The Myth Of E-Discovery Commoditization: How To Move From Good To Great Vendors

Monday, December 12, 2011 - 18:00

Please visit the Kiersted / Systems, LP booth number 2113 at LegalTech on January 30 - February 1, 2012.

The e-discovery industry is approaching maturity. There are extensive judicial guidelines and industry leaders, as well as a body of scholarship discussing the evolution of the field. Widely accepted best practices abound, and a broad range of vendors has emerged to implement them. 

These developments give the impression that e-discovery support is now a commodity, and the sole distinction between teams supporting clients is simply price. 

This is a myth.

In fact, the dynamic market for this talent and increasing concerns over legal actions require an uncommon level of experience, especially since litigation remains a central focus of organizations throughout the U.S. and abroad. In its 8th Annual Litigation Trends Survey, Fulbright & Jaworski reported that 92 percent of U.S. respondents expect litigation to increase or remain constant in 2012, 46 percent retained outside counsel to assist with regulatory proceedings, up from 37 percent in 2010, and 18 percent expect to increase spending on e-discovery this year.

Given the anticipated volume of litigation and novel questions of law that are certain to arise, e-discovery remains a multifaceted process. Successfully navigating through this maze requires skilled teams that understand data in all its forms, have experience managing imperfections, offer extraordinary technical talent, and apply innovative solutions to complex problems.

Understand Your Data

The new year is sure to bring additional complexity to the business community as data changes with the tools used to create it. For example, Fulbright found that more than a quarter of its respondents use cloud computing, and 31 percent of those from the U.S. had to preserve and/or collect data from the cloud. Nearly one-fifth also had to preserve or collect data from an employee's personal social media account in 2010, while 13 percent had to produce such material.

Since it is so new, manipulation and evaluation of this type of data has historically not been a concern. This year, however, it is growing in its importance, and teams that have experience considering novel forms and sources of information will be best positioned to address each new challenge that arises.  

As a result, one must collaborate with a vendor that inherently understands the information landscape and can traverse it seamlessly. In a telling indicator of the future interaction with data one can expect, 91 percent of Fulbright’s U.S. respondents reported that they allowed their employees to conduct business on mobile devices, with 30 percent of all respondents needing to preserve or collect data from them for a litigation or investigation.

Given the dynamic nature of the information evolution, the quality that one should look for in a vendor is not whether its team has a reputation for addressing issues associated with the most novel type of data, rather, ask whether it has longstanding experience facing each new category with a history for efficiently overcoming any obstacles. An aptitude for recognizing idiosyncrasies in electronic records is earned by vendors that have been tested over a long period of execution.

Manage Imperfection

That execution often requires success and failure, as “electronic” does not equal “perfect.” While data appears to be fungible, different vendors will actually return a range of file amounts during their processing. There will often be critical variations that only a sophisticated and dedicated development team can address.

In order to manage those imperfect findings, an effective vendor needs to have both the talent and technology to identify document deficiencies. Many teams can process electronic records well, but only those with an intuitive understanding of what to expect can consistently eliminate the irrelevant records and focus on the key contents.

Create Repeatable Processes

The complexities and technical details routinely distinguish staff with skill from those that simply produce average results. Successful teams seek to create repeatable systems that focus on finding what is necessary and eliminating what is not.

Thriving organizations that dynamically evaluate mistakes and update their processes using system logs to avoid them in the future operate more efficiently. By learning from each past discrepancy and continuously honing their ability, they simply become more effective.

Give Clients Control

Savvy vendors can accomplish part of that development by engaging clients in the process. Support teams that leverage technology to collaborate with their in-house counterparts gain both insight and trust.

Start by creating a web interface where clients can enter document processing specifications directly. Empowering clients in this fashion ensures that the entire team approaches each record correctly. In addition, automating the follow-up process by sending e-mail notifications to clients and team members that include all processing- related specifications helps to avoid costly errors. Those featuring non-standard options provide practical verification, which enhances clarity and accelerates the entire project.

Showcase Technical Solutions

In addition to implementing sensible strategies that ensure optimal efficiency, talented vendors evaluate problems and analyze their different components to identify appropriate technical solutions. Ultimately, clients value support professionals who can transform their flawed manual practices into seamless digital operations whenever practicable.

To evade the pitfalls of electronic discovery, insist on a partner that has deep experience. In addition, seek those with a longstanding foundation from which to continuously enhance and improve their software, as well as their personnel. This is critical as most of the complex issues arose over a decade ago, rather than as e-discovery has become more popular in the past few years. Companies should collaborate with experts who offer perspective as well as insight and highlight a unique breadth of technical expertise.

Develop Systems And Display Depth For Distinction

Technically oriented vendors combine methods with machines. They apply rules, for example, to each aspect of a review protocol, which must be passed before one can continue. They enforce strict requirements while understanding that exceptions may exist for certain compromised or corrupted items.

The rules include determining whether documents may be print or password protected, if they contain text to extract, the existence of records that require additional processing, e.g., those that contain OLE objects, and adherence to quality controls.

More important than the rules, however, is recognizing when they cannot or should not be enforced. That judgment is the hallmark of leading vendors as it represents a depth of knowledge that an organization earns through experience.

Technical Prowess Is Powerful

The purpose of rules and repetition is to ensure consistency in an environment that is intrinsically uncertain. The ability to find problems and permanently fix them in a technical fashion is a key element of achievement. 

Given the fluid nature of data management, if a review team uncovers a new data type, savvy vendors can enter in a new validation rule instantly to continue their forward momentum. It is typically the haphazard nature of document assessment that causes delay, creates confusion and drives up the cost. Vendors that can maintain a set pace while overcoming unexpected obstacles during the process will generally avoid the issues that plague modern litigation.

One critical element is for an organization to engage a trusted outside partner that employs a technical team, which understands the very structure of the database supporting the entire review. If it is the vendor’s proprietary database, the team can offer a significant level of comfort with the institutional manner of its operation and can often anticipate the hurdles.

By reducing the potential for problems in the short and long term, a vendor can achieve the dual goals of speed and accuracy. As such, work with teams that offer a well-designed system for processing material quickly, in a scalable fashion, and with a grid architecture. It is a true differentiator and lends confidence.

Create Flexibility

In addition to understanding its own technology, a vendor must recognize the potential value of integration with other popular tools. Relativity from kCura, for example, is a customizable platform that enhances a number of electronic discovery exercises. It has a robust interface that provides a full array of review components, validation tools, and production capabilities in a user-friendly format.

The ability to offer options and to provide an organization with the widest range of capabilities in the current climate is essential. Given the scarcity of time and funding, documents must be coded consistently and properly at the outset. 

Consequently, from problem files to custom work, or from special requests to specific reports, the key to receiving optimal service is to engage a vendor that maintains a dedicated development team that understands its proprietary technology and can easily integrate with the tools of its partners.

Find Those Who Are Obsessively Competent

Start the process by seeking out those vendors that have a history of platform and software development. They are often the teams that have a reputation for providing better results and forming stronger partnerships. 

Showcasing its advanced technical ability permits a company to adapt to new developments in the marketplace, which fuels client trust and appreciation. It is often recognized for its innovation and history of addressing discovery issues before there was e-discovery.

It is ultimately about collaborating with a vendor that has built success on a desire, based on its corporate DNA, to capture and properly model data, manipulate that information to find answers, and share its findings with an organization that will benefit from its effort.

The increasingly common perception that any team can simply achieve this result is incorrect, and the stakes are too high to take that gamble.


George Kiersted is President of Kiersted / Systems LP. With an extensive background in information technology and application development, he identified the need for the special application of IT to the law and litigation sector more than two decades ago. Since the founding of Kiersted / Systems in 1984, he has built the company into a proven leader in providing advanced technology services to law firms and corporate legal departments in the areas of matter management, document management, discovery, and support for complex litigation. 

Kiersted / Systems LP provides a full range of legal technology services for law firms and corporate legal departments, including electronic discovery processing, forensic data collection, native file review, hosting, and consulting related to matter management, electronic billing and legal hold. Known since 1984 for exceptional service and proven results, its team of experienced, senior professionals helps clients manage cost, enhance quality and reduce risk. Kiersted is a Relativity Premium Hosting Partner and has offices and data centers in Houston and New York City. 

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