In our latest podcast episode, Ann asked guest experts Andrea Pileggi and Kevin Gerami to answer your eDiscovery questions. Andrea and Kevin are with Ricoh, a global leader in technology and service delivery, that offers the best in class technology and service-based eDiscovery solutions for litigation inside of law firms, as well as corporations. Andrea is a Senior eDiscovery Consultant and Kevin is an eDiscovery Account Executive in Ricoh’s eDiscovery division.
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How is it spelled? Is it e-discovery, eDiscovery, or Ediscovery? All of them show up as spelling errors in Microsoft Word. Can you explain exactly what eDiscovery is?
Kevin: It’s little e big D. It’s following the email trajectory. Email used to be E-mail and then e-mail, and Email. Now it’s just all little letters, email, and eDiscovery is in the little e big D phase of that.
What is eDiscovery?
eDiscovery stands for electronic discovery and is the electronic aspect of identifying, collecting, and producing electronically stored information or ESI in response to a request for production in a lawsuit or investigation. But in simpler terms, and most often when you’re talking about eDiscovery, you’re talking about eDiscovery software and processes. It’s really looking through electronic data and trying to find the most relevant to a particular investigation or litigation. Learn more about what eDiscovery is.
We don’t do eDiscovery at our firm. My attorney just wants me to print out all of the emails so he can read them. It’s so time-consuming! What can I do?
Andrea: That’s an interesting and frequently asked question, surprisingly. To keep it simple, the easiest way to address that would be to upload those emails via an FTP where a service provider could then load them into a review platform. It makes it much easier to review those emails.
It certainly offers enhanced security, which is a huge focus right now in the industry. You’ll also ensure that you’re not losing any information or metadata inside of those emails. And yet you can still apply markups, redact anything that would be considered privileged, etc. There is also advanced analytics out there in the industry that allows email threading so you’re not rereading the same email 50 times, which I can tell you from my own experience.
Kevin: I think they are asking for it in hard copy because they are probably intimidated by the technology or their lack of knowledge about the technology. Certainly, a business partner can show them all the benefits that Andrea mentioned and the relative ease with which you can adapt to these types of tools to get those benefits.
Andrea: I think we’re also in an era where I don’t think there’s anyone who doesn’t have access to some type of a laptop or an iPad or something where they can review documents in that format digitally versus carrying around a banker’s box full of documents like the old days.
Ann: I tell people all the time when they tell me something like that they’re spending their time printing out emails or turning them into PDFs, and have taken away the advantage of having it electronically. And that’s why it feels so overwhelming. If they would just keep it electronically and review it electronically, then it wouldn’t be so overwhelming.
Kevin: They are dealing with the same kind of technology in their regular lives. They open up iTunes or Netflix and all their media is there and they can search it by the name of a song or the artist, or they can sort by the music genre or the date, like playlists of music from the nineties. They’re already doing these things on other platforms in their regular lives. That is no different from what they would be doing with these emails on these review platforms. They just assume that it’s going to be some scary monster and it’s not.
How does a paralegal move into a project manager role or another role with an eDiscovery vendor?
Kevin: They can do so by getting themselves educated, taking the initiative for that personal professional development, and familiarizing themselves with the subject. You can become a thought leader and somebody who can get things done within the firm.
Right now we’re seeing all kinds of people making choices to stay or leave law firms in the traditional in-office sense. If they have educated themselves on subjects like eDiscovery and become familiar with or partnered with vendors and business partners throughout their time at the firm, it is a very natural progression to go from inside a case support team or lit support team within a law firm into a company like Ricoh.
Find out more about the eDiscovery Boot Camp.
Ann: And does that prior experience lend well to their success? Does it help them in their role?
Andrea: I would say absolutely. Oftentimes, Ricoh will look for individuals that have that type of a background so that they can add not only the technical knowledge to weighing in on consulting and advising clients, but they also have the background from the legal perspective. This is something that a paralegal would definitely bring to the table over someone that does not have this type of background.
So I think that combination of paralegal, maybe senior paralegal, maybe senior litigation paralegal, is a very smooth transition from there into an entry-level project manager. And then once they become more comfortable, they can roll into more of a senior project management role, which is much more consultative in handling larger cases. Learn more about transitioning from a litigation paralegal to eDiscovery.
And then inside Ricoh, you can actually take it to the next degree, which would then be a solutions architect who drives the collaboration between the client, the attorney, the project management team, and the consultant themselves. They make sure that all parties are aligned. Having the background of a paralegal seems to be the absolute perfect foundation to launch inside of any eDiscovery service provider, like Ricoh.
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My attorney comes to me with a new matter and has a hard drive, a couple of laptops, and a cell phone. What do I do?
Andrea: The first thing you want to do is identify a service provider that has the expertise to forensically collect that data in a fully defensible manner and if need be, have the credentials to be able to testify to the process in which the collection occurred.
Ideally, the same service provider would also offer the ability to convert that data from those devices into a viewable format that can be analyzed for the most relevant information needed in that case and then potentially produced for trial. Having a business partner that can collaborate and consult and guide the client through that entire process will definitely drive some cost savings that give you the ultimate results downstream for both the attorney and the client.
Self-collection can be a dangerous game so seek out a third-party forensically certified professional company to work with. There are some corporations that have in-house, sophisticated forensic teams and are even some very large law firms that have the same, but if you don’t have that type of skillset and the ability to actually testify in a fully defensible manner as to how you went through the process of collecting – that can be a slippery slope and an expensive one.
Kevin: It’s not to say that there aren’t things that you can’t collect that you have to use a forensic collection for, but it is to say, you should talk to somebody who knows the difference in the distinctions. You need to make sure because we see it all the time. People say, well, I just had the client forward all of the relevant emails. Well, that’s a no-no and it’s important that you are talking to somebody who you may not end up doing any business with, in terms of that particular collection, but they’re going to help guide you through what is and what isn’t defensible and make sure that the time spent is time well spent and that someone can testify to the manner in which this was all handled.
Ann: So do you guys offer that? Can someone just call you up and say, “Hey, I’ve got this stuff that was brought in from the client” and you can give them that type of information?
Andrea: Absolutely. We offer forensic services as part of our portfolio. It’s not uncommon, whether it be a departed employee analysis that has to occur or just any particular type of litigation where the data sits on either an email server, hard drives, or external devices, and the communication that went on inside of that is going to be potentially relevant to a case.
I would also say don’t overlook the applications that people are now using that reside on cell phones or laptops, like WhatsApp, Slack, Teams, or Zoom, especially in this post-pandemic world. Most of us worked with remote tools and the chats that went on inside of that all become very much part of any type of evidence or eDiscovery.
When looking at the overall case and where the data needs to be collected from, if you’re going to make the decision that you’re going to do any type of self-collection, make sure that you have worked and consulted with a third-party expert that can rely on their own technical expertise that would give you some information that could potentially become relevant down the line.
We have a self-service platform that allows me to do most of the eDiscovery work in-house. But there have been times when the case got way bigger than expected, and then it was too late to send it out to a vendor. Is there a way to know when it should be outsourced or done in-house?
Andrea: There are two very different ways to look at it. You could have somewhat of a self-service tool that is what we would consider, not white glove – where you’ve got project managers and consultants holding your hand through the whole process and there are other scenarios where you have your review platform and your e-discovery tools in-house, but Marvin infrastructure, as a service.
But let’s say all of a sudden the case takes on a whole different face and it becomes a bear. You would definitely, never be too late to reach out to a vendor. Data can be migrated. But the rule of thumb is to collaborate with a service provider early on and often to minimize this common challenge.
Deadlines to offer recommendations come inside of the eDiscovery project budget and you want to be able to stay within those deadlines. If your business partner or the vendor service provider that you’re going to work with is aware and conscientious, they’re going to stay ahead of that, side-by-side with you to prevent you from going down a bad path or getting caught behind and having to go to the judge to ask for an extension.
Self-service tools are ideal for lots of different types of matters, but they don’t all offer workflow into a higher-level review platform such as relativity so your migration options always need to be considered. If you take the time to collaborate with that service provider, they may be able to tell you what option to try, but always allow yourself a migration strategy should the case grow beyond what you’re comfortable with in-house.
Kevin: There are tools like Relativity that are kind of ubiquitous and you’re not going to be hard-pressed to find a co-counsel or opposing that is unfamiliar with relativity.
But that self-service tool you might be using from that small vendor or even big vendor that you may be using may not play well with others. It may not be easy to work in conjunction with opposing, co-counsel, or a third party and you want to keep those kinds of things in mind. Grab this free eDiscovery tool for Litigation Paralegals.
Is this a self-service tool because you yourself will be the only ones who really need to play in it, or are you going to need to collaborate outside of your own little group? And those are considerations that if you’re engaging someone early enough on, they will be there for you to walk you through that, should those things come up later in a case, and not at the onset.
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Andrea: If somebody is faced with this type of a situation or dilemma, and they’re not quite sure how much data they’re going to have it’s not uncommon to consult a service provider. Oftentimes, I’ll speak with an attorney or paralegal when they’re just not sure what’s coming and they’re trying to decide what is the right solution or what type of a platform is needed.
We don’t want overkill, but at the same time, we don’t want to get caught with our pants down. When contacting a service provider and speaking with a consultant, like myself, there isn’t a fee to reach out and say, “Hey, I have this case and this is coming. I’m not really sure what it’s going to look like. I don’t know how much data. Can you walk me through some options where I don’t get put in a corner?”
These are conversations I have every day with clients or prospective clients. You don’t want to get caught in a corner and by reaching out to a service provider that’s willing to offer non-fee-based consultative service you can’t go wrong.
At Ricoh, we take consultation phone calls and emails for free. We’re happy to speak with you and offer whatever guidance we can. Initially, we’re really just trying to listen to what you have going on from a challenge perspective, and then potentially come up with a solution that may or may not result in some type of a fee-based engagement, but please feel free to reach out.
Kevin: You shouldn’t have to budget for brainstorming. It should just always be something you are doing and there shouldn’t be a cost factor for brainstorming to make the right decision. If there are dollars and cents on the line and the meter is counting the minutes and hours you spend brainstorming, that adds some pressure to make the wrong decisions.
What are your top tips for reducing errors during document coding, e.g missing important documents or inconsistent coding? Are your tips different for a single person reviewing documents vs. a team of reviewers?
Andrea: I conferred with one of our top project managers on the Managed Review Team for our organization who is highly respected and is quite technical and there are two top priorities when they conduct a review.
- Encourage an active question and answer and dialogue with counsel and among the team. Along with that, you want to do some QC feedback to ensure that everyone is on the same page and not misunderstanding anything with the analysis that’s going on.
- Fully leverage all the technical tools that are at the disposal of the service provider to ensure that you have an accurate, efficient, and consistent review outcome. This includes maximizing your review platforms such as relativity and the features inside of that, as well as some custom tools and third-party applications.
Any managed review service providers should be utilizing active learning and the most advanced analytics that are out there to get through the review process quickly and efficiently while saving as much money for the attorney and the client as possible.
What is CAL?
CAL stands for continuous active learning and is commonly associated with TAR (technology-assisted review). It’s basically an algorithm that is created by technology learning over and over and over. It’s reviewing and reviewing and measuring the results that it’s getting over and over based on key information that you’re feeding it, as far as search terms, keywords, etc., and develops patterns.
If I’ve reviewed a thousand documents versus the population of a million documents. I’m seeing the responsiveness to be 20% or 10% based on the terms I’m feeding it. CAL is actually creating an algorithm in which you can make a decision on how much of a linear review (eyes-on) you actually need to do, versus just assuming that you need to do all of that physical review, which is extremely expensive and time-consuming.
Kevin: Most people are familiar with this more than they realize. In the same way, Netflix recommends movies for you because of what you have given a thumbs up to or a thumbs down to or movies you’ve told it you like when you first sign up – that is active learning. As you watch movies and TV shows and tell them, you like them and dislike others, it finds the commonalities between them and makes recommendations.
You’re providing that kind of seed information on what is relevant and isn’t relevant to that AI, which will then in the background start pulling documents that look more and more like what you’ve given a thumbs-up to. This might seem like a foreign subject, but it is already in our lives in other ways.
I’ve had a bad experience recently with an eDiscovery vendor because when all was said and done we’d spent almost twice what the original estimate was. Can you give me some red flags to look out for next time I’m choosing a vendor?
Andrea: If it seems too good to be true, it usually is and the devil is always in the details. That is quite true in this industry as you determine what service provider you want to partner with and really try to evaluate the true cost and effective solution that you’re going to end up with.
I find a lot of attorneys and organizations are very attracted to a low hosting rate and they sometimes lose sight of all the details and hidden costs that aren’t as bold. Yet as the case is progressing, those numbers grow exponentially and the hosting rate is irrelevant as you’re getting excessive costs in project management.
For example, there are organizations that bill project management time differently. Some companies will charge for a project manager the minute they answer the phone whereas in other companies, like Ricoh, if a project manager is contacted by a client and it’s a simple call, the clock isn’t necessarily “ticking” until the service request is something that the client could do themselves, but yet they’re actually asking the service provider to provide a service. Something as simple as just how project management fees are incurred could be the difference between hundreds of dollars or thousands upon thousands of dollars.
There are also cost differentiators in how data is called and processed and produced. All of those factors can really create a significant difference. If you’re not really looking carefully at the overall estimate that you’re given when looking at engaging with a different service provider from one case to another it can be daunting.
Make sure that you’re really looking at all the details. When you’re specifically looking at managed review, make sure you’re talking to that service provider to find out how early on in the process they are willing to start utilizing different types of AI, like CAL or TAR, as previously mentioned.
70% of the overall spend on any given matter from an eDiscovery perspective will be consumed inside of the review process. You want to make sure that you’re proactively working with a service provider that knows your expectation is to use AI and how early you are planning to turn that on.
This could be a very big cost difference in how you’ll appear to your client at the end of the day when all the invoices are totaled.
What kind of trends do you see in eDiscovery? What things do paralegals, attorneys, and other legal professionals need to be prepared for in the future?
Andrea: We’re starting to see a lot more corporations embracing the concept of eDiscovery and they’ve explored the idea of investing in their own in-house litigation teams. They’re bringing in the technology and the resources and not necessarily relying as much on outside counsel to provide that type of service when they’re facing litigation.
We’re seeing the implementation of AI and advanced analytics much earlier inside of the eDiscovery phase for more cost-effective pricing models on the front end of things versus on the tail end of it.
We’re also starting to see different pricing models such as subscription-based pricing, where firms are able to leverage lower costs across all matters by establishing tiered pricing. This allows them to even offer those fluctuating, but lower costs as they’re generating invoices for their clients.
For example, if any given month a law firm has a significant amount of data that they may be hosting across multiple matters that take them into a lower-tiered price, they can extend that directly to their client, as long as that client understands that it is somewhat of a variable cost. Never before have we seen pricing models where we were able to extend that to clients that want to be direct-billed.
Additionally, from the forensic collection perspective, the analysis of user apps has really increased significantly with Slack, WhatsApp, Microsoft Teams, Zoom, etc. People are using a variety of different platforms to communicate business-related discussions that can be relevant for collection and analysis.
We’re developing a better understanding of the concept of information governance as it relates to when a case or the anticipation of potential litigation could occur and how they need to start governing data inside their organization should they be faced with litigation down the line.
Those are primarily the trends that I’m faced with day-to-day.
A New Way of Working
Kevin: The pandemic has created some new trends including a new way of working, and peripherally from the great resignation comes “the great negotiation” and offering ultimatums to their employers, “I will only continue to work here if I get to work from home”.
In that case, working from home means that both law firms and corporations have to start considering where the data is. Where is client data being looked at? Where are we collecting the data? Who has access to the data? Who can see it? Security questions.
Attorneys are working from home. Paralegals are working from home. Legal secretaries are working from home and their clients are also working from home. This brings many questions as a result of this new world of work.
But I don’t know that that’s going away as we hopefully move forward from the pandemic. I think it might be just the new way we work. There’s going to be a big segment of our workforce that works from home, and it’ll be important to make your discovery and your cybersecurity and your information governance decisions with all of that in mind.
Andrea: I’ve seen inside of our own organization, new training curriculums that have become mandated, as a result of this new way of work where we have to actually go through training online and certain case examples are given to us.
Someone’s working in an airport. They’re on a conference call, working on their laptop, sending text messages. They’re testing us to see if we understand how much information is considered private or how are we governing the way in which we’re communicating. It’s interesting to see how much or how little we really know about this area. I think there are very few of us that can honestly say that we’re all set there and that we don’t have a lesson or two to learn.
I would say not only is this a trend as it relates to eDiscovery, but I think in light of how we work, everything will be much more scrutinized, not just electronically, but communication in general.
If a paralegal gets an e-discovery project dumped in their lap, they don’t know what to do and how to do it. Let’s say they’ve engaged you two as the service provider, is there a way that you help get them educated? They don’t know what they’re doing. They hand over the project to you, but that’s not going to be a long-term solution. Right? They’ve got to start learning what happens from there.
Andrea: If someone is looking for basic questions, they can feel free to reach out to us and if it’s something that I can answer that’s outside of matter engagement, we’re happy to point someone in the right direction and offers some suggestions. We’re here as industry experts and very happy to offer as much help as we can.
Now let’s say we’re in the midst of a contract where we’re supporting a corporation or a law firm on any given matter and it becomes obvious that some of the team needs additional training, either inside the review platform or how to understand the use of something like email threading, information on an advanced analytic or tips for reviewing documents that could make a significant difference. All of that type of training is something that we offer to our clients as a value add to what we do.
Additionally, we do offer CLEs all year. We work collaboratively with the HR department of either a law firm or corporation to make sure that we have the registration set up inside the given states where people will be applying and work together to offer lunch and learns, as well as virtual events.
Kevin: Just ask when reaching out to a service provider, “Will you be billing me if I want to talk through or get some education on this, that, or the other thing?” There is no vendor that will be unhappy to receive a call from a potential client, even if that potential is down the road.
We’re all happy to take those calls but just ask straight away. “Can you give me time to talk me through this? Time to educate me on the options? Time to make an informed decision or will you be billing me for that time?” If the answer is that there are going to be some consultation costs, project management costs, tech time costs, or advisory costs, then it’s up to you to decide whether you want to pay for it or not.
In our case, it is an investment into you, into the relationship, and into the client to get you educated. It stands to benefit the vendor as much as it benefits you, so feel free to call and ask questions. You can find our email contact information below.
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Contact Our Guest Experts
Andrea is a senior eDiscovery consultant with Ricoh, a global leader in technology and service delivery.
Kevin is an eDiscovery account executive with Ricoh, offering service-based eDiscovery solutions for litigation.
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Meet the Author
Ann Pearson is the Founder of the Paralegal Boot Camp, and host of the Paralegals on Fire! Podcast Show, and passionate about promoting the paralegal profession.
Ann spent 20 years working as a paralegal manager and a litigation paralegal before opening the Paralegal Boot Camp in 2010. Her training programs focus on adding immediate value to a paralegal’s career and bridging the gap between what a paralegal learns in school and what they actually do on the job.
When Ann is not working, you can usually find her somewhere near the ocean, either boating, scuba diving, or rescuing sea turtles.