Editor: Please tell us about VeDISCOVERY’s history. Why did the company decide to split from Visual Evidence?
Wetzel: In an ever-changing and still-developing industry, I am proud to say that Visual Evidence/VeDISCOVERY is celebrating its 25th anniversary of providing litigation support and eDiscovery services to law firms and corporations across the country. We have recently expanded internationally to Singapore and will soon be operating in the EU as well to address data security concerns arising out of their privacy laws.
All along, Visual Evidence has been providing trial graphic and courtroom technology services. Seven years ago, through a technology acquisition, we added the eDiscovery segment to meet the needs of our clients. Most recently, we split our company in order to meet growing demands of corporate clients. In creating VeDISCOVERY, we segmented an aspect of the business that focuses exclusively on eDiscovery products and services, particularly for corporate clients.
Editor: We understand that you have broad experience as a litigator in the public and private sectors. Please tell us about your background and your role at VeDISCOVERY.
Wetzel: During the first 15 years of my legal career, I concentrated on criminal investigations and litigations on a local, state and federal level. I then moved to the private sector, litigating antitrust, environmental, class-action and product liability matters across the country. My work for corporate clients involved receiving electronic discovery requests from adversaries or government agencies as well as responding to subpoenas – all of which required working with electronic discovery issues and processes.
My role at VeDISCOVERY is twofold. First I consult with our corporate clients and help them develop proactive eDiscovery strategies and plans. This has recently expanded to include critical concerns relating to FCPA compliance, fraud investigations, trade secret matters and internal audits. Second, it is my job to establish the direction of VeDISCOVERY, with respect to both product development and best practices that meet evolving corporate needs.
I also have served as special master, eDiscovery coordinator and expert advisor and witness on a number of matters for clients as well as in connection with court appointments.
Editor: We understand that you are pursuing an LLM in intellectual property. Does that pertain to your work with eDiscovery in IP cases?
Wetzel: It does. IP and eDiscovery issues are best managed by an advisor with specialized educational and professional training who understands the specific subject matter and, thus, can better address a company’s need to capture and manage information. In addition, other IP matters, such as patent cases, require knowledge of concepts, specialized vocabulary and an understanding that managing electronic discovery for IP cases requires a particularized approach.
Editor: Why should companies bring eDiscovery functions in-house? What are their critical needs, and what challenges do they face?
Wetzel: There are four basic reasons for a company to bring eDiscovery in-house: creating efficiencies, controlling or budgeting costs, ensuring data security and minimizing spoliation risks.
A key point is that it facilitates a repeatable process; the company’s legal and IT departments can then create efficiencies in the handling of ESI (electronically stored information) through all phases of the EDRM model. Efficiencies inevitably emerge from a reduced need for outside vendors and counsel for eDiscovery, which, in turn, reduces the need to keep re-collecting the same data for multiple matters. Thus companies can better establish targeted budgets and improve predictability of cost.
As for data security, by creating an internal, streamlined flow of data through all phases of the EDRM, companies can reduce exposure to risks created by transferring data to vendors and law firms. These efficiencies, plus greater knowledge of the company’s data through internal handling, naturally minimize the risk of losing, destroying and failing to identify relevant data – all of which can lead to spoliation claims.
The challenges of this process include balancing internal resources; defining the technology that best addresses company needs; and establishing a budget that validates the decision. Software, hardware, training, education, maintenance, security, ease of use and flexibility are some of the factors to consider when deciding whether to bring eDiscovery in-house.
Another important consideration is whether the company’s current data management applications can integrate with proposed eDiscovery solutions. Merging these systems is not as simple as purchasing and installing Adobe on the company’s PCs; it is a lot more complicated and requires a comprehensive understanding of relevant hardware and software. This is where IT and legal departments are becoming more collaborative. Legal defines what they need, and IT analyzes and determines how a potential strategy or technology will fit within the existing corporate structure.
Editor: What are the benefits of modular technology?
Wetzel: First, what we mean by a modular technology is the ability to handle all the different phases of the EDRM, either individually or collectively.
One of the challenges of eDiscovery is every company is unique. Some have been working on it for a while and others are just now coming to terms with it. Additionally, each company has different legal and IT strategies, technologies and processes. Some are addressing none of the EDRM or some parts of it, and a few address all of it. We feel one of the keys is to meet companies where they are.
Modular technology allows a company to take an incremental approach to bringing eDiscovery in-house. Technology has been in a rapid growth cycle for the past 24 months. VeDISCOVERY’s modular products are designed to alleviate the burden and costs of eDiscovery by addressing each and every step along the EDRM model.
Moving forward, the key capability will involve integrating various modules into one application. VeDISCOVERY is one of the companies that has been able to do that, thereby creating an efficient, secure and streamlined solution. While such integration is in process, technology solutions must comprehend that companies have pre-existing, and likely different, applications for data management, retention and security, so new applications must be able to talk to those already in place.
Editor: Who are the decision makers you are dealing with, and what are their primary budgetary concerns?
Wetzel: Certainly, legal and IT departments play a central role in these decisions, but other areas, such as HR, may get involved as discussions develop. Once it understands what needs to be done, each department will have different concerns, but the big concern is usually the amount of resources required, both in dollars and human.
Such expanded involvement in the decision-making process evidences the growing importance and impact of data management across corporate departments. While each company’s litigation needs are different, most typically enjoy an immediate cost savings of 50 percent or greater by eliminating a project-by-project engagement of vendors and outside counsel – at least until further down the path of eDiscovery. In other words, adopting a proactive technology approach can minimize costs right from the start.
Editor: Please talk about VeAGENT. Can offloading ESI relating to litigation holds enhance defensibility?
Wetzel: One of the great missteps in the eDiscovery landscape is focusing on reducing costs during review, which typically accounts for 50 to 75 percent of costs. The real focus should be on the early EDRM stages and reducing the amount of data that is collected and preserved. It simply stands to reason that if less is collected, then less will need to be culled, processed, produced and reviewed. This shift can have significant cost benefits.
Agent-based litigation hold technology, which VeDISCOVERY has, is the best way to do this. Agent-based means that an agent is remotely installed on any targeted custodian and, based on remotely administered criteria, it automatically and forensically collects and transfers the data to either an internal storage server or cloud-based storage for preservation. This technology takes the data out of human hands, thereby eliminating the inadvertent or intentional destruction of data and insuring that eDiscovery efforts are legally defensible.
This technology allows the client to forensically collect and process the data that has been identified as relevant and to export it directly to a review platform. It also allows a corporation to connect the entire EDRM model – identification, collection, preservation, analysis and full review – into one automated step.
Editor: Is the body of case law addressing eDiscovery issues increasing, and are your solutions keeping pace?
Wetzel: Yes, it is increasing and also evolving toward a targeted focus on the most critical issues: technology, costs and exponentially increasing quantities of data. Court decisions are focusing on what a company is doing at the onset of litigation, so companies face a daily challenge in managing and collecting data in a legally defensive manner in order to avoid sanctions and adverse inference instructions as a result of spoliation.
This is why an efficient litigation hold process is so important. An effective process starts with eliminating repetitive steps, such as manually collecting from each individual custodian. Agent-based technology does that and allows an administrator to remotely determine the criteria for identifying relevant documents within a particular case or investigation. The agent then identifies, preserves and collects the data without custodial and IT intervention. As soon as counsel is satisfied with the result, the system exports data to a review platform for analytical or linear review.
Thus, the company controls every step of an automated, intelligent – and therefore defensible – eDiscovery process.
Editor: Please discuss data security issues with the cloud and where companies currently sit on that comfort spectrum.
Wetzel: Data security is no different in the cloud than on internal servers, PC’s or PDAs. From a hacker’s perspective, it makes little difference where the data resides because they will target internal systems just as easily as the cloud; therefore, data security is an issue regardless of the company’s storage system. The critical factor with cloud services is provider quality, and given that companies like Amazon, Google, Microsoft and Apple have embraced and now offer secure cloud services, there is increasing confidence in the cloud.
Our review platform can either operate behind a corporate firewall or export data to a secure cloud environment. This flexibility is very appealing to our clients because it enables them to do their own cost-benefit analysis and determine whether it is more cost-effective to purchase, maintain, upgrade and provide training for in-house hardware versus exporting data directly to a cloud.
Editor: Can VeDISCOVERY’s solutions address corporate ESI issues beyond litigation? Tell us about the consultative side of your services.
Wetzel: Increased focus on investigations, trade secrets, IP issues and government subpoenas has driven the need for eDiscovery applications that are adaptable. In recognizing the growth of eDiscovery in both scope and complexity, corporations require effective guidance toward a proactive solution that specifically reduces the risk of sanctions for spoliation and other discovery missteps.
VeDISCOVERY provides consultation products and services that not only address particular matters but also enable a corporation to attest that its methodology and protocols are beyond legal scrutiny. We partner with corporations, determine their needs, communicate what we’re seeing in the industry and then leverage our technology to create an accurate solution that clients can hold up with confidence to a judge or opposing counsel.
Editor: Does this help at the early case assessment stage?
Wetzel: Absolutely, and this ties in with the discussion about misguided focus on the review process, rather than on earlier stages. Such focus misses the point, much like building a house by constructing the roof before laying the foundation. Our consulting and technology strategies provide the tools to lay a solid foundation focused on early and proactive stages and then move forward as necessary.
Editor: Any final thoughts for our readers?
Wetzel: We have spent the past 12 to 18 months looking beyond day-to-day eDiscovery issues to develop a product that covers the whole EDRM, and we are confident that our agent technology can do the job. We are fortunate to be in front of the industry by offering corporations a holistic solution that meets the full spectrum of needs, is defensible and can merge seamlessly with existing systems.