UNIVERSITY OF HOUSTON SUMMER III 2010 – 5297 E-DISCOVERY Vendors!

E-discovery Vendors? Production of electronic documents and data in litigation often requires the assistance of an outside vendor to retrieve the documents and/or data and to put them into a reviewable format. WHO?

The E-Discovery Team Client  Owns Risk, Pays Costs, Risk Decisions  Knows ESI best, has IT resources  Ability to move early and quickly Counsel  Strategic Legal Knowledge  Familiarity with Court  Knowledge of legal issues in E-Discovery E-Discovery Tech Vendor[s]  Powerful technology options  Ability to apply resources as needed  Experience in processing ESI  Expert testimony in E-Discovery matters Discovery Management  Develops & Manages Discovery Plan  Activities  Resources  Schedule  Identifies Risk & Cost Issues  Coordinates Discovery Team Client 3 Counsel 2 1 E- Vendors Discovery Management

What is an E-discovery Vendor? Someone who can:  Assist lawyers and clients in obtaining electronic data in litigation.  Get the (right) data/documents to opposing counsel, the court, and the trial team involved with the litigation.  Work with a client’s IT staff to locate documents and minimize distractions to the operation of the company.  Preserve the documents in a “pristine” form so that math can be checked, if necessary.

Current Status Today the e–discovery space is filled with consultants and vendors who offer a range of e– discovery services from traditional scanning and coding to complex sophisticated methodologies and technology solutions. No single vendor can deliver a cost–effective solution for every client or case. Challenges exist with the lack of standards and quality of services in the e– discovery field.

Current Status How do you evaluate different vendors, each with strengths and weaknesses, using different pricing structures?

Current Status Two steps: Step One: Thorough (read: time–consuming) due diligence of vendors who offer e–discovery services and technology solutions.

What do you ask? Company background. Bona fides like services, experience, pricing, facility and systems security. Information about data processing capacity and methodologies. Information about the online review tool.

What do you ask? Show them this diagram…

What do you ask? What type of services do you provide?  Consulting/Professional Services  Data Collection Services  Data/Recovery/Forensics  Hosting/Review/Production/Delivery  Other Services – like copying or coding

How do you ask? Two levels of information: one for the partners, one for the paralegals. WHY? Sample data set, but “just say no” to Enron and Bill Gates. Tour of the facilities, if possible. References in your shoes. Ask about failure modes… and anecdotes.

How do you ask? Ask about competitors and how they match up. Ask about particip ation in industry groups:  ARMA.  Socha-Gelbmann or EDRM.  Sedona Conference Testifying expertise or court opinions validating their experience.

Understand the Vendor’s Process Assessment and Budgeting. Two factors: time and amount of data. Harvesting. Process of copying information from the client’s computers and data storage systems. Filtering. Development of terms to pull out documents and data that may be relevant. Formatting. Preparing the information for review and production.

Current Status Two steps: Step Two: Develop formal Request For Proposal (“RFP”), including  Volume & Type of Data  Data Collection Requirements  Data Culling and Processing Requirements  Number of Users Involved  Outside Access Requirements  Production Requirements and Deadlines

Learning from the RFP A good RFP process  Clarifies the project scope and specific requirements, for both clients and prospective vendors.  Forces you and the client to think what types of data you are dealing with…  Provides for an “apples to apples” comparison.  Helps create a common language with the vendor and your client.  Points out weaknesses in YOUR approach and the ways to reduce costs.  Ferrets out vendors who will be difficult.

Sedona Sez… Sections of a good RFP include:  Project Overview.  Organization from the Client and Outside Law Firm side.  Requirements (remember: be real specific here).  Definitions (from Sedona or other places).  Vendor Assumptions, Structure, and Approach on Project.

Sedona Sez… Sections of a good RFP include:  Quality Assurance (particularly with respect to privilege and confidentiality).  Pricing Models (and Alternatives).  Vendor Recommendations.  Vendor Qualifications and References.  Follow-up Processes.

Questions to ask here… How do you handle duplicate documents? Near duplicates? How do you handle unusual documents? (e.g. proprietary software) How do you integrate with paper document production? How do you minimize the “touches?” What form of production will you use?

Questions to ask here… What about privileged documents? How do you handle metadata? How do you handle co-counsel? Opposing counsel? Experts? Can you help with the privilege log? What is the failure mode? Who do I call late at night? (And how am I charged?) How do we develop a keyword list?

20 More questions… Bates Numbering Documents Set up time needed for litigation support database  Loading Documents (TIFF, PDF, native format)  Create field structure  Coding manuals  Metadata used to populate fields Guidelines for maintaining document integrity

Some additional concerns. Attachments: Electronic files appended to an message – or at least they should be. De-Duplication: The process of removing duplicate files from a document population. IS IT ACROSS THE POPULATION OR WITHIN A CUSTODIAN? String: A series of s linked together by e- mail responses or “forwards.” Conflicts – not quite an afterthought.

The Five types of E-Discovery Vendors One: The one-stop shop. Two: The two guys in the garage. Three: The copy service with a scanner (or people). Four: The FBI. Five: The litigation consultant.

The Five types of E-Discovery Vendors One: The one-stop shop. Two: The two guys in the garage. Three: The copy service with a scanner (or people). Four: The FBI. Five: The litigation consultant.

The Five types of E-Discovery Vendors One: The one-stop shop.  Strengths: Data migration less of an issue. Often well established in the field. Generally good at everything.  Weaknesses:No one is the best at everything. Hard to change their system without spending money.

The Five types of E-Discovery Vendors One: The one-stop shop. Two: The two guys in the garage. Three: The copy service with a scanner (or people). Four: The FBI. Five: The litigation consultant.

The Five types of E-Discovery Vendors Two: The two guys in the garage.  Strengths: If it works, could represent significant cost savings (particularly in collection and processing).  Weaknesses:If it works! Testifying issue.

The Five types of E-Discovery Vendors One: The one-stop shop. Two: The two guys in the garage. Three: The copy service with a scanner (or people). Four: The FBI. Five: The litigation consultant.

The Five types of E-Discovery Vendors Three: The copy service with a scanner (or people).  Strengths: For simple cases, significant cost savings. Often, “quick and dirty.” Good for hosting and production.  Weaknesses:No expertise in e-discovery. Limited help on consulting/testifying issues. May be prone to mistakes.

The Five types of E-Discovery Vendors One: The one-stop shop. Two: The two guys in the garage. Three: The copy service with a scanner (or people). Four: The FBI. Five: The litigation consultant.

The Five types of E-Discovery Vendors Four: The FBI.  Strengths: Very good for forensic matters. Great eye for detail.  Weaknesses:Most expensive, generally, per gigabyte. Not able to “ratchet” it down. Not necessarily the best for production issues.

The Five types of E-Discovery Vendors One: The one-stop shop. Two: The two guys in the garage. Three: The copy service with a scanner (or people). Four: The FBI. Five: The litigation consultant.

The Five types of E-Discovery Vendors Five: The litigation consultant.  Strengths: Has better sense of litigation needs. Can be good project managers.  Weaknesses:Jack of all trades, master of none. Can just creates another layer of consultant.

Being successful on these issues… Stay ahead of the knowledge curve. Do not make selection of an E-Discovery vendor an ad hoc process. Avoid the super center approach to litigation support vendors. Do not make case-specific decisions in a vacuum.