dollars in eDiscovery services expect anything less? Responsiveness is the first priority for any eDiscovery project manager.
Honest. Your project manager should be truthful about capacity and turnaround. More importantly, he or she should keep you fully informed of any issues or situations that have arisen that can affect your compliance or production in any way. Good communication eschews vagueness and states facts clearly without avoiding or obscuring difficult messages and truths.
Inquisitive. Your project manager should never be shy about asking questions. At the most basic level this means asking fundamental questions about requirements, deadlines, specifications and budgets. At its highest level this means asking the right questions to understand the ultimate business purpose behind a request, so that the project manager may help the client find the most efficient solution. A project manager who is afraid to ask questions will never be an effective advocate for the client because he or she won’t fully understand the client’s needs.
Organized. Your project manager should understand your goals and anticipate the requirements. Communication should reflect that overall organization and sense of structure. At the start of your project, you should be asked for specs and requirements up front – you should never have to repeat yourself, nor should you field multiple requests for basic information. An organized project manager knows exactly what they need to know and asks the right questions to get the information. In addition, when a good project manager is responding with information or a report, that communication should be clearly organized.
Timely. Responses and deliverables should come exactly when promised if not sooner. If a deadline can’t be met, your project manager should inform you just as soon as he or she is able to do so. If a response is promised by a certain time, the client should never have to ask for an update at that time. Nothing makes me cringe more than a message from a client at 4:10 PM asking for the 4:00 update they were expecting. No client should have to chase their project manager for a timely response.
Concise. Communication should always be clear and simple. When communicating with clients, every project manager should observe the “three sentence” rule – you can never rely on anyone reading more than three sentences of any email. I was once prone to issue long, technical explanations to clients, only to find that they didn’t seem to have understood the details. I instituted a personal rule that any message that couldn’t be said in three sentences or less needed to be communicated in multiple emails. The increase in comprehension was immediate.
Flexible. Rigidity has no place in big eDiscovery projects. Deadlines, goals and strategies change constantly. A good project manager will always try to find a way to accommodate your needs, will always attempt to find creative solutions, and will welcome the opportunity to find an innovative solution for your needs.
Your eDiscovery budget should buy more than basic, adequate service. There are dozens of vendors who can provide the fundamental eDiscovery services. Look for these hallmarks of excellent project management to ensure you’re getting the service you deserve.
Tuesday, August 5, 2014
Decoding eDiscovery Doublespeak
I once had a boss who was fond of calling the particulars of eDiscovery processing and production the "sausage factory," a tip of the hat to the old adage that "Laws are like sausages, it is better not to see them being made."
Any business in a service industry seeks to create the appearance that things are going smoothly. In the same way the waiter at a restaurant will never tell you that your entrée has been delayed because of a small fire in the kitchen, your eDiscovery vendor will seek to shield you from the ugly side of the sausage factory.
Most reputable vendors won’t lie to their clients. They will, however, engage in creative truth-telling, giving just enough information to keep you apprised overall without getting so specific that you see the inner workings of the operation. Sticking close to the truth while leaving just enough ambiguity to give some wiggle room is the usual modus operandi. This is generally accomplished through the use and deployment of select doublespeak phrases designed to sound just technical enough to persuade you they mean something while conveying absolutely nothing specific.
In our ongoing effort to debunk the mysteries of eDiscovery, here are a few choice examples of vendor doublespeak.
“Contention in the environment.” This ambiguous gem is used to explain delays brought about by causes your vendor would prefer not to disclose. When you hear this phrase, alarm bells should sound, as it means something bad has happened but they’re not ready to tell you what.
Example: “We were not able to make as much progress as expected with this data due to contention in our environment.”
Translation: “We can’t meet the deadline we promised to meet. This is due to (1) the fact that requirements exceed our capacity, or (2) an internal problem like a storage failure or software issue but we are never ever going to tell you that.”
“Data specific” / “Non-standard data.” When software chokes on your data for a reason that’s beyond the understanding of the developers, they explain that the problem is “data specific” or due to “non-standard data” which means they probably won’t work too hard to solve the issue, since it’s “your fault.”
Example: “These files, which are non-standard, can’t be processed. The issue is data-specific and does not affect any other files. Our developers are investigating the issue.”
Translation: “We have no idea why these files weren’t processed. We don’t know where else this problem may exist but we are guessing it’s limited to the files you noticed. A ticket has been opened with our development team which will languish in a queue for months before someone closes it because it’s become stale.”
“Analyst / operator error” Someone messed up and the vendor can’t blame it on anything else. This is typically followed by an assurance that additional Q.C. steps have been added to the process to ensure it never happens again.
Example: “An incorrect custodian value was applied to these documents due to analyst error. We have added a step to our Q.C. process to ensure this error doesn’t occur again.”
Translation: “An analyst made a mistake they really shouldn’t have been able to make in the first place. We have added another item in a checklist which is often ignored because we’re always rushing to keep up with deadlines.”
“Rolling deliveries.” Incremental data deliveries are typically designed to obscure an inability to achieve the throughput needed to deliver your data on time. Breaking the data up at least gives you something to work with so you don’t have downtime during which you wait and silently curse your vendor.
Example: “We have begun processing your 100 GB dataset and will start rolling deliveries on Monday.”
Translation: “We can’t get through your 100 GB in time for review to start, so we’ll begin dropping increments of data into the database for review.”
“Data density.” This meaningless phrase is used to explain any delay in indexing, regardless of the quality, quantity, or type of data involved. Any time indexing slows for any reason, it’s identified as a data problem and the cause is the “density” of the data, a quality which is impossible to measure, gauge or predict.
Example: “These documents have yet to be indexed due to the density of the data. We will continue to keep you updated on the progress of the indexing process.”
Translation: “Your documents are indexing very slowly. We don’t have an explanation of why the index is hung up, but when this has happened before it clears itself up magically, so we assume these documents are somehow ‘denser’ than others.”
“Final search sweep” / “Data audit.” These catchphrases appear when the vendor has suddenly found data that they should have found in the past. This may be due to an error or a lag in indexing, but that won’t matter to you when 50,000 new documents appear right before your discovery deadline.
Example: “Our standard data audit identified additional documents responsive to your search terms. These 34,000 documents are currently being batched for review.”
Translation: “We missed these documents. Here they are. Good luck. We will expect your request for a credit at the end of the month.”
Keep your eye out for these phrases or others like them – they reliably signify that things aren’t going as well as your vendor would like you to know, and the sooner you ferret out the whole truth the better your reality will be. At the same time, don't throw the baby out with the bathwater. eDiscovery is complex and the data can be unwieldy. While nothing should be taken at face value, this is not to say you should take your business elsewhere. Most vendors do have something of value to offer, it's up to you to make sure that's what they deliver.
Any business in a service industry seeks to create the appearance that things are going smoothly. In the same way the waiter at a restaurant will never tell you that your entrée has been delayed because of a small fire in the kitchen, your eDiscovery vendor will seek to shield you from the ugly side of the sausage factory.
Most reputable vendors won’t lie to their clients. They will, however, engage in creative truth-telling, giving just enough information to keep you apprised overall without getting so specific that you see the inner workings of the operation. Sticking close to the truth while leaving just enough ambiguity to give some wiggle room is the usual modus operandi. This is generally accomplished through the use and deployment of select doublespeak phrases designed to sound just technical enough to persuade you they mean something while conveying absolutely nothing specific.
In our ongoing effort to debunk the mysteries of eDiscovery, here are a few choice examples of vendor doublespeak.
“Contention in the environment.” This ambiguous gem is used to explain delays brought about by causes your vendor would prefer not to disclose. When you hear this phrase, alarm bells should sound, as it means something bad has happened but they’re not ready to tell you what.
Example: “We were not able to make as much progress as expected with this data due to contention in our environment.”
Translation: “We can’t meet the deadline we promised to meet. This is due to (1) the fact that requirements exceed our capacity, or (2) an internal problem like a storage failure or software issue but we are never ever going to tell you that.”
“Data specific” / “Non-standard data.” When software chokes on your data for a reason that’s beyond the understanding of the developers, they explain that the problem is “data specific” or due to “non-standard data” which means they probably won’t work too hard to solve the issue, since it’s “your fault.”
Example: “These files, which are non-standard, can’t be processed. The issue is data-specific and does not affect any other files. Our developers are investigating the issue.”
Translation: “We have no idea why these files weren’t processed. We don’t know where else this problem may exist but we are guessing it’s limited to the files you noticed. A ticket has been opened with our development team which will languish in a queue for months before someone closes it because it’s become stale.”
“Analyst / operator error” Someone messed up and the vendor can’t blame it on anything else. This is typically followed by an assurance that additional Q.C. steps have been added to the process to ensure it never happens again.
Example: “An incorrect custodian value was applied to these documents due to analyst error. We have added a step to our Q.C. process to ensure this error doesn’t occur again.”
Translation: “An analyst made a mistake they really shouldn’t have been able to make in the first place. We have added another item in a checklist which is often ignored because we’re always rushing to keep up with deadlines.”
“Rolling deliveries.” Incremental data deliveries are typically designed to obscure an inability to achieve the throughput needed to deliver your data on time. Breaking the data up at least gives you something to work with so you don’t have downtime during which you wait and silently curse your vendor.
Example: “We have begun processing your 100 GB dataset and will start rolling deliveries on Monday.”
Translation: “We can’t get through your 100 GB in time for review to start, so we’ll begin dropping increments of data into the database for review.”
“Data density.” This meaningless phrase is used to explain any delay in indexing, regardless of the quality, quantity, or type of data involved. Any time indexing slows for any reason, it’s identified as a data problem and the cause is the “density” of the data, a quality which is impossible to measure, gauge or predict.
Example: “These documents have yet to be indexed due to the density of the data. We will continue to keep you updated on the progress of the indexing process.”
Translation: “Your documents are indexing very slowly. We don’t have an explanation of why the index is hung up, but when this has happened before it clears itself up magically, so we assume these documents are somehow ‘denser’ than others.”
“Final search sweep” / “Data audit.” These catchphrases appear when the vendor has suddenly found data that they should have found in the past. This may be due to an error or a lag in indexing, but that won’t matter to you when 50,000 new documents appear right before your discovery deadline.
Example: “Our standard data audit identified additional documents responsive to your search terms. These 34,000 documents are currently being batched for review.”
Translation: “We missed these documents. Here they are. Good luck. We will expect your request for a credit at the end of the month.”
Keep your eye out for these phrases or others like them – they reliably signify that things aren’t going as well as your vendor would like you to know, and the sooner you ferret out the whole truth the better your reality will be. At the same time, don't throw the baby out with the bathwater. eDiscovery is complex and the data can be unwieldy. While nothing should be taken at face value, this is not to say you should take your business elsewhere. Most vendors do have something of value to offer, it's up to you to make sure that's what they deliver.
Thursday, July 31, 2014
5 Questions You Should Be Asking Your eDiscovery Vendor
EDiscovery is a multi-billion dollar industry, and the market gets bigger every year. Competition is notoriously fierce, and vendors will do whatever they think they need to do to get and keep your business. Sometimes that means providing “above and beyond” service. More often, though, that means working to create or maintain the illusion of excellence.
Whether you’re sifting through RFP responses, listening to a sales pitch or asking questions about a live “in-progress” project, a good portion of what you hear from your vendor is designed as much to obscure the truth as it is to reveal it. Half-truths, “spin” and even outright puffery are common, and if you don’t ask the right questions before and during your project, you’ll be wearing rose-colored glasses without even knowing it.
Forewarned, of course, is forearmed, and asking tough questions at the outset of a vendor relationship can save you time, expense and frustration when a project goes “live.” Critical thinking about communication is the key to successful management of outsourced eDiscovery services. Keep in mind that everything you hear from your vendor serves a sales function – the good is always trumpeted while the bad and the ugly are minimized and obscured. Pushing a bit harder for real information is a fundamental best practice in eDiscovery vendor relationships.
To that end, here are five key questions every eDiscovery consumer should be asking of their vendors. Keep in mind, of course, that the "right" answers depend on the situation. Interpreting the answers does require some additional critical thinking and expertise, which you may apply yourself or gain from an eDiscovery consultant.
1. What can I really expect from my project managers?
Project management is the key to client service in eDiscovery, and it’s an area where you’re very likely to hear exactly what you want to hear whether or not it’s true. You’ve probably been told that you’ll have a “dedicated” project manager who will be available to you any time you need him or her. Your nonsense detector should be on overload already – the notion that a project manager will be assigned exclusively to your project day and night should never pass the smell test.
Ask your vendor what the actual staffing structure will be – how many project managers will be assigned to your matter? What coverage hours should be expected? How many other projects will they be working on? How can you be sure that the project managers are all well-informed about your particular requirements? What’s the usual workload of the vendor’s project managers? What do they do to ensure retention and knowledge transfer?
2. Which processes involve manual intervention?
Good software and automation are the foundation of any robust eDiscovery process. Repeatable results are the cornerstone of your ability to effectively represent that you’ve complied with discovery demands and orders. You can be sure that your vendor strives for automation in the pursuit of accuracy and efficiency. You can be just as sure that their efforts do sometimes fail, and that manual processes fill the gaps.
Every manual process is a potential point of failure. Every situation in which human intervention is required presents an inevitable risk of human error. Pushing your vendor to identify these potential points of failure puts you in a position to press for particular accuracy and completeness in these areas.
3. How are hosting charges calculated?
Hosting charges for large matters can become significant and are a common area where expectations fail to connect with reality. That’s because your vendor’s sales people are trained to underestimate items like hosting and your vendor’s operations team is trained to bill for everything.
You might expect that the 100 GB of .pst files you sent for processing will generate 100 GB of hosting fees every month. That expectation is reasonable, but in most cases it’s wrong. That 100 GB of .pst data is likely to result in 150GB of hosting without even tiffing the data. Litigation databases typically have records linking to separate native files for both parent emails and their attachments, which means that you are likely paying to store attachments twice – once embedded in the parent email, then again as a separate attachment file. In addition, many vendors charge you for storage of the database itself, which can ultimately become quite large. If you add tiff images, the storage footprint for your 100 GB of email could grow to 200 GB or more.
At the outset, ask your vendor how hosting costs are calculated. Then hold them to their answer by requesting a monthly report detailing the sources of your hosting charges. In this way you can avoid unexpected costs that can tip your project over budget in a very short time.
4. What types of files are not handled natively?
Good processing software should handle common file types natively without conversion. Any conversion process risks spoliation, data loss, or alteration of metadata. It may surprise you to learn that many vendors can’t handle some common email formats natively - .ost files are a common example, and some vendors can’t process .nsf, mbox or other common types without converting them to .pst. Most vendors also employ Microsoft’s “scanpst” utility to repair .pst files that appear to be corrupt. What’s disturbing is that conversion or repair processes are often undertaken without notifying the client. Bearing in mind the possibility of data loss and spoliation, clients should be notified of any conversion or repair effort. And yet, if you don’t ask, vendors most likely won’t tell. Request a list of any and every common file type that your vendor can’t process natively, and you’ll be well aware of the risks before they turn into issues.
5. How are indexing and search results validated?
Complete and accurate search results are essential to every eDiscovery effort. Search terms are often used to cull data at the outset, which means that data without search terms falls out of the process completely. This is wonderful if and only if you’ve successfully captured everything you may need to review. Missing documents and data can result in sanctions and adverse inferences, so the completeness and accuracy of searches is absolutely vital.
Ask your vendor how indexes are updated and how analysts and clients are kept informed of indexing status. In addition, ask how indexing exceptions and errors are logged and reported. Searches are not complete until they’re actually complete.
More importantly, ask your vendor how search syntax and results are validated. Search execution is both an art and a science, and incorrect searches are an exceptionally common issue in eDiscovery projects. Asking for a documented validation process for search construction and execution puts you in the driver’s seat for this vital stage of your project.
Perfection is rarely a goal in eDiscovery. In the history of the industry, the examples of flawless project execution are few and far between. Every eDiscovery consumer should be armed with tough questions for their vendors so that the inevitable will never take you by surprise.
Whether you’re sifting through RFP responses, listening to a sales pitch or asking questions about a live “in-progress” project, a good portion of what you hear from your vendor is designed as much to obscure the truth as it is to reveal it. Half-truths, “spin” and even outright puffery are common, and if you don’t ask the right questions before and during your project, you’ll be wearing rose-colored glasses without even knowing it.
Forewarned, of course, is forearmed, and asking tough questions at the outset of a vendor relationship can save you time, expense and frustration when a project goes “live.” Critical thinking about communication is the key to successful management of outsourced eDiscovery services. Keep in mind that everything you hear from your vendor serves a sales function – the good is always trumpeted while the bad and the ugly are minimized and obscured. Pushing a bit harder for real information is a fundamental best practice in eDiscovery vendor relationships.
To that end, here are five key questions every eDiscovery consumer should be asking of their vendors. Keep in mind, of course, that the "right" answers depend on the situation. Interpreting the answers does require some additional critical thinking and expertise, which you may apply yourself or gain from an eDiscovery consultant.
1. What can I really expect from my project managers?
Project management is the key to client service in eDiscovery, and it’s an area where you’re very likely to hear exactly what you want to hear whether or not it’s true. You’ve probably been told that you’ll have a “dedicated” project manager who will be available to you any time you need him or her. Your nonsense detector should be on overload already – the notion that a project manager will be assigned exclusively to your project day and night should never pass the smell test.
Ask your vendor what the actual staffing structure will be – how many project managers will be assigned to your matter? What coverage hours should be expected? How many other projects will they be working on? How can you be sure that the project managers are all well-informed about your particular requirements? What’s the usual workload of the vendor’s project managers? What do they do to ensure retention and knowledge transfer?
2. Which processes involve manual intervention?
Good software and automation are the foundation of any robust eDiscovery process. Repeatable results are the cornerstone of your ability to effectively represent that you’ve complied with discovery demands and orders. You can be sure that your vendor strives for automation in the pursuit of accuracy and efficiency. You can be just as sure that their efforts do sometimes fail, and that manual processes fill the gaps.
Every manual process is a potential point of failure. Every situation in which human intervention is required presents an inevitable risk of human error. Pushing your vendor to identify these potential points of failure puts you in a position to press for particular accuracy and completeness in these areas.
3. How are hosting charges calculated?
Hosting charges for large matters can become significant and are a common area where expectations fail to connect with reality. That’s because your vendor’s sales people are trained to underestimate items like hosting and your vendor’s operations team is trained to bill for everything.
You might expect that the 100 GB of .pst files you sent for processing will generate 100 GB of hosting fees every month. That expectation is reasonable, but in most cases it’s wrong. That 100 GB of .pst data is likely to result in 150GB of hosting without even tiffing the data. Litigation databases typically have records linking to separate native files for both parent emails and their attachments, which means that you are likely paying to store attachments twice – once embedded in the parent email, then again as a separate attachment file. In addition, many vendors charge you for storage of the database itself, which can ultimately become quite large. If you add tiff images, the storage footprint for your 100 GB of email could grow to 200 GB or more.
At the outset, ask your vendor how hosting costs are calculated. Then hold them to their answer by requesting a monthly report detailing the sources of your hosting charges. In this way you can avoid unexpected costs that can tip your project over budget in a very short time.
4. What types of files are not handled natively?
Good processing software should handle common file types natively without conversion. Any conversion process risks spoliation, data loss, or alteration of metadata. It may surprise you to learn that many vendors can’t handle some common email formats natively - .ost files are a common example, and some vendors can’t process .nsf, mbox or other common types without converting them to .pst. Most vendors also employ Microsoft’s “scanpst” utility to repair .pst files that appear to be corrupt. What’s disturbing is that conversion or repair processes are often undertaken without notifying the client. Bearing in mind the possibility of data loss and spoliation, clients should be notified of any conversion or repair effort. And yet, if you don’t ask, vendors most likely won’t tell. Request a list of any and every common file type that your vendor can’t process natively, and you’ll be well aware of the risks before they turn into issues.
5. How are indexing and search results validated?
Complete and accurate search results are essential to every eDiscovery effort. Search terms are often used to cull data at the outset, which means that data without search terms falls out of the process completely. This is wonderful if and only if you’ve successfully captured everything you may need to review. Missing documents and data can result in sanctions and adverse inferences, so the completeness and accuracy of searches is absolutely vital.
Ask your vendor how indexes are updated and how analysts and clients are kept informed of indexing status. In addition, ask how indexing exceptions and errors are logged and reported. Searches are not complete until they’re actually complete.
More importantly, ask your vendor how search syntax and results are validated. Search execution is both an art and a science, and incorrect searches are an exceptionally common issue in eDiscovery projects. Asking for a documented validation process for search construction and execution puts you in the driver’s seat for this vital stage of your project.
Perfection is rarely a goal in eDiscovery. In the history of the industry, the examples of flawless project execution are few and far between. Every eDiscovery consumer should be armed with tough questions for their vendors so that the inevitable will never take you by surprise.
Wednesday, July 30, 2014
No, BYOD Will Not Solve Your eDiscovery Problems
A recent article on Dell Computer’s “Tech PageOne” blog suggests that the advent and growth of BYOD (“Bring Your Own Device”) policies will serve to shield companies from eDiscovery costs. The article suggests that the use of personal devices for business purposes will place those devices beyond the control of employers, thus excusing them from the obligation to produce the data they contain. Privacy concerns, the article posits, would ultimately trump any compliance, discovery or production obligations.
Now before you rush off and rewrite your internal security policy to allow, encourage, or even require BYOD, let’s think this through. BYOD will not serve to excuse employers from their preservation and production obligations. Preservation obligations don’t arise from convenience, they arise from statutory and common law duties. For a company that allows BYOD, internal procedures and policies must address collection from personal devices – anything less would be negligent. It’s not difficult to envision a court imposing sanctions for discovery omissions created by the existence of relevant data beyond a litigant’s custody and control where the litigant should have reasonably anticipated the need to preserve and produce that data.
Instead of assuming privacy concerns and “custody and control” arguments will excuse fundamental compliance and discovery obligations, employers who permit BYOD are obliged to consider the retention implications of such a policy and to put sufficient controls in place to allow discovery of data held on those devices to occur. Requiring employees to sign privacy waivers is a far more likely outcome. Indeed, a waiver policy would also serve important data protection goals for such situations as departing employees whose personal devices hold proprietary or sensitive information.
Rather than reducing eDiscovery costs, BYOD is more likely to increase them, as data is stored in different formats and structures on diverse and non-uniform devices, necessitating manual collection and culling efforts. It’s also true that storage of identical data in different formats across multiple operating systems increases the likelihood that conventional de-duplication methodologies will fail, resulting in over-processing and unnecessary review.
BYOD may look great to manufacturers like Dell, who would, I’m sure, love to circumvent corporate procurement policies and discounts by selling business devices to individual employees. A thoughtful approach to the risks and rewards of BYOD should account not only for the security implications of such policies but the potential eDiscovery issues as well. Those issues are almost certain to tip the scales against BYOD without strict controls and privacy waivers.
Now before you rush off and rewrite your internal security policy to allow, encourage, or even require BYOD, let’s think this through. BYOD will not serve to excuse employers from their preservation and production obligations. Preservation obligations don’t arise from convenience, they arise from statutory and common law duties. For a company that allows BYOD, internal procedures and policies must address collection from personal devices – anything less would be negligent. It’s not difficult to envision a court imposing sanctions for discovery omissions created by the existence of relevant data beyond a litigant’s custody and control where the litigant should have reasonably anticipated the need to preserve and produce that data.
Instead of assuming privacy concerns and “custody and control” arguments will excuse fundamental compliance and discovery obligations, employers who permit BYOD are obliged to consider the retention implications of such a policy and to put sufficient controls in place to allow discovery of data held on those devices to occur. Requiring employees to sign privacy waivers is a far more likely outcome. Indeed, a waiver policy would also serve important data protection goals for such situations as departing employees whose personal devices hold proprietary or sensitive information.
Rather than reducing eDiscovery costs, BYOD is more likely to increase them, as data is stored in different formats and structures on diverse and non-uniform devices, necessitating manual collection and culling efforts. It’s also true that storage of identical data in different formats across multiple operating systems increases the likelihood that conventional de-duplication methodologies will fail, resulting in over-processing and unnecessary review.
BYOD may look great to manufacturers like Dell, who would, I’m sure, love to circumvent corporate procurement policies and discounts by selling business devices to individual employees. A thoughtful approach to the risks and rewards of BYOD should account not only for the security implications of such policies but the potential eDiscovery issues as well. Those issues are almost certain to tip the scales against BYOD without strict controls and privacy waivers.
Tuesday, July 29, 2014
Your Privileged Communications: An Open Book
A recent Lexis/Nexis survey revealed some disturbing truths about the protection of privileged communication between law firms and clients. The survey of 282 respondents in 15 practice areas across 40 states, asked attorneys what security measures they take to protect privileged communications sent via email. 77 percent said that they include the confidentiality statement with the email.
What's even more disturbing is that only 22 percent said that they encrypt privileged emails. Fewer still make use of fundamental security measures like password-protecting documents or sending links to documents rather than sending the files themselves. In fact, the survey also found that 52.5 percent of lawyers have used free consumer file sharing services like Dropbox for privileged communications.
A full summary of the survey can be found here: http://businessoflawblog.com/2014/05/file-sharing-lawyer/
Lawyers can no longer live in denial of their responsibility to use technology in a safe and secure manner. Attorneys need to recognize that their fiduciary duties to their clients include a duty to be conscious of the security requirements of communication in the digital age. No attorney should choose convenience over protecting the confidentiality of their communications and their clients' data.
Monday, July 28, 2014
Compliance Obligations: They're Not Just for Parties Anymore
It is axiomatic that parties to a litigation can find themselves on the hook for fees and sanctions when spoliation is found, but the case of Logtale, Ltd. v. IKOR, Inc. in the Northern District of California highlights the principle that counsel can be sanctioned as well, when counsel is found to have neglected their duty to ensure a client’s search for responsive documents and information is complete. In this case the defendants and their counsel were each assessed a portion of a $1.4 million sanction award.
Neither counsel nor their clients can take discovery obligations lightly - attorneys need to ask the right questions in order to fully understand the landscape of their clients' data to ensure that their own representations of compliance are true and accurate. Anything less than that exposes both the client and counsel to potential liability.
All the salient details can be found in the always interesting ELL blog.
http://ellblog.com/another-reminder-that-attorneys-are-responsible-for-the-e-discovery-behavior-of-their-clients/
Neither counsel nor their clients can take discovery obligations lightly - attorneys need to ask the right questions in order to fully understand the landscape of their clients' data to ensure that their own representations of compliance are true and accurate. Anything less than that exposes both the client and counsel to potential liability.
All the salient details can be found in the always interesting ELL blog.
http://ellblog.com/another-reminder-that-attorneys-are-responsible-for-the-e-discovery-behavior-of-their-clients/
Subscribe to:
Posts (Atom)