Editor: Mr. Kellner, would you tell our readers something about your professional experience?
Kellner: I have approximately 20 years of experience in legal technology. I began my career as a litigation support manager at Debevoise & Plimpton and then went on to the service provider side of this business. Since 1997, I have been engaged in consulting with law firms and corporate legal departments primarily, but not exclusively, in computer forensics and electronic discovery. I had worked with SPi over the years and knew of the organization's reputation for bench strength and expertise, and when the opportunity arose to help in the formation of its e-discovery group, I was very glad to join an outstanding cadre of industry experts.
Editor: Please give us an overview of SPi and the services it provides its clients.
Kellner: SPi has been engaged in litigation support document coding for many years. We built our first facility in 1992, and over the past 15 years or so we have provided paper-discovery and text-coding services. In addition to coding services, we have been working in e-discovery for the last five years. This entails services related to onsite preservation and data collection, processing and hosting a number of platforms. We also provide attorney managed review, in which we help our clients review for production. We consider ourselves a full-service litigation support provider, and within that, end-to-end services in electronic discovery.
Editor: Would you tell us something about your consultants?
Kellner: The senior consultants on staff at SPi, of which there are eight, are typically from the ranks of technologists and senior consultants in other organizations. They have been large law firm litigation support managers or involved in litigation support consulting, project management, or operations. As a result, they have an excellent grasp of what it is like being on the client side of our engagements. SPi's consulting team offers on-site data collection and preservation, computer forensics, planning for specific litigation projects - the tactics of e-discovery - litigation budget expertise and contingency planning. We also provide support for document and data review. SPi Data Analytics is a part of the consulting group. It helps attorneys find and focus on just the data they need to review for production.
Editor: What types of organizations does the group serve?
Kellner: We consult primarily with large law firms and with corporate law departments. With respect to law firms, the engagements may be case- or project-specific or they may involve working with the firm's litigation or litigation support department on procedures. For our corporate clients, the range is considerable. Most of those engagements deal with managing the overall cost of discovery.
Editor: Most of our readers are general counsel and members of corporate law departments. With corporate clients are you dealing with lawyers or with the IT people?
Kellner: We are dealing primarily with the attorneys. Most of the calls come directly from the corporate law department. The project may be case specific and have to do with data collection or preservation in connection with a particular litigation, or it may involve an assessment of data that has potential relevance for litigation in the future. We also help with the development of procedures concerning data collection and preservation. Much of what we do concerns best practices with respect to litigation management and litigation contingency planning.
Editor: How does your consulting offering relate to your core e-discovery services offering?
Kellner: SPi Data Analytics helps a legal team defensibly search and cull its data in advance of review. We aim to ensure that searching and culling is done in a defensible manner, which means that it is documented to the point where the client is able to explain and justify its search methodology to opposing counsel or a court, should that prove necessary. This service delivers a considerable financial savings in review costs to our clients. Our services for onsite preservation and collection are an integral part of the end-to-end service offering for e-discovery. We also help our clients to engineer their reviews for maximum efficiency and quality, and we can do this whether we are hosting the review or not.
Editor: What are some of the major problems facing corporate law departments related to ESI - electronically stored information?
Kellner: Most of the issues have to do with budget and procedures. On the budget side, the in-house lawyers are working to reduce the overall cost of litigation, and, with discovery a significant factor, the overall cost of discovery. They are working with consultants and outside attorneys to better isolate relevant data, negotiate scope, and cut the cost of their review of documents and data. With respect to procedures, many are working on litigation contingency planning and standard procedures for litigation holds and for the identification of custodians and potentially relevant ESI. A small but growing number are working with their IT strategic planning personnel to determine how enterprise systems for e-mail and content storage can help with the litigation lifecycle for ESI. These are systems that can be deployed across a large organization, and rather than store data on desktops or on e-mail servers or shared file servers, they constitute centralized systems for storing, and then restoring, single copies of e-mail along with that document's history. The enterprise system allows for a relatively easy search and retrieval of individual e-mails and files in the situation where the law department needs to answer a document request.
Editor: What can law departments do to be more prepared for litigation?
Kellner: The first thing is to identify the staff - whether in-house, outside counsel or support personnel - to be mobilized when litigation is likely and to determine the roles such people will play. Doing this in advance of litigation is crucial.
The next thing is to review the company's historic litigation patterns to determine the location of the responsive data, who owns it, how it is stored and how it can be retrieved.
A third essential "to do" concerns the development of a process for utilizing the previously identified staff and a knowledge of the data sources to address custodian retention, data identification, and then data preservation and collection as necessary. This avoids addressing these issues in a panic at the last moment.
Editor: Do your clients have a permanent cadre of litigation support people that are both tech savvy and experienced in helping the lawyers in this type of situation?
Kellner: Larger organizations, particularly those where litigation is a frequent event, often have a full-time staff. The best mix, we find, is interdisciplinary and includes lawyers, litigation support people with a knowledge of what litigation support vendors can provide, paralegals and IT people, particularly those with desktop, server and e-mail experience.
Editor: Do you attend meet-and-confers on behalf of clients?
Kellner: Yes, but more typically we help the litigation teams prepare negotiating scenarios that have to do with the number of custodians, the volume of data, and the relative costs of various approaches to culling the data, reviewing it and producing it. When the clients go into negotiations prepared - and that includes having both preliminary and fallback positions - the outcome is invariably better than would be the case if they were unprepared. Regardless of the merits of the case, if the litigation team has evaluated a custodian list, interviewed custodians, and assessed the types and the volume of data subject to hold, collection review and production, they are in a position to negotiate from a position of strength. And that is in addition to having a good handle on the resources necessary to complete a production as well as its timing.
Editor: What is the best process for liti-gation holds?
Kellner: There is no one-size-fits-all approach. Addressing a litigation hold draws upon technology resources, geographic concentration, type of business, culture, type of data, even the type of case. It is important first to identify the business or the people who are affected by the case and, following a careful review, to identify the data.
Editor: What are some things that companies must keep their eye on for the next year or two?
Kellner: Two things. First, the regulatory environment is changing for many industries, and the changes may affect the business or legal requirements for storage and the ability to retrieve certain kinds of ESI. Second, companies must be concerned with how they leverage their resources, both in-house and with respect to service providers, to minimize the cost and disruption associated with litigation and regulatory inquiries. On the latter, it is worth noting that both the FTC and the SEC are in the process of enhancing their regulatory reach.
Editor: How can litigation support departments best evaluate technology?
Kellner: There are typically two scenarios for a litigation support department technology evaluation. In the first scenario, they are looking to purchase or license technology for long-term multi-case use on an in-house basis. In the second, they are evaluating technology for use in a specific case. They need to evaluate both the appropriateness of the technology and the service that accompanies it. They also need to understand everything about the total cost of the technology, and that includes ease of use, flexibility, administrative controls, maintenance and service programs. In the long-term scenario, they should map out use of the technology for multiple projects over time. In the single-project scenario, they should address more than just user interface, and that includes having a sound underlying technology, an infrastructure and backup support, training and an effective help desk.
Editor: What about staff and process development?
Kellner: A litigation support department should have at least some reporting connection to the litigation department and not solely to the law firm's or the company's IT department. This connection ensures that procedures can be developed with and vetted by practicing litigators. A litigation support department must also build into its annual budget the resources to add staff, train staff outside the organization, and contingently purchase software, hardware and the services it might need during a budget year but cannot anticipate in the budget. The training should be in both the legal area - and similar to litigation attorney CLE training - and in the technical area, in specialties such as project management, database administration, programming, and so on.
Editor: Is there anything that you would like to add?
Kellner: Very often we encounter the absence of project management, even in large litigation projects. Lawyers are typically busy with the legal aspects of the case, and the service providers are simply taking their instructions from the client. We think there is a place for classic project management here, through which the various tasks can be laid out along a timeline of deliverables, resources assigned, budgets tracked, and so on. This step, we think, would serve to make a litigation support effort a predictable process and enhance the likelihood of a positive outcome of the litigation itself.