The Wave of the Future:

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1 The State Bar of Michigan Paralegal Section Annual Day of Education at Davenport University 1 May Grand Rapids, MI USA The Wave of the Future: New Tools and Resources in an E-discovery World 1 May :30 p.m. 4:30 p.m. Doug Kaminski, Oce Business Services Denise Boccomino Bach, Xact Data Discovery Suzanne Alfastsen, Kelly Law Registry

2 Common Problems Data volumes keep expanding, driving up the cost of discovery Legacy review platforms haven t kept pace, aren t cost effective ediscovery process (e.g., identification, preservation, collection, processing and review) is extremely time consuming Project must be managed to meet compliance requirements or court imposed deadlines Review stage is the costliest part of discovery (=>70%)

3 It s All About the EDRM

4 Focus on Reducing cost at every stage of the EDRM Finding ways to make it greener People, processes, and technology Creating repeatable, defensible processes Documenting those processes Everyone playing nice in the sandbox Balancing insourcing and outsourcing

5 Identification Determining where the ESI resides, is it accessible, what type, and how much potentially responsive ESI (and paper) do you have in total. Cost saving factors Policies on where ESI can be kept Enterprise search tools Education on data housecleaning Proactive data management Weighing tape vs. active archival (legal) Common pain points Figuring out where all ESI is stored Coordination with IT and Records Tech details and coordination with OC Legacy systems Accessibility and resources Not involving OC early enough Global issues Risk reduction Policies on where ESI can be kept Systems that allow for easy ID Understanding human nature Making IT/Records part of ED team Education Understanding data types and access

6 Preservation and Collection Preserving the ESI in question thoroughly and in a timely manner. Gathering that ESI completely and in a legally defensible manner. Cost saving factors Lit hold systems (high or low-tech) Proactive data management Defensible ways to reduce quantity Collect broadly/review narrowly Argue burden where you can Common pain points Implementation of the hold Coordination with IT and Records Tech details and coordination with OC Removal of the hold Accessibility and resources (global) Documenting process of both Spoliation (???) Risk reduction Policies on where ESI can be kept Educate on need for preservation Understanding human nature Ability to lock down/audit systems Education on defensible collection Properly enforced retention/hold policies

7 Analysis and Processing Indexing the data so decisions can be made and/or methods defended. Normalizing and reducing the data to speed review Common pain points Too much data to deal with Not knowing relation of data to request Data integrity issues with vendor Delays and data corruption issues Poor culling strategies Keyword search issues Cost saving factors Solid strategy on data (involve early) Building repository Choose vendor(s) carefully Build team of preferred vendors Understand vendor stability (VC $) Use proven data reduction tools Use analytics to negotiate down data Risk reduction Solid strategy on data (involve early) Choose vendor(s) carefully Understand vendor stability (VC $) Use proven data reduction tools Understand search methods used

8 Data Reduction Strategy Risks During Preservation/Collection Requires more human intervention (enterprise index) Reliant on skill of operator; higher % of error During Analysis/Processing Less human interaction but must be tested/proven Can cost more up front but paradigm is changing Best approach: guided analytics to reduce processing During Review Costliest way to reduce data Can lead to premature settling

9 New Technology for EDRM To automate analysis and processing Clearwell Nuix earlycase All-in-one boxes (ID through review) Kazeon MatterSpace StoredIQ Reducing Bulk article: SPUpdate_November2008.pdf

10 Thank You!

11 The State Bar of Michigan Paralegal Section Annual Day of Education at Davenport University 1 May Grand Rapids, MI USA Conceptual Searching What is Conceptual Searching Defensibility Current Case Law Concept Searching - Options Denise Boccomino Bach Xact Data Discovery

12 Conceptual Search in Electronic Discovery Average business mailbox contains 4.3 GB of potentially discoverable ESI Limit number of documents that need to be reviewed Content search to distinguish those documents that are potentially responsive from those that are not Keyword and Boolean Queries Us. v Philip Morris Concept Searching

13 Legal Perceptions of Advance Search Technologies Comfort level with technology Increasing burden of ESI Attempt to define reasonable steps regarding inadvertant disclosure

14 Where are the Courts today? Justices pressing use of advanced techniques Disability Rights Council v. WMATA virtually ordered to use Conceptual Search US v. O Keefe Government s Keyword search plan ruled inadequate Victor Stanley v Creative Pipe failure to use only Keyword search responsible for privileged information disclosure Mandates? not yet

15 Disability Rights Council v. WMATA This case pitted a little-known Advocacy Group against the Washington, DC Metropolitan Transit Authority At issue was keyword search neither side would accept search limitations To resolve issue, court said concept searching, as opposed to keyword searching, is more efficient and more likely to produce the most comprehensive results. Parties settled out-of-court in 2008

16 U.S. v. Michael O Keefe et al In this case, the US Government accused O Keefe of accepting bribes in exchange for worker visas At issue were search procedures defendant claiming Government s were inadequate To resolve issue, court said parties need to look at advanced techniques like Concept Searching or risk cases being derailed because of known limitations of keyword or Boolean.. Defendant has filed formal complaint ref. search procedures

17 Victor Stanley v. Creative Pipe In this case, 165 privileged documents were inadvertently disclosed At issue was whether defendant had waived right to not disclose privileged information To resolve issue, court said all keyword searches are not created equal [known] risks associated with unreliable or inadequate keyword search.. Waiver was upheld (clawback not permitted)

18 Privilege and Analytics - FRE 502 FRE 502 becomes the Rule of the Land (signed into law 9/19/ places limitations on Waiver 502 also is the first Ruling to deliberately address Analytics: a holder that uses advanced analytics may be found to have taken reasonable steps to prevent disclosure of protected information.

19 Future Direction of the Courts Courts becoming as technologically-aware as the Parties or more so Courts not satisfied with limited Search strategies Strong recommendations hint at future rulings, possible reversals Defensibility question not really applicable

20 Concept Search Ontology/taxonomy/thesaurus-based methods List of related terms Solves the synonymy problem Word relationships software learns the meaning of words from the documents in the collection while it indexes Algorithms (Math) are well-documented Results are repeatable Search does not exclude documents Actually returns everything Documents are ranked based on Concept

21 How to use Concept Search in E- Discovery Concept Search During Review Housed in Review Platforms Allocate resources Helpful in culling down review documents Concept Search Prior to Actual Processing Better understanding of scope of documents Develop key word terms Cost Beneficial Potentially reduce the amount of docs to be processed Reduce review burden Expand documents retrieved, focus results on most relevant documents

22 Thank You

23 A Business Case for Legal Staffing Solutions

24 Staffing Resources Contract/ Temp Attorney, Paralegal, Legal Assistant, Law Clerk... Project team-document Review/E Discovery OUTSOURCING Offshore Onshore/Nearshore Project Space/Technology Management Project Management Consulting

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26 Cost Cutters Paralegal Prowess/Utilization Contract Attorneys Overseas Savings Technology Toolbox Chargebacks

27 According to Inside Counsel s 19 th Annual Survey of General Counsel, 85% of inside counsel agreed that economic conditions are increasing pressure to spend less on outside counsel and 46.3% said reducing costs was the most significant thing law firms could do to improve their relationships. (July 2008)

28 In Altman Weil s Flash Survey on Law Department Cost Control, 80% of General Counsel cited their greatest concerns regarding 2009 legal spending were outside counsel costs and the unpredictable nature of legal spending. (December 2008)

29 Stages of Litigation

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39 Looking Ahead in 2009 The Importance of a Clear Strategy Adjusting Compensation Structures Creating more Flexible Professional Staff Structures Developing more efficient Approaches to the Delivery of Legal Services (HILDEBRANDT Client Advisory January 2009)

40 Thank you for attending this session!

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