Discovery Control
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Chapter 7Discovery Software

The proliferation of PCs, laptops, smartphones, and even the Internet of Things have created exploding volumes of discoverable, electronic evidence. That growth in electronic documents threatens to break the discovery process. The only solution is to use equally disruptive technology to tame the challenges of modern discovery.

A Short History of eDiscovery Software

It may be hard to remember now, but discovery was once an analog affair. A large case would require mountains of cardboard banker’s boxes. Teams of contract attorneys would hole up in a conference room or stifling warehouse where they would read, one by one, every document, memo, receipt, accounting ledger, and record that was dumped on their desk.

In the late 1970’s and early 1980’s, the emergence of corporate computing began to slowly change this system. Volume wasn’t the problem yet—complexity was. No contract reviewer could be expected to make heads or tails of a computer punch card.

But then, in the 1980’s the desktop PC came into the law firm and lawyers realized they could use these machines to organize hundreds, or maybe thousands, of pieces of evidence.

In short, lawyers began to see the challenge and the opportunity afforded them by the desktop computer.

Indeed, the database technology that is still used by many litigators dates back to the early 80’s. One such platform, CT Summation, was first thought up more than 35 years ago. Jon Sigerman, founder CT Summation, writes:

In 1982, David Rotman and I conceived the idea for what became CT Summation. At the time, David was a megafirm litigation partner and I was a solo practitioner. Really, we combined our ideas for applying personal computers to litigation support. I had a docket of smaller cases, some of which at any given time were hot, while others were not. My desire was to have a system that made it easy for me to winnow each case down to a critical mass of evidence by clipping and assimilating excerpts of the key portions of documents or deposition transcripts.

David on the other hand, wanted a platform on his and his paralegal’s desktop IBM PC’s to index and archive potentially important documents and transcripts from a case.

Another discovery platform, Concordance, is almost as old. Concordance was launched in 1984, as a system that could offer full-text information retrieval on a personal computer.

These once ground-breaking tools still remain in use by some firms today. After all, Summation and Concordance may be approaching middle age, but the problems they were designed to solve still exist. In 2017, as in 1982, attorneys still need to narrow down mounds of evidence to the most critical documents and recall those documents as needed. But the technology was designed for managing documents, not strictly for eDiscovery.

By the turn of the millennium a few entrepreneurs and software vendors had recognized that the volume of evidence was a challenge. Reviewing it was a nearly impossible task with existing software.

To remedy the situation, software vendors began introducing new search tools designed to help make sense of it all. Not all of it worked. The most recognized member of this next generation is kCura’s Relativity, a review platform designed to help ingest, process, and review large amounts of electronic evidence.

At the same time, eDiscovery vendors began to proliferate. Vendors, making use of platforms such as Relativity, could help guide a firm’s discovery process, from data ingestion to production—often for a hefty fee.

Technology from this era allowed parties to deal with growing electronic evidence, but often in a way that was highly complex and, in many cases, prohibitively expensive.

Years later, these tools are reaching the limits of what is needed for modern litigation.

The Size of the Matter

Since the start of the Computer Age, discoverable data has grown at incredible rates. The amount of digital information that attorneys needed to review in 1984, or even 2004, pales in comparison to the volumes of data available today.

There’s a reason for this. Moore’s Law posits that computing power doubles every 18 months. Since it was coined by Intel founder Gordon Moore in 1965, it has remained a relatively accurate predictor of processing power growth. As computational resources increase, so too does the amount of data that is produced. Indeed, according to Ion Stoica, a computer sciences professor at the University of California, Berkeley, data growth even outpaces Moore’s Law.

It’s an endless feedback loop: More processing power means more data, in turn requiring more processing power, allowing for more data. Consider the backlog of unread emails in your Gmail account. Gmail’s inbox size has made it possible to hoard millions of emails, which has in turn resulted in ever greater electronic document creation.

That’s just the tip of the iceberg. There are many places that ESI can be stored within an organization, either on-premise, in a data center or cloud service. It may reside in unstructured systems or structured systems, and may exist as active data, archived, legacy, or deleted data. Almost all of this data is discoverable in litigation.

As data grows at ever-increasing rates, the tools used to process and review that data need to be able to keep up.

Cloud-based Discovery Automation

The evolution of eDiscovery technology has led to the cloud. Cloud-based services can scale, or grow to meet any sized challenge. Scalability allows a system to access resources needed to accommodate larger workloads or to free up resources when they are not needed.

But scale alone is not the solution. A true eDiscovery software solution must also be intelligent and flexible. In the cloud, there is enough computing power and flexibility so that legal teams can address their discovery challenges intelligently and strategically. This next stage in the evolution of discovery software uses process automation and “intelligent” data processing to manage data in the cloud.

Automating many of the labor and time-intensive processes typically associated with eDiscovery is now possible, from early case assessment through production. That means formerly slow or costly processes can be handled automatically and in a matter of minutes. The technology automates processes such as data ingestion, indexing, OCRing, virus scanning, and so on. It takes advantage of user-friendly interfaces, real-time collaboration, 24/7 accessibility, cost-predictability, and fast deployment via the cloud.

This automated, cloud-based process also allows for use cases well beyond traditional document review. In some organizations, compliance teams are using such systems to conduct internal investigations. General counsel’s offices are using it to move eDiscovery in-house, while finance departments utilize the technology to conduct tax audits. It’s not a matter of simply using the scalability of the cloud, but also a maturing of legal technology more generally, where user-friendly technology accessible by cloud and infinitely scalable can be deployed to address a wide range of different projects concurrently.

Cloud-based Security

That law firms are bullseyes for cybercriminals should go without saying. Through litigation, investigations, M&A, and other delicate legal activities, law firms and other service providers gather reams of highly valuable data into one place. For hackers, breaching a law firm’s security means hitting the figurative jackpot.

There's a common adage among cybersecurity professionals: data is at its most vulnerable when it's in motion. Unfortunately, the traditional eDiscovery workflow is a process of motion. And it's also a process of replication. Under the EDRM-driven model of eDiscovery, data is transferred, shared and copied repeatedly, often with no log of who touched it or where it resides. Really, it's an ideal workflow—for hackers, that is.

The traditional eDiscovery process is perhaps the most at risk to that kind of intrusion. First, valuable data is collected by clients, often without confidential and sensitive information removed. That data is then transferred to the law firm and, from there, sent onwards to the firm’s tech team and/or external vendors. The information is loaded onto a review platform and reviewed for responsiveness and privilege, after which it’s produced to the other side—sometimes through a secure online transfer, sometimes through hard drives sent through the mail. Every time that information is in transit, it’s put at risk.

Cloud-based discovery solutions can help protect against these risks. A secure, cloud-based platform that encrypts data in motion and at rest can provide important safeguards against hackers. When data is stored on the cloud, permission-based access can be used to make sure information is retrievable instantly, to those who should have it, without requiring endless reproductions. Productions can be shared with outside parties via a secured download link that will automatically expire after a specified time.

Finally, by hosting information in one centralized hub, you can entrust much of the security infrastructure to the experts, instead of having to build and maintain your own systems. All in all, secure, cloud-based discover means fewer opportunities for data to be put at risk.

Controlling Costs While Getting Your Money’s Worth

The growth of eDiscovery is a major contributor to expanding litigation costs. One of the most expensive part of the discovery process is the attorney and paralegal hours required to review documents. But another major cost center is eDiscovery vendors.

eDiscovery pricing is notoriously opaque. Vendors often treat their pricing as trade secrets, leaving buyers in the dark as to how their cost structure compares to the rest of the market. As a result, many pricing schemes in the eDiscovery services industry are based not on the value provided, but the max clients are willing to pay. Hidden costs—$500 for rushing an upload here, extra fees for customer support there—can quickly push projects over budget. Meanwhile, the lack of market transparency leaves many clients unfamiliar with what’s a fair rate—and slow to recognize when they’re getting a bad deal.

eDiscovery pricing should be transparent and predictable. Unfortunately, that’s rarely the case. Here’s a quick overview of the hidden costs that can arise during discovery.

Service Providers

These are the old school eDiscovery vendors, the companies that use Relativity and similar tools to manage the discovery process. Hidden costs include:

  • Data loading fees
  • Database setup and training
  • Advanced analytics fees
  • Seat license fees
  • Storage fees
  • 3rd-party production fees
  • Database restoration
  • Native processing
  • Project management
  • Minimum invoicing

Total cost: $300-$500 per gigabyte.

Vendors-in-the-Cloud

The cloud is revolutionizing discovery, but cloud-based vendors still have many of the hidden costs of traditional vendors. These include:

  • Per-project minimums
  • Extra costs for admin seats
  • Extra costs for “data reduction”
  • Project management fees
  • Downtime for manual
    ingestion
  • Hosting overage fees
  • Minimum invoicing

Total cost: $75-$350 per gigabyte.

Legacy Software

You may think that legacy systems are “already paid for,” but maintaining aging infrastructure while putting up with outdated software means your costs can quickly add up. Costs such as:

  • Server maintenance & security
  • Storage infrastructure
  • Slow time-to-review
  • Write-offs for poor quality
  • Inability to bill back to client
  • Lawyers “going rogue”
  • Operating system maintenance
  • Downtime for upgrades,
    installation

Total cost: $30-$75+ per gigabyte.

Discovery Automation

With Logikcull’s Discovery Automation, there are no hidden costs. For $40 a gigabyte, you get a fully automated discovery solution with world-class support. That means:

  • NO user limits
  • NO matter limits
  • NO production limits
  • NO onboarding fees
  • NO training fees
  • NO in-app chat fees
  • NO support fees
  • NO technology-assisted
    review fees
  • NO system maintenance
  • NO minimum invoices

Total cost: $40 per gigabyte per month.

eDiscovery Software Checklist

When evaluating eDiscovery solutions, ask tough questions to ensure that the software will fit your demands for the long-term, whether it is ongoing litigation, or preparing your firm, company, or organization for the legal and regulatory challenges your digital data collections create. Here are some important questions to ask any potential technology partner for litigation:

  • Is the workflow design and methodology flexible and adaptable to your needs?
  • What processes are automated? When would you need to rely on a third-party or vendor?
  • Will the vendor be around for years? Remember your case might be around for a long time.
  • Is the application easy to use?
  • Can projects be started quickly or will you be stuck waiting for someone else to process and ingest your data?
  • Is the software defensible in court, if necessary, or is it a mysterious “blackbox” algorithm?
  • Does the platform protect your data when in motion and at rest?
  • Can the software scale easily to handle growing case volumes?
  • How fast is the system?
  • Is the workflow flexible enough to handle different case and matter types?
  • What is the pricing structure? What is include? What are the hidden costs?