Editor: As expertise and experience are critical to today’s topic of integrated discovery and how it was successfully applied in a recent DOJ Second Request, can you share a little of your background and how it relates to support of clients?
Rosenbloom: I’ve been very fortunate. I started my career as a paralegal, then moved into the legal support vendor space, where I have over 20 years of experience. Early in my career, I managed legal workflow, supplying temporary attorneys and paralegals for substantive projects. In fact, when I started, what I did wasn’t even called “document review” yet. The work consisted of project attorneys going into databases and reviewing materials; there certainly weren’t the sophisticated databases that we work with now. As the e-discovery practice has grown and evolved, my knowledge and experience have grown and evolved with it.
Clark: As an attorney, my e-discovery experience began while I was working at several law firms that handled government investigations and litigation. In 2008 I moved to a legal process outsourcing (LPO) company in India, where I lived and worked for two years, building a company that handled e-discovery and managed review services, as well as other litigation support services. In 2010 I returned to the U.S. and began working with TrustPoint, where I’ve covered the entire spectrum of e-discovery services that we provide for litigation and investigation support. So, I have a wide range of experience, both as an attorney and service provider, across many different types of matters.
Editor: Kevin, how would you characterize the impact of your legal background on your ability to educate, engage and support clients?
Clark: I have worked on many large matters, including multidistrict litigation (MDL), and, in addition to conducting trial work on these numerous matters, I assisted in running the discovery process, from collection to production. This enabled me to develop, firsthand, a clear picture of what law firms need when handling MDLs and other types of complex matters. Now that I’m on the litigation support side, I understand what the partners and the associates are looking for when they make requests. Because I speak their language, I can explain the process; I can educate them and walk them through the e-discovery progression. This ability to communicate greatly enhances our engagement with clients. Being able to understand their true needs also allows me to shape and customize our approaches and solutions.
Editor: Abby, in your role as an e-discovery consultant, what are some of the challenges you face regularly in supporting clients?
Rosenbloom: The greatest challenge I have – and the central focus of my job – is managing expectations around balancing budgets and meeting deadlines. I need to make sure that everybody is on the same page regarding these issues.
I also have to handle unexpected monkey wrenches when they occur. This winter, for example, presented major challenges. We had deadlines set, and the government closed. We had other deadlines set, and an ice storm struck Atlanta, which is where our paper was being copied. I need to be able to change things on the fly, to come up with creative solutions – while keeping everybody calm.
At the same time, I must make sure that the entire process is defensible and transparent.
Editor: In addressing these challenges, how do you help clients understand the relationship between all the elements of the e-discovery process?
Rosenbloom: I think where we excel is around transparency. We have a coordinated internal system in place that allows us to keep up to date with all the phases of the project and communicate that information to the client. For example, in the case of the DOJ Second Request, although I was working with the outside counsel and coordinating our efforts, I had to remember that I was hired by the corporate counsel. I had a budget to manage. In these circumstances you need to be very careful and make sure everybody understands that everything you do is billable and that you can’t go outside the budget. This requires a lot of team planning and coordination. At the start, you need to establish a plan of who – corporate counsel, outside counsel, the TrustPoint team – is going to handle what responsibilities. Then, have everybody sign off on the plan.
We also excel at being flexible and being able to change directions to accommodate a client need. Because our corporate counsel was focused on the budget – and review cost is generally the largest part of any e-discovery budget – we opted to send some of the review to a less costly market. The outside counsel, however, wanted to make sure that the core team for Second Request had Second Request experience. Most Second Requests are done in DC, so anything we thought might be relevant to the matter we kept in DC, and we coordinated efforts in different locations. It was like conducting an orchestra.
We also sent daily reports to those who needed them. The outside counsel knew what was collected while it was being processed. There were no surprises.
Clark: Communication, coordination, transparency – these elements are all key.
Editor: Recently, TrustPoint International published a case study on the DOJ Second Request. Can you describe the engagement process and how you began translating client requests into practical execution?
Clark: Once we received the Second Request, we engaged the corporation and outside counsel and developed a plan, receiving involvement and confirmation from all parties. Planning is critical to any successful review project. Once the plan was in place, we started to execute, leveraging the communication, coordination and transparency we spoke of earlier. Immediately, we launched into our workflow processes – collections, processing, Relativity-Assisted Review (RAR) and manual review – several of which were occurring simultaneously.
Rosenbloom: TrustPoint’s wealth of experience in managing e-discovery workflow was key to this process. For example, for the Second Request, when we had to show the DOJ our workflow plan – which involved RAR – we had it approved on the first call. Our workflows were easily defensible, and the DOJ recognized that. The first sign-off call with the DOJ was scheduled for an hour and a half, and it took all of 15 minutes. I think this can be attributed to our experience with the process and the relationship that we have with kCura.
Editor: In this DOJ Second Request, how did the integrated approach for discovery impact the actual results in terms of time, money and risk?
Rosenbloom: I think the tracking and reporting we have in place were instrumental. Internally we had daily calls to make sure everybody was on target. We kept all the pieces moving.
As for integrating our services, while conducting RAR did require that we take some hours to train the computer, by the time we were done we had close to a 53 percent reduction of the data to be reviewed. Add that to the total culling we achieved in the first pass using TunnelVision, and altogether we achieved an 80-90 percent reduction of data for the review. In terms of time management, it helped to have multiple reviews occur at one time – for example, the non-responsive review could be done at the same time as the responsive review because these were being conducted in two different locations. It also helped to start quality control on day one.
Clark: And in the middle of the process, we had to make a change. Fortunately for all parties involved, our flexible workflow allowed for that. Part of the data set, which came from a different source, turned out to be a different type of data. I realized that the initial training set we had used for the bulk of the review would not be relevant to this other data set. We decided to apply a new assisted review analytics index to that data, essentially bifurcating the data in order to ensure maximum efficiency.
Rosenbloom: It worked beautifully. Again, we had to go back to the DOJ and explain what we were doing for sign-off. They said, “Brilliant!” and that was it.
Editor: Did you find that the application of computer-assisted review technology had a significant impact on the results?
Clark: Definitely. It had a huge impact on time and on cost. The application of such technology allowed us to successfully complete the review within the specified parameters, which of course made the client very happy. As Abby mentioned, it absolutely slashed the manual review we had to do, which meant cost savings as well.
Rosenbloom: Most everyone would agree, when looking across the e-discovery Reference Model (EDRM), that the most expensive part is review. So, culling the amount of data to be reviewed is critical. For this review, we found 7 percent responsive and 13 percent non-categorized, for a total of 20 percent that needed to be reviewed. The agreement we reached with the DOJ was to review 100 percent of the uncategorized, 10 percent of the relevant data and 10 percent of the non-relevant data for quality control and privilege.
The non-relevant data was essentially junk – pictures and such – so the reviewers were reviewing at a rate of 125 to 140 an hour. We had a 98 percent accuracy rate on our review. It was impressive, I must say.
I would also add that Kevin’s idea of bifurcating the review wound up saving the client a significant amount of time and money.
So, at the end of the day, how did it go? Bottom line: we came in under budget and completed the production prior to deadline.
Editor: In what other areas have you seen the success of the integrated e-discovery approach?
Rosenbloom: We use this kind of integrated services effort for all of our projects. Even if we’re only applying analytics to a small group of documents for a boutique law firm, we have our internal tracking systems. TrustPoint implements these systems, whether it’s a second request or a huge government investigation or a small analytics matter. These are just our systems.
So, although our fully integrated approach works wonderfully for end-to-end e-discovery projects, it works just as well for standalone review management, say, or collections and processing projects.
Clark: I should add that we’ve used this approach for many different types of matters, as well – FCPA matters, Second Requests, patent disputes, pharmaceutical litigation, contract disputes – you name it. The integrated e-discovery services approach allows us to coordinate the teams, identify issues immediately, effectuate a smooth and seamless flow between the different processes and quickly bring solutions to the client.
Rosenbloom: It’s important to note that as a team, we make ourselves completely available to clients throughout the process. If the client wants to speak to only one person, she can speak to the one person who will have the reports every day. If, on the other hand, the client wants to speak with the individual managing the processing, she will have that contact information at her fingertips as well.