From proactive EDD to compliance and governance

I spent a few minutes with Fulbright & Jaworski partner Robert D. Owen, prior to his opening remarks at the Masters Conference. There, he planned to give attendees a few things to think about during the conference and revealed some of the findings to Fulbright's Annual Litigation Trends Survey.

One thing that stuck to my wall is the fact that the U.S. is the only country on the planet that considers full, pretrial disclosure. And, that 74 percent of the midmarket firms that responded were in favor of reconsidering our approach to full, pretrial discovery. This follows on the heels of the 2007 Litigation Trends Survey where 26 percent of respondents said that the cost of privilege review consumes 20-50 percent of their litigation budget. For these facts, Owen asked “Is this how we want to spend our litigation budget and where we want to train our new attorneys?” These good questions based on the enormous amount of energy that is expended on pretrial discovery -- but what to do?

Owen came up with a scenario to relieve the high costs of e-discover in money and labor. That the U.S. will need to put some limits on discovery, e.g., by reducing the number of custodians or establishing a budget for based on the values of the case and what’s at stake. Now this won’t stop the world from turning according to Mr. Owen. After all, remember when depositions could last forever.

At one time in the not-so-distant past, there was no limit to the length of time a deposition could carry on. And carry on, they did -- for days and sometimes weeks. Then, the Federal Rules of Civil Procedure was amended to put a presumptive 7-hour time limit on depositions (Rule 30). Well, "we live with that rule," says Owen, "and litigation is getting resolved and the world keeps turning." Indeed it does.

The alternative to putting the breaks on pretrial e-discovery is to use technology to deal with the vast amounts of information and reduce document sets to those most relevant to litigation. Toward this end, there have been a number of announcements surrounding the Masters Conference as well as The Association of Corporate Counsel annual meeting in Seattle, and ARMA International's 53rd Annual Conference and Expo in Las Vegas.

LEGAL HOLDS

If you do not have a process or control to put a hold on content that may be pertinent (aka relevant) to litigation, I hope you have a good backup process and a fat budget to retrieve items from it. Otherwise, you may face sanctions for the failure to deliver up a discovery request. But don’t take my word for it.

CGOC and the Huron Consulting Group released the Benchmark Survey on Prevailing Practices for Legal Holds Practices in Global 1000 Companies. The survey focused on corporate practices for preserving information in litigation, identifying custodians of data, and communicating legal holds.

The survey targeted companies with an annual revenue ranging from $5 billion to more than $150 billion, and in the biotechnology, chemical, energy, financial services, insurance, manufacturing, pharmaceutical, and high tech sectors. The findings highlight the changes in processes and technology within these companies and the methodologies used to issue legal holds, manage preservation, and conduct e-discovery.

According to the survey, a majority of e-discovery risk can be linked to the legal holds process. This, together with the key legal decisions in recent years and the amendments of the Federal Rules of Civil Procedure for electronic discovery, companies have increasingly formalized their legal holds process and are more routinely and consistently issuing legal holds as new matters arise. Yes, this all bespeaks a way to manage legal holds where both PSS Systems' Atlas and Exterro’s Fusion hang their hats. But now there are more options from Guidance Software and Recommind.

Guidance Software recently announced EnCase Legal Hold, a web-based litigation hold and tracking solution that is tightly integrated with EnCase eDiscovery. This integrated solution will begin shipping in December 2008 and hopes to enable corporate legal  departments to identify and notify custodians for legal preservation holds at the outset of litigation, and manage, track and report on the actual preservation, collection, and processing of ESI. No small task in today’s litigious society.

Like Guidance, Recommind sees an opening for their search, e-mail management, and e-discovery technology to include a process for litigation hold. The new Insite Legal Hold product aims to help enterprises explore, preserve and collect ESI to prepare for and comply with the requirements of litigation, regulatory oversight and investigations of every kind.

Recommind’s technology seeks information where it resides and places a hold on it in response to an investigation or lawsuit. This “Explore in Place” technology is a different legal hold methodology as competitive solutions that index and aggregate large amounts of data and then determine its relevance, prior to collection.

There is certainly room for more technology on implementing legal holds. After all, consultants and vendors have been advising companies on implementing procedures and tools to become more proactive in managing information in anticipation for litigation for over a year now. And, with investigations on the financial crisis looming and a new regulatory regime in site, companies are now listening. But one has to take note as to the new entrants: established players.

There is a lot of buzz in the EDD space around the fact that no single vendor can “do it all.” But yet more and more vendors are trying to do it all. What gives? Well, they do not want to send a client packing for a different product once the client is in the door.

E-DISCOVERY PLATFORM UPDATES

CaseCentral is hoping that the third time is a charm. In the third major release of its On-Demand eDiscovery Review Platform, CaseCentral is marking its territory in the multi-case, multi-party review platform that includes a dashboard with process analytics.

On-Demand’s dashboard looks to monitor all cases and measure all reviewers across any number of law firms and parties with an eye to reduce the time, costs, and risks of e-discovery. In addition to the dashboard, CaseCentral is also rolling out a new pricing model.

E-discovery vendors have traditionally marketed their services on a volume, per Gigabyte, pricing approach. CaseCentral offers a predictable software pricing model based on licenses "that practically eliminates Gigabyte, volume-based, costs." I guess the watch words there are "practically eliminates."

Fios has taken the interim between Legal Tech New York and now to rebuild its search architecture and integrate Content Analyst’s concept search engine into its hosted review platform: Prevail. In addition, it has added iCONECT’s review and case management software to its data management center for a more complete hosted review platform.

The new search architecture in Prevail aims to make it easier to search large volumes of ESI. That’s right, ESI only comes in large, larger, and largest nowadays. In practice, Prevail should be able to conduct keyword searches with improved performance time of more than 200 percent when searching multi-million page data sets in multi-party matters. When asked about the previous search performance under those conditions, Fios informed me it was just short of blazing. Go figure. But we are happy someone is getting some improved performance out of something. Perhaps Fios should start running the economy.

Search is not just about a fast performance. But I didn’t need to tell Fios that. They have added Content Analyst Analytical Technology to Prevail with an aim to help clients identify, analyze, and tag documents that are potentially relevant to a discovery request. With CAAT, Fios you should be able to search document sets by concept, not just identified search terms. Note that Fios Consulting is also using CAAT in its Early Evidence Assessment service.

Fios is adding iCONECTnXT, a hosted litigation support and collaboration platform, to its Data Management Center. With this integration, Fios hopes to open up options for clients to annotate, redact and adjust images using iCONECT’s image viewer, search and review foreign language documents, including Chinese, Japanese, Korean, Arabic, Punjabi, and Russian; and manage ESI after a first-pass review by leveraging iCONECTnXT’s case management capabilities, including deposition and expert witness preparation.

GOVERNANCE AND COMPLIANCE

As we march to the next Legal Tech New York, we’re going to be hearing a lot about governance and compliance. This segues from "proactive" litigation tools and brings the conversation on litigation preparedness to new heights: the boardroom. With that in mind there are two groups aimed at framing the issues and developing best practices outside of Sedona.

A Legalgrc group was established at ILTA to help identify and mitigate the risk exposure of in-house counsel across a wide area of compliance concerns from anti-trust to e-discovery to securities. The acronym stands for “legal governance, risk, and compliance” and, rather than take a reactive stance to compliance, it aims to take a proactive approach by anticipating risk exposure and establishing good governance. Today, this group is formulating the issues and publishing white papers. It is one to watch, along with the Compliance, Governance and Oversight Council

The CGOC is a community of experts in retention, preservation and privacy. It aims to create a forum where legal and compliance executives can meet, interact, and inform one another to make good business decisions. CGOC offers corporate litigation, discovery, and records management practitioners with continuing education, surveys, workshops, white papers, and an annual summit and retreat.