The Evolution Toward a Utility Model for Ediscovery Services

In my last post, I wrote about ediscovery in its present state and illustrated how it seems almost “medieval” in some ways. The analogy was drawn between medieval age blacksmithing and “modern” legal discovery practices. If one has ever visited a legal discovery processing company they will probably see at least a faint reference to my analogy (http://www.buzzle.com/articles/medieval-times-blacksmith.html).

 Medieval blacksmithing was a hot dirty business with lots of manual labor being expended by very skilled individuals. It was an art and a science rolled into one magnificent endeavor; and this seems to be quite analogous to the legal discovery practices I have seen. The insight and diligence of those who work in this field is obvious to all who witness the work; much like blacksmithing was in ancient and even not so ancient times. Where blacksmithing required insight and talent and diligence; so does legal discovery processing and analysis. The effort and expense the present day methods of electronic discovery require is as daunting and impressive as the manufacture of swords or armor in the Middle Ages. 

Evolutionary Process

Anyone who has walked into a legal discovery processing “shop” is usually greeted by a bunch of PC’s on racks with a number of human operators walking from one to another. Data is usually copied in batches and logs are kept as to who has what on certain machines. Bigger “outfits” are more automated and sophisticated, but the analogy is that long ago someone built the racks of equipment and invested their hard work into relationships and the building of processes that lead to good discovery outcomes. In some respects these companies built a “forge” in a central place and then began using it on a job by job basis, much like the medieval blacksmith did when he set up shop and started building swords and making armor. This capacity had a finite limit and was valuable, but it did run into the bounds of time and space and could only produce so many swords or suits of armor in a given time. The services were valuable however and indispensable; only until more modern times did the limits of production capacity get addressed. The process of blacksmithing evolved to a more productive model which expanded productive capacity over time. Legal discovery will likely follow a similar path; thanks to the capacity service model and cloud computing. It will be an evolutionary process, however, for a number of reasons.

For legal discovery; the businesses that began years ago grew up over time and built a series of processes that rely on staid and stationary technology provisioned in one central place and used over and over again. The expertise in collecting data and managing projects and performing legal processing likely grew together with this technology and infrastructure as a package offered to customers as a total service. For large litigation this is still the way that a lot of Ediscovery is done. As litigation grew this process became recognized as a large expense and the cost of this service began making customers question the method of strictly using outside vendors for Ediscovery. Alternatives to the legal service provider approach were explored as a result.

The prediction of the extinction of the legal service provider processing shop (the blacksmith) also has not and probably will never come true. There are many reasons why; chief among them is that legal discovery is not “just search” and is in fact a “market basket” of skills and abilities along with very specific large-scale data processing. A company wishing to achieve a legal discovery capability has to start with building infrastructure but there is more to it than hardware and software acquisitions alone.

There was a lot of talk about bringing this Ediscovery process “in-house” by mostly large corporate clients, and further talk of “the legal service provider becoming extinct”.  As stated above the cost of legal processing services were cited as the main impetus for moving this processing in-house; another was to show regulators that some measure of action was being taken to become aware of the content within employee communications. Initially these reasons seemed to justify the expense of an in-house deployment. Many large corporate entities bought legal discovery technology, or attempted to use existing “search applications” as legal discovery tools, but the results that transpired from this were reportedly “mixed” at best. .

Corporate IT managers found out a few things along the way with implementing the legal discovery process in house:

1. The capital equipment and the software license expenses to run this kind of software are huge if not extensively prohibitive.
2. The training costs for staff that run and maintain these systems are large and never-ending.
3. The storage requirements alone for the indexes and the legal hold locations can take months to provision and involve huge operating expenses and above all management overhead to keep running.
4. The servers that are required for a corporate installation of electronic discovery technology can be very extensive; one installation I know of (at a major US corporate headquarters) was projected by the vendor as requiring 75 servers and 10 Petabytes of storage. The cost of this would have been into the millions with storage and software costs alone. The network and other components though becoming less expensive, were projected to be considerable as well.
5. The sporadic nature of the average large Ediscovery project also makes the provisioning of systems and storage for this purpose alone hard to justify. Months may go by after an initial deployment and use of the technology. Very little activity can then occur for months while the case involving an electronic discovery matter progresses through the courts and litigation process. Equipment provisioned for an initial data assessment can sit idle for months while the results of the analysis are debated by the legal teams.

Aside from these more or less “hard physical” realities, the cost of proper forensic collection and the project management around electronic discovery projects were not avoidable by bringing technology in-house. I would even anecdotally argue that in some cases it caused corporate counsel and managers to spend more than they had previously on these consulting services. A capacity services model began making sense to users as they tried to employ their own electronic discovery service to “save expense dollars”. Some legal service providers were advocating that they could set up and operate equipment and software internal to corporate operations as a service to save money. These have had some success, but largely have run into the same issues that the corporation itself experienced. Provisioning individual instances of electronic discovery capacity behind corporate firewalls is expensive and hard to justify as an ongoing business process. A flexible capacity services model make far more sense for this type of application.

 Like the blacksmith, a knight could have conceivably purchased a forge and attempted to make his own armor, but it would probably have been a better use of his time to practice for battle (his core competency) in case the castle was to come under attack. Letting the blacksmith make the armor and the knight put it on and use it was probably the best use of everyone’s time in the Middle Ages. Having the legal service provider collect and process data and provide electronic discovery services while the corporation builds its product or provides its service is likely to also be the best division of labor in this context. It seems like corporate counsel and IT staff and legal service providers themselves are coming to this realization.

The pendulum is swinging back to where corporate and even service providers are realizing that the in-house model seemed like a good idea at the time but that legal service providers are still a necessary part of the legal discovery “ecosystem”. Leveraging the power and security of “The Cloud” for both corporations and legal service providers appears to be the most cost-effective way forward.

The Next Step in the Evolution

Because of the expertise involved with Ediscovery it requires more than pure technology to implement a service around the application. As we saw in the earlier discussion, those seeking to build an Ediscovery capability in-house quickly find that it is a very specific vertical application that requires far more technology than enterprise search products provide. With the addition of the provisioning difficulties around storage, servers and networking infrastructure, the cloud model “screams out” as an answer to the dilemma of getting elastic electronic discovery capability into the hands of corporate IT as well as legal service provider organizations. Organizations which have the need to suddenly enjoy “burst capacity” around processing large amounts of data, or that require access to processing and analysis of many small matters; realize that a capacity services model makes tremendous sense.

The next step in the evolution toward a true elastic electronic discovery service involves sophistication around provisioning and monitoring of service components in addition to the work that is being done to provide reliable and secure computing and storage infrastructure. Regular compute and storage or archiving services don’t have all the processing capabilities that an electronic discovery service must provide. These would include:

1. A customer self-service “on-ramp” where data can quickly and easily be introduced into a cloud service location
2. An initial processing analysis and reporting function that allows a customer to “self-assess” some content that relates to a given matter (“try before you buy”).
3. A subsequent deeper analysis and export function that removes irrelevant documents that do not need to go to linear attorney review; this is often referred to as “Early Case Assessment”.
4. An eventual linear attorney review function that can allow collaboration and group analysis of documents; including sampling and validation of tagging across various groups of reviewers.
5. Document export, Bates stamping and “production” services.

The Ultimate Solution

There is a service planned that incorporates these critical functions; and it will aid both corporate attorneys seeking analysis and review service in a “capacity services” model of “on-demand” operation, and the legal service providers who may use this “burst capacity” service as a basis to support their professional service opportunities. It is clear that this is well beyond what is offered by hosted service providers, archiving vendors, or plain storage and server cloud providers. The future of this industry will be in providing this sophisticated set of Ediscovery services in a “cloud model” and with less of a component technology model for providing software or hardware on demand.

The electronic discovery process needs to account for the location and temporal nature of data and communications that it represents plus some sophisticated “accounting” of where the data originated. Search and analysis portions of the process must account for these specific attributes in data objects that most enterprise search products don’t address. Also there are intricate processing functions in terms of how documents are produced for legal discovery that must be respected. In other words it involves more sophisticated processing and analysis and production capabilities than exist in the Cloud Services we use presently.

In my next post, we will discuss the electronic discovery service and what it entails in detail. The reader will be able to see why this service will be received so well and why it will be so valuable.