The View From An Innovator In E-Discovery And Document Review

Tuesday, October 4, 2011 - 01:00

The Editor interviews Ashish S. Prasad , Founder and CEO, Discovery Services LLC.

Editor: Please give our readers an overview of your career and background.

Prasad: I am the founder and CEO of Discovery Services LLC, which is a managed document review, contract attorney staffing and electronic discovery company. Prior to founding the company in 2008, I was litigation partner at Mayer Brown LLP, and founder and chair of the Electronic Discovery and Records Management Practice. I joined Mayer Brown in 1994, just after my judicial clerkship.

Over the past decade, I have published and spoken extensively in the areas of e-discovery, document review, pretrial litigation and case management. For example, I served as executive editor of the first edition of The Sedona Principles: Best Practices for Addressing Electronic Document Production, co-editor in chief of the Practicing Law Institute treatise Electronic Discovery Deskbook , and author of over a dozen articles on these topics. I have also given over 100 continuing legal education seminars in the U.S., Europe and Asia.

Editor: Discovery Services LLC is actively involved in the new world of e-discovery. Please describe its services, and what differentiates it from its competitors.

Prasad: Discovery Services differs from other e-discovery providers in several respects. First, being founded by a litigation partner from a major international law firm, we have a better understanding of what corporate clients and law firms need - reliability, defensibility and accountability in a cost-effective way. I personally stand behind every project that we complete. Second, we have an extensive quality control process for document review, which relies on well-defined procedures for recruiting, training, testing and managing the attorneys who perform document review. Third, our quality control procedures permit me to testify as an expert before courts and regulators, in situations where such testimony is required, that the review was done in accordance with legal requirements and best practices.

Fourth, we offer a variety of innovative pricing mechanisms - for example, per gigabyte or per document pricing - in addition to hourly pricing, which provides more cost predictability to corporate legal departments and law firms in appropriate situations. Fifth, we integrate with the legal team so that the document review team works smoothly with the larger discovery team as well as the larger trial team. Finally, Discovery Services is a minority-owned vendor, which helps corporate legal departments and law firms meet supplier diversity goals.

We currently have a document review center in Washington, DC, where we handle review projects originating throughout the country. We intend to open an additional center in New York City in 2012, and are also considering whether and when to open additional centers in other cities, such as Chicago and Houston.

Editor: Why did you leave Mayer Brown to start Discovery Services?

Prasad: When I became a partner at Mayer Brown in 2003, I formed the firm's Electronic Discovery and Records Management Practice and built it into a multimillion-dollar per year practice. We focused on helping corporate legal departments develop policies and procedures for e-discovery and records management, so they were prepared from a compliance standpoint and for when litigation hit. Thus, from the outset, I worked closely with in-house counsel and corporate legal departments to strategize about cost reduction while never losing sight of the end-game - to win the case.

E-discovery was relatively new at that time, and my group was among the first and most influential practices devoted to e-discovery and records management. Working closely with legal departments of large U.S. and global companies provided deep knowledge of current corporate needs that were not adequately being met and insight into future requirements as data volumes exploded, the significant risks and legal standards for dealing with electronic data emerged, and new technologies were developed and widely adopted. I thought that starting my own company would be a good way to service those needs, especially since many are in areas on which a traditional law firm would either not want, or not have the ability - from a cost and pricing structure - to focus.

Editor: I understand that Discovery Services is a preferred vendor for about a dozen large companies and law firms. What accounts for your success during difficult economic times?

Prasad: Economic challenges have both hurt and helped Discovery Services. On the downside, some corporate legal departments and law firms were less willing to select new vendors, which created challenges for us during 2008-09. On the other hand, the widespread need to reduce litigation costs provided opportunities for us, because our pricing model was attractive. Our processes are both quality controlled and cost effective, which the legal market currently needs and will continue to demand. Also, since I had a track record in the electronic discovery and legal industries, I was a known commodity that people were comfortable with, which helped and continues to help me obtain client engagements. Once given the opportunity to demonstrate our value - in the quality and speed of our work at a competitive price - clients came back to us for future matters and eagerly recommended us to their peers. For that, I am incredibly grateful.

Editor: What are key developments in e-discovery for corporations? How has automated review technology affected the cost and accuracy of document review?

Prasad: The e-discovery area is rapidly evolving, and there are many changes affecting corporate clients, law firms and service providers, including the continuing growth in the volume and varieties of discoverable corporate data. Increased volume puts pressure on the discovery process, creates the risk of errors that can unfortunately lead to high-profile and case-crippling sanctions - especially in the processing and review phases - and increased discovery costs. We anticipate that data volumes eligible for e-discovery further will increase as more companies move to the cloud and adopt new technologies like social networking tools, blogs, instant messaging applications, and collaboration tools like internal wikis or SharePoint platforms.

On the positive side, recent developments in technology have improved the efficiency, enhanced the quality and reduced the costs of discovery processes. For example, automated review technology can help swiftly cull and reduce the volume of data that must be reviewed by lawyers, as well as improve the efficiency and accuracy of the reviewers. Technology is only a tool that is only as good as the humans applying it, but when used properly, it can be a critical part of the review and quality control process. This is a good development.

Editor: What changes do you foresee for the future of the law of e-discovery?

Prasad: The body of case law on the duties surrounding e-discovery process will expand, especially in areas such as intellectual property, employment, governmental investigations, pharmaceutical and certain regulatory proceedings (like Hart-Scott-Rodino second requests). The courts will continue to emphasize: the need for parties to cooperate during the Rule 26(f) conference and elsewhere in the discovery process; the need for follow-up and documentation in litigation hold efforts; the limitations on discovery imposed by the proportionality principle of Rule 26(b)(2)(C); and the need for validation and defensibility of search strategies used to cull data for review.

Further, there are productive and widespread educational efforts from The Sedona Conference and the Practicing Law Institute, among many others. Courts around the country are also becoming more knowledgeable, and are expecting that counsel have baseline knowledge of e-discovery issues, with the Seventh Circuit's Electronic Discovery Pilot Program being an excellent example of increased judicial involvement and expectations in this area.

Over time, technological advances will reduce the burdens and costs resulting from the increasing volume of data entering the discovery process, especially with respect to the processing and review of data. For example, as corporations continue to move to the cloud, vendors may develop better tools for processing, hosting and review of data. In turn, case law and attorney practices will evolve along with technologies, and the e-discovery practice will grow in scope and complexity. We have already seen the emergence of lawyers who specialize in e-discovery at corporate legal departments and law firms, and I expect this will be a continuing trend as demand increases.

Editor: I understand that you were one of a few select e-discovery thought leaders invited to participate in the recent Federal Rules Advisory Committee meeting, where the judges that make up the Rules Committee sought input on possible amendments to the FRCP addressing preservation requirements and sanctions. What is your view on whether the rules should be amended?

Prasad: My view is that there should be amendments to the rules with respect to preservation because, among other reasons, organizations - especially corporations - are facing substantial burdens and costs with respect to preservation that result, in significant part, from the considerable uncertainty that currently exists in this area.

Editor: What are some examples of effective, proactive initiatives for corporate legal departments in the area of e-discovery?

Prasad: Corporate legal departments often proactively establish e-discovery programs that include policies, procedures and training for in-house lawyers and IT professionals, outside counsel and vendors. Such programs can improve the quality, consistency, efficiency and cost-effectiveness of discovery efforts and greatly mitigate the litigation and other risks associated with the discovery process. Many corporate legal departments have established preferred vendor relationships to handle various aspects of the e-discovery lifecycle, including data processing and hosting, document review needs for litigation, and general counseling services. These preferred vendor programs allow vendors to offer preferred pricing based upon long-term relationships and to "partner" with the corporate client so they learn the client's people, processes and systems. This avoids the costly "learning curve" with disparate vendors on each new case. Also, companies can rely upon the preferred vendor to bring best-of-breed technologies and cutting-edge techniques to every case, no matter what outside law firm is involved.

Editor: You are an adjunct professor of law at Northwestern University Law School, and you have published many articles and tought CLE courses on pretrial litigation, case management and e-discovery. How do teaching and writing help you create value for Discovery Services clients?

Prasad: By keeping active with my academic and teaching interests, I am better able to work with clients to achieve their broader litigation or investigation goals, which also builds on my experience at Mayer Brown addressing these same needs. My writing and industry activities also allow me to keep abreast of developing best practices - and in some instances help to create them. Being invited to participate in the Federal Rules Advisory Committee conference in Dallas is a great example: by participating in that effort, I had the opportunity to provide "real life" insight to the judges that are creating the future rules, so they understand the challenges my clients face and hopefully enact rules to address them. In short, I can better serve clients as a result of these activities.

Editor: What advice do you have for young attorneys and law students based on your experience?

Prasad: It is important to stay up to date on the different areas of the law that affect your practice as a young attorney, or your intended practice if you are a law student. Networking is especially important during the early years and can open doors in the future. While success depends primarily on the caliber of an attorney's work, there is no substitute for hard work, attention to detail and willingness to devote the time required to provide the highest level of client service.

Editor: Do you miss litigating?

Prasad: I do, in some ways. But it is very satisfying to thrive in the area in which I have chosen to devote most of my professional time over the past decade. Since corporate legal departments and law firms continue to need assistance with e-discovery and document review, I hope to continue adding value.

Please email the interviewee at aprasad@discoveryservicesllc.com with questions about this interview.