DiscoveryMining

Project Management. This is one aspect of an eDiscovery project that is critical to your case’s success. Your Project Manager needs to understand requirements, define the project scope, and actively assess risk, as well as identify and communicate change requests that either affect your overall review strategy and/or your project budget.

The importance of a competent eDiscovery Project Manager isn’t the topic at hand however. We already know the critical nature of this role when engaging a project that essentially turns unstructured datasets into structured datasets. Rather, I would like to raise the question “How do we account for this type of service from a cost and budgeting perspective?” Do clients prefer to have this service built into the costs of processing and hosting their eDiscovery project or is it preferable to separate the cost as a line item all together?

Here at Discovery Mining we provide Project Management services as courtesy to all projects, whether it is a 2 GB case or a 20 TB case. Your Project Manager is responsible for the coordination of the forensics and collections, data processing, reporting, training, supporting and ultimately, the production process. From end to end, the Project Manager is your advocate for the Discovery Mining system and with a partnership approach in mind, they will guide you on how to best use Discovery Mining in order to reach your goals. This is all built in.  If you request something that is outside the normal scope of support, are we going to charge you?  Sure, but we always let you know up front in case you want to change your mind. 

Other firms in our space account for these services differently. The services outlined above are all billed by the hour. Do you have a question about a processing report and need to pick up the phone to speak with your Project Manager? You can expect another one-hour “Project Management – consulting” line item on your invoice. Receive your invoice at month-end and need more details on what this one-hour fee was for? Pick up the phone and call your Project… actually, that may not be the best idea as that may result in another hour billed.

Some may argue that splitting the processing and support charges provides transparency during the budget planning and vendor selection phases. I think it does quite the opposite; as accurate project scope is often unclear at the onset. Is it reasonable to expect one to be able to make accurate budget assessments of how many Project Management hours will be billed based on GB count and the expected duration of the review period?

I believe our approach of providing Project Management as a courtesy service is not only key to the success of your discovery project, it is also key to keeping your costs from skyrocketing due to unforeseen billable hours of Project Management services. If your costs do skyrocket, it is more likely due to the handful of custodians at your client’s Timbuktu satellite office that happened to have been forgotten.

One of the first things we did on founding Discovery Mining was join the Yahoo Litsupport group. This was, and still is, though to a lesser degree, a very useful insight into the issues facing litigation professionals. One of the topics that always intrigued us was how much people seemed to like TIFF images; as pioneers of native file review, it was a mystery to us why someone would wish to see a “picture” of a file rather than the real thing.

Another favorite topic was vendor-bashing. Many of those posting to the group would go to great lengths to make sure that they prevented vendors from expressing opinions, even if those opinions were based on experience and likely to be useful. No doubt some had been “burned” by unscrupulous providers, shamelessly claiming to resolve every complicated issue at a fraction of the price of their competitors by “first thing tomorrow morning” but it seemed the resentment was often much deeper than that.

It’s a pity that we all get lumped into the same category; at Discovery Mining, we pride ourselves on the quality of our customer service. A team of professional project managers and customer service representatives, headed by our VP of Client Services, provide on demand support at no charge to our customers. Internally we take this role so seriously, we have dubbed our VP as VP of Customer Happiness!

So I certainly will avoid any generalized client-bashing, but I would like to offer up some thoughts for improving cooperation and trust.

Law firms tend to be slow and disorganized when it comes to paying vendor bills. Often an invoice will sit on a partner’s desk for any time up to several weeks before it is re-billed to the client, and our invoice may not be paid until the law firm’s bill is paid. Many of our bills never seem to find their way to an accounts payable department, so tracking their payment status can seem like a job for a private investigator. And how many times do we hear “I never received your invoice, please send a copy”? Aren’t we all such Discovery experts that we can tell exactly when our email with the attachment was delivered?

The result of all this is that it represents a great victory for us when we keep our accounts receivable under 90 days. Unfortunately, however, that is a lot of working capital to finance, and distracts from our main focus of providing timely cost effective discovery services!

Prompt payment allows better cash management, which in turn allows prices to fall. I know I am speaking for the whole vendor community when I wish for the reduction of payment friction, and the benefits we all reap when any type of vendor/firm friction is reduced.

I just read Craig Ball’s post about using keywords to search for privilege, then producing the resultant set. He lays out a nice argument for eDiscovery keyword search, which he calls the “blunt instrument”. Search is a great tool for many purposes, but I prefer to frame it in terms of Analytics versus Review.

I take Review to mean exactly that, reading documents. Users look at the documents, review them (read them) and then make a decision based on strategy or obligation. Analytics is also the reference point I would use for conceptual or topical searches. Both functionalities analyze the data and allow you to logically group the documents into ‘like’ buckets. Discovery Mining offers the latest in all of these technologies, semantic and keyword, plus the analytics for grouping documents, yet I would not call this Review.

It is tough for me to admit, because I am a search engineer at heart, but nothing beats a good set of eyes on a page. There are studies which make the case that computers are just as effective at making a determination of relevance as humans. But with everything that is at stake, I understand why Attorneys would want to ‘eyeball’ documents before they go out. At Discovery Mining, our clustering and semantic analysis combined with keyword search is a powerful method to trim a collection, but this is only part of the eDiscovery process.

We continue to design with our intention toward streamlining the review of massive volumes of data because increasing data volume truly is the core issue for eDiscovery and why you need analytics in the first place.

Discovery Mining has been operating in the EU for just about 2 years. This experience has given us a clear understanding of Directive 95/46 EC. This rule, adopted in October of 1995, lays out with great specificity the ways in which corporations handle the right to privacy for their employees. Many vendors in the E-Discovery market claim that being Safe Harbor certified will keep them in order with Directive 95. However, this article recently posted at Law.com provides the bigger picture and makes me glad we have a full processing and hosting center in the EU.

I’m not aware of any precedent set for bringing data to the US under the guise of E-Discovery and having the Safe Harbor certification ‘tested’, but I sure wouldn’t want to be the first. As the article goes on to say:

The Safe Harbor is not a practical solution for the discovery process because it only permits the export of the data, not any further processing. The prohibition on further processing would make the data unusable for discovery, since any document production and review activities that take place in the United States are likely to fall within the scope of the “processing.”

Just to point out another catch when following the directive… if you are issued a subpoena, you’re stuck violating either EU or US law. As the article goes onto say, there are other ways to get around this, but they are typically time consuming and costly. If you violate the Directive, there are real penalties to pay. The French data protection authority levied a €30,000 fine against Tyco Healthcare France. So what’s an International Firm or Multi-National Corporation to do when trying to comply with a discovery request?

The answer is to find someone who can fulfill your request on both sides of the Atlantic. If you want to guarantee that you are following the US best practices and complying with EU privacy rules, you’ll need someone who has operated on both continents with full facilities for some time. Discovery Mining has been involved in many cases where the US based company needs to fulfill a discovery request, but has data in the EU as well as the US. It allows the corporation to contract with one company and know they are following Directive 95/46 EC. If you have international clients that do business in Europe and Canada, don’t rely on a vendor being Safe Harbor certified. You may find yourself stranded on a legal island.

Maybe it’s the heat wave that is moving across the usually moderate San Francisco Bay Area that has got me in a certain mood today, but when I read the recent post on the Clearwell blog attacking Kazeon, it struck me as misplaced. The post refers to the boilerplate on a recent press release put out by Kazeon, in which Kazeon claims they can deliver in-house processing of ESI in preparation for eDiscovery for as low as $4.30 per Gigabyte. The post questions what you can get for only four dollars and some change then compares it to seeing a 20 cent per gallon gas sign saying …“it may be cheap, but it’s probably not gas you’re getting.”

I don’t see anywhere in the Kazeon press release where they claim a client will get every service listed for the $4.30 price point, yet this conversation got me thinking about setting prices and how we can look at a case in its entirety rather than only one aspect of a very complicated process.

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Yesterday was Discovery Mining’s 6 year anniversary. This is a big milestone for any company. Over the last 6 years we’ve seen the E-Discovery industry grow quickly, become a “hot” market, and show signs of maturing. When we started Discovery Mining, we had no idea the ride we were in for. Even today, the evolution and sophistication of our client is moving at such a rate it feels like we’re sprinting a marathon.

We could not have done it without the great people that make Discovery Mining what it is. This is a tough market, but the faces above are just a few of the people who try to make a difference for our clients everyday.

Pictured above is the staff from the Discovery Mining San Francisco Headquarters. Not yet added are our teams from the Discovery Mining New York, London, Chicago and Washington DC offices.

This week the world of Web 2.0 converged on the Palace Hotel in San Francisco. Most of the hype surrounding the new web is about social technologies and the way we interact with each other using technology. This got me thinking about how it applies to E-Discovery. The outward appearance may look different, but the underlying element of the new web frontier is still search. In E-Discovery we are well aware of the issues of general keyword search, like finding a needle in a haystack. However, I’d like to repost some thoughtful comments from Nova Spiviack, the Founder and CEO of Radar Networks, from his presentation at the Next Web Conference in Amsterdam (Nova and Discovery Mining’s CEO Matthew Work used to work together in a previous life).

Here’s what Nova had to say about next generation searching on large datasets:

Keyword search engines return haystacks, but what we really are looking for are the needles . The problem with keyword search such as Google’s approach is that only highly cited pages make it into the top results. You get a huge pile of results, but the page you want—the “needle” you are looking for—may not be highly cited by other pages and so it does not appear on the first page. This is because keyword search engines don’t understand your question, they just find pages that match the words in your question.

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Analytics and social links are becoming very popular in e-discovery. Certain tools claim to be able to provide you with the number of links between two people in a document collection. Does this help? Can you find what you’re looking for faster? Maybe, but I don’t believe it is the magic bullet that will make other methods obsolete.

You may have heard of the 6 degrees of Kevin Bacon, but the real game started with a Hungarian Mathematician named Paul Erdős. Colleagues of Erdős referred to an Erdős Number to describe the “collaborative distance” between an author of a mathematical paper and Erdős himself. This study has lead to some very interesting models of graph theory, namely “social connectedness”. Within infinite communities, even the entire web, you will find that individuals are closely connected. The average Erdős number for any self respecting Mathematician is 4.65, which means that a majority of published Math authors are within 5 degrees of Erdős. I once had a Professor with an Erdős number of 2 and even Bill Gates has an Erdős number of 4.  What does this mean from an e-discovery perspective? Well simply that clustering around people is an interesting concept, however in homogeneous document collections you’ll most likely find that everyone is closely connected to everyone else regardless of significance.

Think about your company, or firm’s, email. I bet you have a very close degree of distance between you and somebody who may be in a different office altogether. While I believe that using social networking features in e-discovery is a step in the right direction, based on the connectedness of any organization, we may just be adding a neat “wiz-bang” graphical feature that does not really tell you something you don’t already know. I believe that there are applications of social networks in e-discovery, but telling me that Person X is connected to Person Y through Person Z doesn’t give me anything. I could have looked at the org chart and determined the same thing without spending a ton of time and money. I think this is going to be an important feature set in the future, but for now I think I’ll pass.

In Sedona last week we were discussing QC and sampling mostly. However, a short sidebar happened surrounding the ability to get data from one system to another. As I mentioned in my previous post this is becoming more and more important to our clients, which means we need to be moving toward an accepted standard, whatever that may be. We not only need to transfer data between vendors, but also across upgrades.

This week at Discovery Mining we’ve heard from more than one client about the problems with data portability within internal software applications. Specifically upgrading from Concordance 7 to 8 (a.k.a. 2007). I’m not a Concordance expert, nor do I pretend to be, but this example screams for a universal standard. The specific issue our clients were experiencing was the inability to view some new databases that were created in the new version with the old version 7. Because databases converted to version 8 cannot be viewed by 7.3 backward, the client is left with a big headache, to say the least. The upgrade process is time consuming and expensive. I’m sure there’s a workaround, but for most cases workarounds are not adequate.

Having a data portability plan and standard will help with a situation like the one described above. I’m looking forward to continuing the efforts on this front, and trying to stay technology agnostic, but as Google just opened up their platform maybe litigation support can follow the leader. Google has opened up the entire platform and lets you mashup almost every service using a series of open web api’s. Yes, you need to know Python, but hey, it’s a start. In 30 minutes I was able to build a silly little test app here. My app doesn’t do much but as you can see it’s integrated into the login/users data of Google. Amazon is the leader in this area with their AWS, but this is not about web services.

As the larger data intensive companies know, being open to standards ultimately helps everyone. I think we should all consider the efforts of the EDRM XML group and petition The Sedona Conference to weigh in and influence the bench, thereby, helping and influencing the industry.

On a flight back from L.A. last week I was reading the Economist, which I try to do regularly. In the March 22nd issue there was mention of social networks. The substance of two articles, “Everywhere and Nowhere” and “Break Down These Walls“, covered the rise of the ‘walled gardens’ we once had with AOL, Prodigy, and CompuServe. As the Internet matured and opened up, the question became why would anyone live in just AOL, a proprietary platform, when there was a whole WWW out there to explore? Over the years the world realized, mostly through the launch of Netscape, that open communication standards and data portability are long term winners.

So when I read Craig Ball’s article from Tuesday it got me thinking–are we propagating the mentality of web circa 1994? I would say Craig’s skepticism is expected. When I first learned about the EDRM XML project, I too had reservations. However, we do need something to help the data portability problem. But is this the right way to handle the portability issue? I have no idea and I don’t think this is actually the central issue. What is at stake is the ‘openness or lack of openness’ of our clients’ data to move from one system to another, and this is not a trivial issue. It can involve tremendous cost–not only price, but also time.

When a market matures standards tend to emerge. This pushes competition more towards increasing the value of their product offering, which is a good thing. This is exactly where the eDiscovery market is–ready for standards. We need to introduce a standard to the market; the first standard out may not be perfect, but it will push vendors to compete on value adding initiatives. We hear it all the time… “I’m having such a hard time with vendor x, but there’s nothing I can do. My data is being held hostage.” We do a big dis-service to our clients if we don’t offer a standard in terms of data portability.

As the social networks are proving, there is value in data portability. eDiscovery vendors need to conform to some basic standards so that we can then compete on our merits, and keep turning up the heat on innovation. Is XML the way? I’m not certain, but I’m willing to give it a try. After we investigate one area maybe we’ll uncover an even better approach–why not open up the web platforms to an API which allows anyone to write some code or move the data? Most of the work on the XML schema is working with text files. Any self respecting Perl programmer could quickly design and test to see how it works.

Implementing standards takes time and before one ’sticks’, there will be a few that fall down. I say let’s try. What do we have to lose? What we have to gain is increased innovation, and that’s good for everyone.

I’m sure we’ll be discussing this at Sedona, check me out on twitter later this week from the meeting.