Early Case Assessment and Emerging Trends in E-Discovery

Last week I talked about how the adoption of Cloud Services is being slowed somewhat by the lack of a certain component. The analogy I drew for the missing component was a device that performed the functions that a cable box does for your home entertainment system: identification, security, access control and bandwidth mitigation plus billing monitoring and management services. The cable box is a component that sits at your home and “hooks you up” to the cable and internet service in “the cloud”. For data management and electronic discovery I would like to explain how we at Digital Reef are beginning to participate in these kinds of cloud “on-ramp” services for our ediscovery customers.

The class of customer deploying our software in the manner I am about to describe (“the hybrid approach”) is generally a Legal Services Provider or a company in the business of providing classic collection, processing and identification (culling) of relevant data for court-related matters or compliance directives. The legal service provider was in the business of collecting or accepting data from customers and processing it and culling it to find the subset of documents that are relevant to a case. They historically have been brought into a company on a reactive basis. Their expertise in doing this legal processing accurately was the core value-add they provided to their enterprise customers. These service providers are finding a more efficient method of delivering their services that include new technologies and their own hard-won expertise.

The prior process causes them to spend many man-hours of effort collecting data and then bringing it back to their data center to crack it all open, understand it and find the relevant documents, emails or other “stuff” (pictures,  voice messages) for a particular lawsuit or “matter”. The new hybrid method is much more efficient and still leverages their core expertise around proper ediscovery collection and control of digital information.

It is well recognized that the reactive process is very expensive, prone to error, and time consuming. The recession of the last few years and the advent of new technologies have both forced a change in user behavior. Enterprise consumers (General Counsel and CEO’s) have rebelled against the status quo of reactive collection and asked their staffs and their service providers to rethink the way that electronic discovery is done within the enterprise. The model that is developing is taking two paths simultaneously:

1.       More in-house analysis of archives and data repositories (not everything ubiquitously yet but a definite move in that direction for well known repositories) to make discovery less reactive

2.       The use of “intelligent” flexible services that are implemented both behind the firewall and “in the cloud”. The legal service providers are moving to a new model where they “wheel in” technology that lets them perform some of their classic functions outside of their traditional data centers and then augment this with further analysis and aggregation capabilities in their cloud operations.

 

Technology Precipitating Change

 

Historically this processing has all been done manually in a service provider data center, but now that ubiquitous network connectivity is available, and networking security has been proven to be effective, a combined “hybrid approach” is being taken. This, like your cable company method of providing you data and entertainment access, is beginning to involve equipment on the customer/enterprise premises and a service capability in the cloud. The legal services provider supplies some local processing expertise and assists with intelligent analysis and collection by deploying local processing technology. The legal service provider augments this local offering with services in their data center in a “cloud model” where the customer can consume services as they need them. The customer gets expertise, technology and implementation of data processing services as an operational expense. The customer gets scalable infrastructure and access to services that would be hard for them to develop in-house. The corporate customer avoids large initial investments in hardware and software infrastructure.

This model is evolving for a number of reasons:

1.       Customers want a more “targeted” efficient collection of the data that is relevant to a matter or regulatory action. They don’t want to continue to pay for the processing of data that is found to be irrelevant.

2.       Customers are asking for services that they can buy as they need them and that require specific expertise but that they would not otherwise acquire and maintain in-house with their own people. They are asking for technology-assisted approaches to the problem of electronic discovery to save manual labor and inefficiency in the process. They are asking for more analytic tools to help them understand what data they have in certain locations so that they at least know the most likely places to look when litigation mandates discovery to be undertaken.

3.       Customers don’t want to expose their data to anyone outside the corporate firewall for security reasons and for compliance reasons. Customers find it more consistent with corporate security policies to index and collect data behind their firewall than to send data outside the corporate security perimeter for indexing and analysis. For example, finding confidential items in data before it is sent out for processing can allow the enterprise to avoid further liability. Sending data outside the corporate perimeter that may be sensitive in nature and then later found irrelevant to a matter requires the corporate security officer to accept some risk and liability for no benefit in return.

4.       Customers are looking for cost-effective solutions that include buying expertise from a skilled service provider who can perform the intelligent cull of data inside the enterprise firewall with an Early Data Assessment tool or set of tools. This reduces the risk of performing an improper of incomplete collection. Consumers are becoming educated enough to realize that the analysis and collection of data for a legal matter requires specific skills and techniques that they don’t necessarily maintain within their own organization. The service provider is the trusted advisor to the customer and oversees the intelligent collection of data.

5.       Customers are finding that their legal and regulatory matters pertain to data in lots of places and it is mandatory to index data in a number of locations and then view the data as a single collection of documents. Given this global nature to the data, customers of the service value having a service provider that can host all the data for a given matter, and maintain it over the life of a case. Also, the customers of these services rely on the service provider for hosting of all the data for their matters and for their retention capabilities. This relieves the customer of the burden of maintaining infrastructure within the enterprise for retention of data throughout the duration of a case. It also provides a location that can house all the data for a matter and also that provides one view of the data for the legal staff working the case.

Please see Figure One (below) for an illustration of the hybrid model of legal service delivery. The figure shows a data center where a legal service provider hosts many matters for a client and also deploys some local collection “gear” as part of its service offering to that customer. This model of service is often billed monthly. Archiving and other services (per matter are also billed monthly) this allows the corporate customer to avoid maintaining large amounts of in-house storage for legal hold and analysis

Please see Figure Two (below) for a depiction of the virtual repository component that “maps” the many sources of data that exist and in which relevant data for legal matters may exist. SharePoint servers (sometimes hosted at off-premise locations) and email servers and file storage systems (often at many different locations) may all contain relevant data for a legal or regulatory matter.

 

Figure One – Local Processing with Hosted Discovery

 

 

Figure Two – Many Locations for Potential Case Data

 

 

 

Hybrid Service Approach

 

To date, there has not been much of an alternative to the old reactive model of performing ediscovery. Now that the scale and performance of servers running software like Digital Reef has improved the processing characteristics of these situations it is possible to perform the analysis of case data in-house and then selectively send the data to a data center for hosting and review. With the Digital Reef approach of “portable collections” indices, documents, analytic data (TAGS, classifications) can all be archived and retained safely for review in one location.

Figure Two (above) shows the on-premise intelligent component from Digital Reef. This component can identify files in their native locations, process and index them, and then allow operators to analyze the data descriptions, indices and documents themselves. The intelligent component (Digital Reef) can allow the legal service provider staff or enterprise IT staff to enter policies into the devices so that many analysis functions can even be automated. For example, the Digital Reef software can be “programmed” (with a policy editor included in the product) to find all emails from the sales force of company “XYZ” that are sent to certain customers between a given timeframe and that reference purchase orders, invoices or solicitations for sale (via semantic analysis of the content). These emails may be in SharePoint servers or in the email system, or in a file system in a back up directory location. These may be in a PST file or other archive.

The intelligent collection component can identify these emails, exploding PST files as necessary, identify them as meeting the criteria of “business record” (because of the policy definition) and then move them to a legal hold area or a review area for attorneys.

The index of data that contains these items can be marked with their classifications noting that they are business records. The documents and the index can be sent to the service provider location on a scheduled basis (again see Figure Two) to lock these records into a repository of documents relevant to a given case. This process is an “Action Flow” as defined within the Digital Reef product. It automates many of the time-consuming functions of identification, analysis and review of business records that plague the legal discovery process. Because the technology can automate many of these tasks, a vast amount of data can be processed indexed and managed. More data can be managed this way than would be feasible with manual means. With the addition of the service component in the cloud, the indices and the documents that pertain to retention criteria can be stored cost effectively.

The hybrid service approach is possible with technology like Digital Reef that securely communicates between equipment running analysis operations on data within the corporate firewall and that which is maintained by the hosted service provider in a data center. By performing analysis on data in-house before it is exposed to opposing counsel or other consultants, only relevant data is sent out of the corporation. Furthermore, the data that is sensitive that pertains to a case can be tagged as “confidential” before it is moved anywhere. Intelligent processing elements like Digital Reef can also encrypt data that is sensitive so that it can be stored at the data center location and only “unlocked” by the appropriate individuals. All chain of custody information that notes what data items moved to the cloud and why they were produced and placed within the “custody billing system” is stored by the Digital Reef system.

Due to this functionality the security risk to the corporation is more contained than it would be otherwise. The customer also gets the benefits of scale from the service provider facilities. Additionally the customer does not have to maintain large systems and infrastructure in-house with personnel having rare skill sets that can be uncommonly expensive.

In this sense, Digital Reef is the “cable box” performing valuable functions inside the corporate firewall and hooking the enterprise data into the service provider infrastructure. Digital Reef in the cloud accepts documents and indices that pertain to a given matter and puts them into the appropriate storage locations for a given customer. If a customer has 100 branch offices the Digital Reef solution can collect and then store the indices and data for all of those collections in one single “case view”. The corporate attorneys or their outside counsel can search these documents at any time, or request that the indices be brought down to the corporate side of the service boundary so that they can be searched locally. This service approach makes much more sense than building corporate infrastructure that serves the needs of one case and then has to be torn down after it is completed.

 

 

The hybrid approach is truly a service like a cable and internet provider would supply to their customers. Instead of entertainment and internet access, the service provider supplies specific data processing and analysis expertise to the customers who have the Digital Reef cable box on their premise.

Summary

The Hybrid Approach of having some service components on the corporate premise and some “in the cloud” is emerging for applications in the governance area like electronic discovery. The ability to buy services that deliver specific expertise and the appropriate amount of infrastructure to corporations as they need it justify the emergence of this business model. It is an emerging trend that will be watched and evaluated closely by a lot of companies.