Integrating Managed Review With Proven E-Discovery Capabilities

Wednesday, November 21, 2012 - 12:41

The Editor interviews Foster Gibbons, Senior Director, Managed Review, Xerox Litigation Services.

Editor: Tell us about your background and professional experience.

Gibbons: I’m a litigator by training and have substantial litigation and compliance experience, both at law firms and in-house. In early 2001, Kaye Scholer engaged me to provide pretrial discovery and litigation support for a range of complex matters for Pfizer. I then joined Pfizer as corporate counsel in 2006 where I coordinated discovery processes, principally for civil litigations but also for government investigations and other matters. Immediately before joining Xerox, I led a managed review group for an LPO provider that had operations in the U.S., Great Britain and elsewhere in the world.

Editor: Xerox Litigation Services (http://www.xerox-xls.com/) announced the launch of its managed review offering on November 6. Please talk about the strategic decision to add managed review services to Xerox's roster of e-discovery capabilities.

Gibbons: As part of a comprehensive range of discovery services, the addition of managed review is a natural extension of our strength. Strategically, we are well positioned to leverage our existing talent and competencies in e-discovery and technology; to offer our clients an efficient and capable review operation; and to deliver seamless integration of this important project component by bringing it all under one roof.

Editor: Describe the overall design of Xerox's managed review service and what makes your approach unique.

Gibbons: The principles underlying a best-practice managed review service are not appreciably different from those applicable to other elements of an e-discovery process. We help supervising counsel to design and implement a reasonable and efficient approach to a consistent, first-line analysis of electronic data in what remains a largely manual process that’s based on a template of best practice guidelines.

Xerox is uniquely situated in that we already have the proven technology and skills to support clients and their counsel during reviews, to manage workflows, and to assist with delivering a high quality work product. We bring established technology approaches – including hybrid options that leverage predictive coding or analytical technology – plus well-established, sound project management and client service skills. This in-house expertise was in place long before we developed a managed review service, which is a differentiating factor in our favor.

Editor: Please talk about the qualifications and responsibilities of the Xerox managed review team, which we understand you will lead.

Gibbons: I was selected to lead this group because of my experience in the e-discovery field and in managing review projects. It’s largely my vision of the team that I bring to the table.

This is a team sport. There’s a saying in hockey that the name on the front of the jersey is a lot more important than the name on the back, and the name on the front of our jersey is Xerox.

I build my teams with outstanding and complementary competencies. Christine Yi is our operations director and a superior project manager and team leader. She has worked with many Fortune 100 clients, including Pfizer.

Her principal role is to map out all aspects of the review process, from scoping out a review with counsel, to determining how automation technology and manual review will integrate with the broader discovery process. Christine is responsible for the mechanics of coordinating first-line review, from access, security and communication protocols through the selection and assembly of project teams, performance and progress metrics, reporting and documentation.

Our core team also includes a solutions lead, whose role is to continuously adapt our review model based on our clients’ particular needs and available technology. When Xerox offers recommendations on review workflow, for example, to clients and their counsel, the solutions lead works with counsel to ensure the recommendations conform to the current best practice construct.

Editor: Does the managed review offering tie in with Xerox's other proprietary e-discovery services?

Gibbons: Yes. The great advantage we offer clients is our common lineage with Xerox’s OmniX and Lateral Data’s Viewpoint client services teams, which are the e-discovery platforms on which Xerox currently supports reviews. We can also fully leverage the capabilities and experience of the CategoriX technology-assisted review professionals – the search and analytics experts who have backgrounds in linguistics and statistics. This synergy exists even where Xerox is brought in solely as a managed review provider, but we are keen to provide this benefit to existing clients on our platforms as well.

Editor: Does the system allow flexibility?

Gibbons: We’re in the business of offering options through a range of technology-driven services, software and consulting expertise. We offer two alternate processing, hosting and production platforms: OmniX, which is a web-based platform, and Viewpoint, which is an all-in-one e-discovery software solution that is installed on-premise behind the firewall or available as a hosted SaaS model. 

We offer a range of consulting and support services including CategoriX, which I mentioned earlier – this is our proprietary, technology-assisted review solution, and our teams have successfully, for several years, supported reviews conducted by law firms, internal legal teams and third-party providers. No combination or solution is foreclosed to our clients.

In managed review, we continue the theme of offering options; our teams work as effectively on Viewpoint as on OmniX, so the platform does not dictate the review solution, nor for that matter does the review solution dictate the platform.

Finally, we have experience with most commercially available platforms and automated review technologies, so we can work with third parties to build an effective and efficient review. The range of options is very broad.

Editor: Does offering the managed review service enhance Xerox's relationships with multinational corporations and law firms?

Gibbons: Xerox enjoyed strong client partnerships long before we started offering the managed review service, which complements our existing strengths and extends our flexibility. It cannot help but raise our reputation as a credible partner across all e-discovery disciplines.

The key goal for us in these relationships is to help clients see the value of thinking about e-discovery as one continuous process that must be addressed in a comprehensive way, early on. Lawyers tend to want to focus initial efforts on the strategic points of a case, including the collection of data, rather than on the overall discovery plan and all-in costs.

In-house legal teams and litigation support managers at law firms tend to see litigation as one event with multiple parts rather than as a sequence of events. Early decisions about data collection can have a huge impact down the road, so thinking in terms of one continuous process will enable better cost forecasting, a driving factor for in-house counsel.

Editor: How does your team interact with key players at corporations or law firms?

Gibbons: It begins with effective communication and collaboration. From critical early-stage decisions to the advanced planning and building of a discovery project approach, success requires participation of all players.

Therefore, Xerox initiates an early interface with corporate legal and IT groups, and with law firm litigation support groups and counsel. Because Xerox is already involved in the early stages of data collections and processing, the managed review group can piggyback on those early discussions, both to ensure that the review planning remains a priority and to offer recommendations to achieve process and cost efficiency.

Editor: Please describe Xerox's data security protocols.

Gibbons: Xerox’s security protocols, their controls and safeguards, are among the most rigorous and comprehensive in the industry. They are compliant with enhanced requirements of SSAE 16 Type II, which supplants SAS70 Type II standards, and these new attestation requirements conform to international standards for security and integrity of data.

Xerox owns and operates all of our data centers – which provide three-tier data redundancy with hot secondary and tertiary back-ups – and all are within controlled environments. They are designed to protect client data and to ensure operational integrity and uninterrupted operation. These protocols are very important to our clients who work with sensitive data and are in highly regulated industries.

In terms of the managed review service, we access client data through secure platforms. Our operation protocols incorporate standards for maintaining confidentiality, security and the integrity of client information, from aspects as mundane as the physical security of our facilities and work stations; to the screening process for review team members; to our communication protocols and disposition of project reports and documentation.

Furthermore, specific data security protocols can be enhanced as a client’s counsel may direct for a given project. We have dealt with and accommodate all levels of security requirements, and can seamlessly comply with even the most rigorous.

Editor: How can Xerox's managed review service help to ensure defensibility?

Gibbons: Without question, defensibility is the name of the game. While it is influenced by a variety of elements – the processes, tools, techniques, methods or metrics that are employed – defensibility boils down to competency, training and quality control procedures. Critical to defensibility is how a project is planned and executed and whether it stands up to challenge.

Our mantra is to follow best practices in developing a comprehensive and reasonable project plan in collaboration with counsel. To ensure a consistent and accurate review, we employ procedures that include selecting highly qualified and motivated review teams, training them and then measuring their performance. The latter allows timely course corrections and increases accuracy and consistency. We communicate continuously with supervising counsel to provide transparency, and we document everything we do. This is our definition of a defensible process.

Now there’s not much affirmative guidance in case law. The pivotal cases mostly recite errors and disasters, generally reflecting how not to conduct discovery. The message from the courts is that discovery can be messy, and it’s unlikely ever to be perfect; so the courts seek reasonable methods, judgment and effort, and they require proof that the methods, judgment and effort were, in fact, reasonable at the time and in the circumstances. That means no black box discovery.

The courts require transparency into the methods and processes employed, including having a documented record that allows you to reconstruct, if challenged, what was done, why it was done, what options existed, and if any aspect of the process was less than perfect.

We certainly are guided by the best practice principles generated by practitioners in the field, at Sedona, for example. Professional groups and meetings discuss and develop guidance for what thoughtful lawyers, judges and discovery professionals consider to be the critical elements of successful discovery project management. And all sources in the professional literature, conferences and seminars permit these principles to be debated and refined.

The bottom line is that leadership of all discovery decisions lies in the hands of responsible counsel. Xerox provides assistance in the form of expertise; clearly defined processes tailored to the requirements; and a means of measurement, quality control, documentation and transparency. The principles and standards that we adhere to were developed collaboratively among industry colleagues and the supervising counsel with whom we work. I’ve had the honor of contributing to this professional body of work.

Editor: Do you have any closing thoughts for our readers?

Gibbons: Although individual processes may be adapted to new situations and technologies as they arise, the guiding principles for defensible discovery are pretty uncontroversial, and they’re widely followed or, at a minimum, aspired to. It’s not that Xerox has cornered the market on a defensible process because all very good providers should be offering a well-thought-out means of achieving that end. My role at Xerox is to build a skilled team that, in working with supervising counsel, will design and implement a reasonable, verifiable process to produce quality results in a cost-effective manner.

Please email the interviewee at foster.gibbons@xls.xerox.com with questions about this interview.