Electronically Stored Information Is Fluid...Why Aren't You?

If discovery has taught us anything it is that it's constantly evolving.  From the actual data being requested to the savvy legal techniques attorneys use to gain access to the data...it's constantly evolving.  Unfortunately law firm internal departments may be placing their clients in harms way as they continue to develop internal methods to review electronically stored information.

We are in a technology era that demands "he who has the most toys wins!"  We've all heard the stats spieled by every sales initiative in the industry..."over 99% of all communication is electronic"..."Over 10 billion emails are sent out everyday"..."Email is the the #1 means of communication over the telephone"..."text messaging is the new way to whisper"...actually I just made that last one up but it sounds pretty good.  They all do actually which is why virtually every legal expert agrees you can't litigate without accessing the ESI.  However there are 2 facts that you cannot dispute.  The first is that corporation rave to remain on the edge of state of the art technology.  The second is that outside counsel is always trying to catch up in an effort to secure tech savvy companies as clients.  And while most law firms have created internal departments to handle electronically "received" data from a service provider very few are cognizant about one ultimate and important fact...data is fluid.

In the world of electronically stored information no one data set has the same fielded meta data of another.  So what does that say when an internal law firm department is requesting the same static fielded information from their service provider?  Indeed some if not most data sets have similar fielded information but the static "coding field" approach that was used when documents were scanned and bibliographical coding fields were created simply cannot be the same approach to electronically stored information.  In addition, if you're ignoring foreign language documents simply because your internal database solution is not unicode compliant you're just asking the court to spank your clients check book.

For some of the reasons mentioned, e-Discovery enterprise providers are opening a wider market door because of internal department limitations to see and address the fluidness of ESI.  They are very much pushing service providers to the way side governing the way service providers can have access to their platforms and how service providers can price their services in support of law firms.  The idea...remove the service provider completely and create a "new" kind of service provider.  One that is completely reliant and controlled by the actual software provider.  The problem here is that internal departments may not need a tank to do a shotguns work.  So smaller cases will suffer in the name of capitalism.

So what is the answer?  There are a few actually.  Here are my recommendations:

1. Stay on top of the e-Discovery trend.
2. Implement a system internally that allows you to "see" all the meta data that is part of a data set and then determine which fields you want to import into your review system.
3. If you're not unicode compliant get up to speed.  You need to have the ability to not only search across english documents, you should be able to search across all languages identified in your data collection.
4. Beware the one software solution platform that does it all.  yes it may be excellent but sometimes things come up mid-stream and if that platform cannot address your need(s) for revision you are S.O.L.  Some may claim one platform that can do everything is the better solution but I personally disagree.  A Service Provider that can can handle every phase of the EDRM is probably your better bet and the ability to Q.C. and address at any stage without interrupting or delaying the flow of other data that needs to be processed is golden.  
5. Don't get caught up in the lie (and yes this part is self serving to Litigation Logic) that yes you may be paying more but the quality is much better.  Quality is based on communication.  I've dealt with clients who refuse to answer the phone and will only respond to emails.  That's a lack of communication.  Relationships are relational meaning it takes two sides.  A relationship is not just you receiving.  The best relationships are the ones where both sides put in the time to ensure a perfect product.  Not just one side expecting and the other side doing.

I'm an advocate of internal departments however there is an increasing trend to circumvent internal departments and go straight to the client.  Initially it was monetary but eventually it will be because internal departments take to long to adapt to the fluidness of data and its requirements.

-Anthony Martinez - Litigation Logic - Chief Executive Officer

About Anthony Martinez:

Anthony Martinez is a discovery expert with over 15 years of advanced discovery technology and processing experience.  His company Litigation Logic is one of the leading technology service providers in the industry today offering a full spectrum of electronic discovery services.  Litigation Logic has provided services to over 30 of the top 100 AMLAW firms as well as major corporations.  You can visit Litigation Logic at www.litigationlogic.com.