Privilege review is expensive because it is more nuanced than straight responsiveness reivew.  In responsiveness review, the reviewer can make a quick decision about most documents from the content of the document.  In privilege review, however, the reviewer must consider the content, the context and the parties involved for each document to determine whether the document should be marked as attorney client, work product, or both.  This leads to longer review times (i.e. less documents reviewed per hour) and makes the review more costly.

This cost is compounded by overbroad privilege search terms.  A party will typically want to cast a wide net to capture all privilege documents—understandably, as waiving privilege through a mistaken production can be costly.  Out of  an abundance of caution, parties end up supplementing attorney names with general search terms like “attorney” and “privilege*”.  These terms frequently capture a lot of non-privileged documents such as documents containing footers or “it was a privilege to meet you.”  This practice unnecessarily drives up the number of documents that are thoroughly, and expensively, reviewed for privilege.

But, there are products out there that can minimize this cost without sacrificing quality.  By leveraging experts and technology, you can isolate the most likely erroneous hits.  When we recently benchmarked our PrivSmart product, we found it was over 99% accurate in isolating those false hits which made up over 15% of the potentially privileged documents.  Recent studies have shown human review accuracy rates to be significantly lower than 99%! Whether you decide to QC those documents or remove them from privilege review entirely, you will still see a dramatic cost and time savings by applying this process.

What are you doing to reduce your privilege review costs?  What other products are out there attacking this issues?  I’d love to hear from you.

For those of you not familiar with Zoom, it combines Equivio’s best-of-breed near-duplication, email threading and Relevance components with a robust data import and export function, as well as early case assessment capabilities and enriched analytics. These modules are seamlessly integrated on a unified web-based platform for easy access and use. The multi-faceted interface eliminates the need for moving data between applications, leading to shortened data handling cycles and reduced risk of errors.

Equivio was equally excited about our partnership. “Innovative e-discovery providers like Lighthouse have been quick to recognize the need for powerful predictive coding and analytics. It’s now clear that these analytical applications are the only effective way to cope with the continual growth in ESI volumes,” said Amir Milo, CEO of Equivio. “Equivio’s Zoom platform allows Lighthouse to reduce the risk and costs of discovery for
its law firm and corporate clients.”

Check out the full press release for more information.

Time

Most small and medium firms don’t have a host of contract review attorneys available or an army of associates to press into document-review action.  With electronic data continuing to increase in volume at remarkable rates, even small cases can exceed 50k documents for review.  Medium size firms, much less, small firms or solo practitioners, are in danger of being overwhelmed or simply excluded from litigation involving document sets exceeding 50k documents because they don’t have the time or resources to review volumes of this size.  TAR can be a huge equalizer by reducing the eyes-on review total to less than 10k documents for cases involving document sets between 50k and 250k documents.  At 250k documents, a seed set of 1,500 documents and 4 validation rounds covering another roughly 6000 documents can reach the  95% confidence rating, with a  +/- 2.5% confidence interval.  Adding in another 2,500 documents from the non-responsive sample – to confirm the results of the machine coding – brings the total eyes-on review population to approximately 10k documents.  It’s true that additional review is likely necessary for privilege, confidentiality designations and issue coding, but with responsive rates often as low as 10% in linear or TAR reviews, this would add only another 20k documents to the eyes-on review population (assuming no use of privilege search terms or other technologies such as near-duplication or thread-suppression/identification).  And this was for the 250k document set…a 50k document set will require significantly less “eyes on” review, possibly less than 10k total documents.  Small to medium size firms and small businesses can manage a review volume of 20k-30k documents, especially if they have partnered with an e-discovery vendor that has significant TAR credentials and well-established TAR processes.

Capacity

Small to medium size firms who expect to handle only 1 matter a year totaling 50k+ documents may not need to spend the time and effort on TAR, but they should pause and ask themselves the following:

• Do they miss out on new clients or certain cases from existing clients because the perception is that a small or medium firm just can’t handle document intensive litigation?
• Do they receive document productions exceeding 50k documents from opposing counsel?

Small to medium size firms can take on cases or clients they might otherwise have to pass on by developing a working knowledge of TAR review workflows and best practices and becoming familiar with at least one of the platforms offering TAR.  As the small to medium size firms gain experience, knowledge and confidence in the TAR platforms, the tools and the available vendor-partners, they will be increasingly positioned and able to compete against much larger firms who doggedly hang on to the enormous billable hours associated with linear review (though clients are increasingly chafing at high linear review costs).

By incorporating TAR workflows and capabilities into their “litigation playbooks,” small to medium size firms can leverage their capacity in multiple ways.  How many times do small or medium firms face litigation where opposing counsel dumps huge volumes of supposedly “responsive” data on them?  Key word searches, file type analysis and other “traditional” solutions are often used to try to reduce things to a manageable size.  TAR offers a much more advanced and more capable solution, and is a truly low-risk option.  None of the current angst about whether courts will accept TAR or what level of transparency with the other side will be required.  There’s not likely to be procedure rules or case law dictating what confidence interval you have to use nor are you likely to be challenged by the other side about your use of TAR to organize documents you received from them.  If you can organize the materials along a handful of primary topics, you can use TAR to sift through large incoming productions from opposing counsel.

Adding TAR to your portfolio of tools can allow you to scale up without having to put all your available associates on month-long document reviews, hire temp review attorneys, or contract with review companies who are not as likely to offer “best” pricing to a small firm.

Price

TAR doesn’t make litigation cheap nor does it eliminate all review costs.  In fact, if not used correctly or if the small to medium firm works with the wrong e-discovery vendor, it can even result in higher review costs.  If you’re a small to medium firm and considering TAR (good for you if you are), ask the following questions:

• What pricing model are you using with your client?
• What pricing model are you getting from your vendor?

If the answer to these questions are “hourly” or “volume” or “volume plus hourly” (or  variations of volume based billing), I challenge you to consider other options such as flat fees, fixed fees or managed services agreements.  If your e-discovery vendor is unwilling to consider anything other than a volume based billing for TAR or other e-discovery work, a red flag should go up as TAR typically involves significant volumes of data.  Small to medium firms, through smart use of TAR and disciplined but flexible thinking on pricing models, can truly set themselves apart with existing and prospective clients.

How substantial a savings are we talking about?  Well, drawing on a recent experience, a client saved between $150k-$200k in review costs on a single document review through close consultation and use of TAR.

THE GREAT EQUALIZER?

I see TAR as one of the bigger potential game changers in litigation practices in my professional lifetime.  I started in the e-discovery industry 13+ years ago when Technology Assisted Review meant you could use Outlook to review PST files from your clients.  I spoke with many solo practitioners and small firms over the intervening 13 years and a common theme was that smaller firms and solo practitioners were the least equipped to deal with the explosion of ESI.  I believe TAR will eventually prove to be an extremely potent weapon in small to medium sized firms’ efforts to hold their own in the e-discovery arena.  What are you all seeing out there?  Any small to medium sized firms embracing TAR for their e-discovery needs?  I would love to hear from you about your experiences, questions and opinions with regard to TAR.

While the wave toward use of technology assisted review in e-discovery has certainly been building, there has been an undercurrent of reluctance until there has been clear judicial acceptance.  Judge Peck seemingly addressed this fact in an October 2011 Legal Technology News article, challenging litigants to cite that article as a sign of judicial approval, and then citing himself in the opening words of the De Silva Moore ruling.  In fact, it may be this rush to self-approve that ultimately causes the ruling to be overturned. However, the concepts that Judge Peck outlines in his opinion will survive and guide utilization of technology assisted review – regardless of the outcome of this case – and will lead eventually to wide judicial approval of the technology.

Judge Peck outlines several factors which can be influential in determining if technology assisted review is appropriate.  These factors include:

•         The volume of data

•         Proportionality under FRCP 26(b)(2)(C)

•         Having a well-designed, valid process implemented.

Even if Judge Peck’s ruling is overturned, these clearly delineated factors will likely persist, helping to move the ultimate acceptance of technology assisted review forward. A successful appeal of Judge Peck in Da Silva Moore is not the death of technology assisted review; Da Silva Moore’s principles will endure, and technology assisted review’s recognition as a valid and preferred review tool will continue.

In analyzing whether technology assisted review was appropriate in this case, Judge Peck relied on scientific research and previous opinions to show the superiority of technology assisted review to alternatives like keyword searching and linear manual review. In fact, he challenged those who object to technology assisted review to come up with a better methodology.

One of my favorite aspects of this opinion is Judge Peck’s focus on process. Like everything else in e-discovery, the process surrounding technology assisted review is just as important as the underlying technology. Judge Peck explicitly recognizes this, writing that “…it is not a case of machine replacing humans: it is the process used and the interaction of man and machine that the court needs to examine.”

With process in mind, he describes how the parties constructed the seed set to train the system, how they used iterative review rounds to validate the system, and how they agreed to use statistical sampling to QC the results of the system’s classification. These details provide a helpful roadmap for successful use of technology assisted review.

“The updating of the Lighthouse brand is the culmination of months of work focused on the development of innovative solutions for our clients,” said Brian McManus, Lighthouse’s Managing Partner. “The industry is moving quickly to address the need to reduce the mountain of data being created by corporations to a manageable level for eDiscovery. The best innovations will be those that attack the most expensive and time-consuming aspects of the discovery process. The Lighthouse SmartSeries represent a large step forward in addressing this issue.”

Check out the new site: www.lhediscovery.com.

Tip #1. Know the Technology

Having access to sophisticated review features won’t do you any good unless you understand how to use them. This was true for the previous generation of eDiscovery tools, and it’s even more critical with TAR. TAR software relies on behind-the-scenes statistical algorithms to evaluate and classify documents. Don’t worry, you don’t need to know these algorithms to use the software, but you do need a detailed understanding of the software’s options as well as the consequences of choosing those options. If you don’t have the time to develop this expertise yourself, it’s important to work with service
providers who already have it.

Tip #2. Identify Good Training Documents

Before a TAR system can start classifying documents as responsive or non-responsive, it needs to be trained with human-selected sample documents. Choosing the right training documents increases the efficiency of the TAR process, so it’s worth some extra effort at the beginning of a project.

A good training document should fall within the proper date range, and should be clearly responsive on its face. If its responsiveness only comes from a broader context outside of the document, the training won’t work as well – computers haven’t yet mastered the art of implication. Try to find sample documents for each request or issue, but don’t be worried if you don’t have complete coverage at the start. TAR is an iterative process (as explained in Tip #3), so additional issues and sub-issues will be fleshed out over the
course of review.

Tip #3. Take Advantage of the Knowledge Feedback-Loop

The iterative nature of TAR is like a continuing dialog between you and the computer, with each exchange adding to the accumulation of knowledge. The TAR system uses your initial training documents to find a batch of statistically significant documents for you to review. Your responsiveness choices on this batch will allow the system to find even more significant documents for you to review. This back-and-forth dialog continues until the system has classified the entire data set at an accuracy level acceptable to you. At each iteration you learn more about the documents, and this knowledge gets passed back to the system, rippling throughout the data set. The more you know, the better the system performs. The better the system performs, the more you know. It’s a beautiful thing.

This knowledge feedback-loop is one of TAR’s major advantages over manual review. Manual review is a linear process: reviewers work their way through batches of documents, learning more as they go, so by the end of review they have a fairly complete knowledge of the case. But this knowledge can’t be applied back to the documents they’ve already reviewed without a re-review of the entire data set, something prohibitively expensive in most circumstances. In contrast, by the end of the TAR process, both you and the system have a detailed knowledge of the documents, and it’s this detailed knowledge that gets applied automatically across the entire set of documents.

Tip #4. Log Everything

Two other big advantages TAR has over traditional review methods are repeatability and transparency. A TAR system is deterministic – if you feed it the same data, you get back the same output every time. Humans, on the other hand, are notoriously non-deterministic (which can be magical in some arenas, but not in document review). With TAR, every step of the process can be explained, defended, and repeated if necessary.

To take full advantage of TAR’s repeatability and transparency, you must ensure that a record of every step is recorded. Any good TAR system will have some sort of logging or audit functionality, but as I mentioned in Tip #1, this functionality won’t add value unless you know what it does and how to use it.

Tip #5. Post-Review Evaluation

A successful technology-assisted review depends upon three things: technology, human expertise, and a well-planned workflow. Unless you’re a software developer, the technology is outside of your control, so that means you’ll need to focus your efforts on improving expertise and workflow. Post-review evaluations are one of the best ways to do this.

After a review project is complete and you’ve had a few days to celebrate (and catch up on your sleep), it’s important to analyze the project while the details are still fresh in your mind. You’ll want to look for the things that went well and the things that didn’t. Was there an unexpected choke-point in the workflow? Do some of your team members need additional training? Answering these kinds of questions after every project leads to
continual improvement, maximizing the effectiveness and efficiency of TAR.

I’d love to hear your TAR stories.  What would you tell new users to look out for before beginning a TAR project?  Leave a comment or email me to discuss.

Instead, this blog will focus on what clients should demand from their service providers in 2012.

Demand #1:  A Technology Assisted Review Differentiator.

In 2012, clients should focus on the differences between service providers’ offerings and ask questions like

• What makes your TAR offering different?
• How are you a qualified TAR expert?

Demand #2:  An eDiscovery playbook.

Understandably, corporate counsel use different law firms for different types of cases—they want to top legal experts in a certain area of law.  This model doesn’t make a lot of sense in eDiscovery.

eDiscovery providers have eDiscovery expertise, that expertise doesn’t become obsolete when the subject matter of a case changes.  To the contrary, there are efficiencies to be had streamlining your eDiscovery and using one provider.  For example, it allows corporations to take advantage of volume discounts and to reuse data from case to case.  In 2012, corporations should work with their vendors to create an eDiscovery playbook containing their streamlined repeatable eDiscovery workflow.

Demand #3:  Reuse of their data.

These days, even occasional litigants have data that is relevant to multiple cases.  And,
there is no sense in paying to process, review and image the data twice if you don’t have to.  As my colleague, Chris Dahl, points out, there are some complications with reusing the data.  However, a smart service provider can figure out a way to do it.  Clients should demand this service in 2012.

Demand #4:  Flat fees.

Much as the heyday of the hourly law firm rate has passed, so too has the height of the per GB service provider model.  These per unit models both still have their appropriate use but the shift has to be toward a more predictable model.  Data sizes are skyrocketing and nobody has the stomach for high and unpredictable litigation costs. Thus, clients should be demanding flat fee arrangements.

Simply put—to save money. Reusing attorney decisions and other work across cases can lead to huge cost savings for corporations.  The three biggest cost savings involve leveraging privilege decisions, leveraging responsiveness decisions, and reusing production images. I will explain each in turn.

Leveraging privilege decisions carries the most savings potential.  When a law firm makes a privilege claim on a document for one case, that privilege claim should carry
through to all cases.  Conversely, when a law firm reviews a document for privilege and produces it, deciding that the document is not privileged, generally, there should be no privilege claim for the document in other cases.  Thus, leveraging a document’s privilege review history from prior cases eliminates the need for another privilege review in the current case.  This saves corporations the time and money associated with the most expensive and slowest type of review—privilege review.

Other potential time and money savings opportunities arise in cases that have similar substance, for example, a series of cases in numerous jurisdictions regarding similar claims, or investigations regarding the same regulated subject matter.  Carrying from case to case decisions based on subject matter can either eliminate subsequent review, or provide context for subsequent review which can help lawyers arrive to review decisions more quickly.

Another potential savings lies with production images.  Linking documents between  cases allows an eDiscovery service provider to leverage imaging work between cases.  Because each document only needs to be imaged one time, corporations can see large reductions in imaging time and costs.

Sounds Easy, What’s the Catch?

In order to leverage work across cases, the data and the decisions about the data (i.e. work product) have to be in the same place.  In today’s eDiscovery market, this poses a
challenge: no eDiscovery software handles the full end-to-end eDiscovery lifecycle, and no eDiscovery software handles a portfolio of cases on a client level (or at least no eDiscovery software handles these things well).  Tracking the work done across various tools, which don’t speak the same language, can be very difficult and time consuming.

This issue is often compounded when large corporations do not have a preferred  eDiscovery service provider.  Corporations often have many law firms managing their litigation portfolios and allow each law firm to manage processing, review, and production.  In that model, it is nearly impossible to leverage decisions across cases with documents scattered across many different law firms, service providers, and, consequently, eDiscovery processing tools.

So How Do I Leverage Data Across Multiple Cases?

Get organized. Streamline your eDiscovery by developing a repeatable workflow and asking all your outside counsel to follow that workflow.   Work with your outside counsel and eDiscovery service provider(s) to determine what that workflow should be.

Partner with someone with expertise. Sophisticated eDiscovery service providers create and utilize proprietary software to solve these problems.  This software links documents between various third party eDiscovery tools and enhances the current leading eDiscovery tools.  In addition, this proprietary software is platform-agnostic so it can adapt to new technology—a necessary characteristic in this constantly changing eDiscovery landscape.  A seamless integration between tools allows for clients to benefit from the latest and greatest eDiscovery software, and lays the groundwork for creating workflows and structure across cases.

Corporations which contract directly with a preferred eDiscovery service provider are in a much better place to leverage valuable decisions and processing work across cases.
A single service provider can work with a corporation to create structure and workflows across the entire litigation portfolio, positioning the corporation for a successful and more efficient discovery period on every case.

I’d love to hear about your experiences with reusing data across cases.  Please leave a comment or contact me to hear more about how Lighthouse is attacking these challenges today.

Given the explosion of email usage in the last 10 years, it’s become commonplace to send and receive personal email from business email accounts.  However, when you combine this with the widespread adoption of “employee electronic communications policies” (those pesky notifications along the lines of “all info placed on or set over this
system may be monitored”), you can easily slip down the slope of privilege waiver due to failing the “made in confidence” requirement of attorney-client
privilege claims.  The courts in Alamar Ranch, LLC v. City of Boise and Holmes v. Petrovich Dev. Co., LLC[1] ruled that communications between an attorney and client using the client’s employer-provided email system or via a company-issued computer were not protected by the attorney-client privilege because the person sending the email had no expectation of privacy/confidence.  Specifically, the regular electronic notifications to the employee regarding the employer’s electronic communication policies removed any expectation of privacy on the employee’s part.

The courts have taken a similar stand where employees use or access web-based personal email accounts on employer computers or across employer systems to communicate with their attorneys.  In Stengart v. Loving Care Agency[2]
(a discrimination suit), the plaintiff (an employee) discussed the lawsuit with her attorney using a personal web-based email account on her work computer.  The trial court found that the emails were not covered by the attorney-client privilege because the employer’s electronic communications policy stated that the emails would be viewed as company
property.  Although the trial court’s ruling was overturned on appeal, the lower court’s ruling was a warning shot across the bow to all attorneys regarding how, when and where you communicate with your clients.

The most obvious trap of the three is also the most prevalent.  How many of us use cell phones, smart phones or laptops in public places such as commuter trains, airplanes, on the street, in coffee shops, malls or even the public lobby of your office-building?  More than one attorney has fallen victim to talking about confidential information in a public location or having a “privileged email or memo” read by a seat-neighbor on a plane.  The experience of a Pillsbury partner’s discussion of layoffs within the firm on a commuter train in 2009 is famous enough to merit a mention on Wikipedia, Above the Law and the other legal blogs (if you’ve not heard of it, just run a search for “Pillsbury 2009 layoffs”).  Although not rising to the level of attorney-client privilege in the Pillsbury incident, how many of us have communicated with a client over a cell phone in a public location?  Are you sure you never discussed attorney-client confidences where
members of the public could overhear details of the conversation?

Before you relax, having assured yourself that you never crossed that line, consider the following story.  I recently flew down to California on business.  During the flight, while working on my laptop, I noticed that the person sitting across the aisle from me was working on his laptop.  A few glances during the first half of the flight alerted me to the fact that he was an employee of one of my clients.  Fortunately, I had not been working on confidential materials on my laptop, but it was a tangible reminder of the potential for damaging a client or your relationship with the client by failing to consider your surroundings when working on confidential information.

Remembering these three tips can save you from embarrassing and potentially costly discovery-related mistakes.

• Unless absolutely necessary, don’t email your non-corporate clients at their work email address or at least remember not to discuss attorney-client privileged information.
• Remind your clients not to view or send emails containing privileged information via their personal email accounts on work computers.
• Finally, be aware of your surroundings when conducting business in public places.  If in doubt don’t say it or write it where others can hear it or read it.