Translation Required: E-Talk

New e-discovery products are coming to market on almost a weekly basis. They serve different functions and fit into different parts of the EDRM model (notionally being: preservation, identification, collection, processing/culling, review, and production). In researching these options, we are learning that the terminology used by forensic companies is often as diverse as the products they are selling. 

In particular, the term “review” is causing some confusion. In the legal context, “review” means the fifth stage in the EDRM model referencing the “lawyer review”. This is the phase after collection and processing/culling when lawyers review and code the records for relevance, privilege and to issues codes. At the review phase, we look for a robust review platform that allows customized coding fields and the integration of near de-duplication and/or concept clustering software. These features save our clients significant time and money as they avoid a linear review. 

However, in the forensic context, “review” often means the ability to view records (images or in native format) during the early case assessment or processing/culling phases. 

Does this potential conflict in e-terminology matter? Yes.  Suddenly, a solution billed as “end to end” is actually an early case assessment or processing tool – one which will require an export of data to an appropriate (but different) review platform down the road. This can mean an increase in time and cost for the litigant company – the one that believed it had purchased a single “end to end” e-discovery solution.

The lesson learned is this – ask lots of questions and clarify the terminology at every stage. Alternatively, call Wortzman Nickle and we’ll help you with the e-translation.

To In-source E-Discovery or Not – A Series of Corporate Questions

Since e-discovery is clearly here to stay, should its processes be handled internally or outsourced, or a combination of the two?

Many of Wortzman Nickle’s corporate clients are facing this dilemma. Finding the right answer is not simple, requiring a combination of legal and technological experience, plus top-down/bottom-up corporate initiatives.

The bottom line? Get everyone speaking the same language (not an easy task) and ask lots of questions, including the following:

1.         What is the volume of litigation in the corporation – can the expense of additional technology and perhaps staff be justified?

2.         What e-discovery expertise do existing in-house counsel and staff have?

3.         Who is available to project manage the e-discovery processes as well as any technology purchased for in-house use?

4.         Are there people in-house with an ability to stay current with legal developments and new and emerging technologies?

5.         How is employee productivity going to be impacted?  Legal and IT professionals, despite having e-discovery expertise, may be too busy to take on the entire process on top of regular responsibilities.

6.         What e-discovery expertise does external counsel possess?

7.         What technology will best work with the existing IT infrastructure?

8.         Does the corporation need an “end to end” solution to manage preservation,  identification, collection, processing/culling, review and production of records, or will some aspects of the process (ie. processing and/or lawyer review) be outsourced depending on the file?

9.         Will the solution you are contemplating allow for valuable software add-ons when required, such as concept-clustering or near de-duplication software, which may significantly simplify and reduce the costs of the lawyer review stage?

These questions all require careful consideration.

Selecting the right technology solution is central to the decision-making process. Many of our clients are reporting that they are overwhelmed with options, receiving numerous calls per week from forensic and e-discovery vendors wanting to pitch their in-house e-discovery solutions. 

How to best navigate these calls?  Wortzman Nickle can assist you. We are speaking with many of these companies to better understand the strengths and limitations of the various products and where they fit into the EDRM (Electronic Discovery Reference Model).  One cautionary consideration: an “end to end solution” may not be what it appears, so ensure your terminology is clear and evaluate your options carefully.

In the end, there are many solutions available. For some corporations, some aspects of the e-discovery process can be effectively managed in-house, while other processes may be better outsourced, depending on the litigation. Mostly commonly, it is a hybrid of the two that works best for most companies – providing both the stability and cost-effectiveness of in-house capabilities with the flexibility to apply new technologies as required.  One size does not fit all.