Under mounting cost pressures, corporations and law firms are increasingly “in-sourcing” certain aspects of e-discovery using do-it-yourself (DIY) and service provider choices now available in the marketplace. How does an enterprise determine if it can better manage costs, increase control over discovery, and handle in-sourced technology and talent with these options? Which aspects of e-discovery are best left to outside counsel? What is the right mix of in-sourcing and use of outside counsel?

Contributor

• • Jonathan D. Rudolph, eDiscovery Manager and Staff Attorney, C.R. Bard

Transcript

Sanjog Aul [00:00:00]:
Welcome listeners. This is Sanjog Aul, your host and the topic for today’s conversation is DIY, which is do-it-yourself eDiscovery for you and I have with me Jonathan Rudolph, and Jonathan is the eDiscovery Manager and Staff Attorney at C.R. Bard. Hello, Jonathan. How are you? Thank you for joining us.

Jonathan D. Rudolph [00:00:18]:
Glad to be here. Thanks for having me.

Sanjog Aul [00:00:21]:
How is the work going? Is it very busy? Are you having a chance to play 2 rounds of golf every week?

Jonathan D. Rudolph [00:00:28]:
Not hardly, it’s been really challenging trying to take a company that didn’t really have anything formal in place and trying to give it some semblance of order and strike that balance between what do we keep, what do we send out, what do we keep out there, and then how to integrate all of it.

Sanjog Aul [00:00:46]:
So with that said, it’s a great segue for the first question. Now, for most organizations, eDiscovery is truly non core, but it still is an important function which is critical to the business. So what would make compelling business case to justify bringing eDiscovery activity in-house?

Jonathan D. Rudolph [00:01:06]:
Actually, eDiscovery is a core requirement for companies that are heavily regulated, like with the healthcare industry and so it’s something that you need to really look at your bottom line in terms of what you’re spending every year, because it’s a required component. You have to factor this into your budget. So if you’re spending high 6 or 7 figures on your eDiscovery costs every year, it’s really time to start taking a look at what you can do to bring those costs down. If there’s a lot of litigation, you absolutely have to consider bringing some of your eDiscovery in-house.

Sanjog Aul [00:01:42]:
Now, just bringing the cost down, is that compelling enough? Is that the only element or the very business case that you’re referring to, or is there something else?

Jonathan D. Rudolph [00:01:54]:
For the, for larger corporations, like with Bard, the primary concern is financial, but there are the other concerns that you have to deal with are whether or not you want or have better access and insight into the data that you have regarding your cases. What is my pre-case assessment of where I can go with this? What do I have to worry about? Some companies are trending more towards, we want to have hands-on access to our data so that we know at all times where we’re at. We don’t want to rely on outside counsel to tell us what they think is important when we know better for our company what is or is not.

Sanjog Aul [00:02:35]:
Now, with that said, how should an organization prepare for DIY discovery, eDiscovery? You mentioned that when you came in, there were not very much processes, and so you must have had the full journey from soup to nuts. So can you share that a little bit and when you are really going to come in? Suppose you came in and there was nothing available. So it was a greenfield, you’re starting from scratch. Now, if there was already something going on, they may have to do something differently with respect to insourcing. So how would the two differ? So let’s start with the first one. So how does an organization prepare?

Jonathan D. Rudolph [00:03:08]:
The first thing that you need to do is you have to make sure that your different departments are on the same page and that they are all involved in the process. You can’t have IT going out without the law department or the law department going out without the IT department to pick solutions. The second that you have one going out on its own, you’re not going to wind up taking into account the needs of the other department. There’s going to be resentment, there’s going to be infighting. It’s going to be very difficult to try to implement something. So the most important thing is make sure everybody is on the same page. To that end, you really need somebody who speaks both languages. The advantage that I’ve had is that I’m a lawyer by degree.

Jonathan D. Rudolph [00:03:48]:
I’ve spent a lot of time as a civil litigator. I’ve also spent a lot of time in the tech industry, so I understand what both needs are having somebody who can do that really helps to bridge the gap. So that’s the first thing that I think that you have to have when you’re starting to put a process together. When you’re dealing with something that’s starting from scratch, it’s a little easier because there’s no preconceived notions of things. It’s much easier for the person who’s acting as that liaison to tell both sides what they need to do rather than to get one side to conform to what the other side either already has or says it needs. IT can be notoriously difficult in trying to get their cooperation because they view any kind of attempt to tell them what to do as an incursion on their territory and that does create its own set of problems.

Jonathan D. Rudolph [00:04:40]:
The second thing that you need to do is you have to evaluate what kind of resources do you need from a human point of view? Does it make sense to bring anything in-house because is it going to cost you more in salary than it is to outsource? So those two things together, I think, are the most important things that you need to have.

Sanjog Aul [00:04:57]:
And would you say that things would be any different when you already see some sort of an eDiscovery effort going on and they may have outsourced quite a few of it, or for that matter, the whole eDiscovery is being outsourced? How would someone differently prepare their organization to bring something in-house?

Jonathan D. Rudolph [00:05:16]:
I think it may be a little easier once you have something that’s already in place and that you’re trying to fine-tune it because you have a better sense of the costs that are involved and the primary goal is going to be to bring the costs down. So you have some kind of a benchmark to work down from. Whereas if you’re starting from scratch, nobody knows what the cost is really going to be and you have to worry about setting a bar too low and then going over that and then people say, well, you told us you were going to bring all these costs down or keep them down, and we’re going over by $100,000, $300,000, whatever the number might be. So if there’s something that’s already in place, you can say, okay, we know how much time and how many man-hours are going into the review of our data because we see the billing from the outside contractor, we know how many hours they’re spending. Is it feasible to hire enough people to do that level of review at the same or lower cost? So I think it’s rather than starting from scratch, it’s easier to start when you have something that’s already in place

Jonathan D. Rudolph [00:06:20]:
and the only thing that becomes a sticking point is trying to get both sides to work together because they’ve already been used to working independently.

Sanjog Aul [00:06:30]:
Now, we speak about people, process, and technology as the three elements, the three legs of a stool on which success with respect to eDiscovery would sit on. Now, with that said, do you think there are any standard benchmarks, blueprints, or holy grails that you think can be put in place upfront which will allow you to go through a predictable path versus finding your way as you move along?

Jonathan D. Rudolph [00:06:55]:
The holy grail is going to be where you don’t have to have a person putting their eyes on anything until you get to a privilege review. There are solutions that are out there now. A lot of people are calling it predictive coding. I don’t think that it’s quite at the stage where you can abandon any kind of, any kind of real human intervention but as far as standards go, everybody does their own thing. There’s nothing where there is a handbook that says, okay, this is how you want to go about setting things up. Some people prefer keywords. Some people want contextual searches.

Jonathan D. Rudolph [00:07:29]:
Some people want somebody doing this manually from top to bottom. There is no real consensus of what the proper way to do this is, and that’s evidenced by all the different solutions that are out there. They’re not all the same. If they were all the same, then you would know that, okay, everybody agrees on what needs to be done. The landscape is changing from the court opinions that are coming down that is driving some of the technology. People are scrambling to catch up. So you have to look to the organization itself and see what makes most sense for the individual organization as it relates to are you regulated, what is your budget, how many people do you have that can work on this? It’s really more of a one-off basis now than it is standardized.

Sanjog Aul [00:08:18]:
Let’s take a quick break, listeners. We’ll be right back and let’s look at the fact where everything, should it be brought in-house or you should leave some elements out? The reason we say this is because if you bring too much in, maybe you do not have the ability to deliver. If you leave too much out, then why in the first place did you even start with DIY? Let’s explore this when we come back. Please stay here.

Sanjog Aul [00:09:27]:
Welcome back, Jonathan. As I asked earlier, eDiscovery has many facets. So should an organization bring everything in-house and if not, which elements would it be best to outsource?

Jonathan D. Rudolph [00:09:40]:
My emphatic answer the to first part of that question is no, do not want to bring everything in-house and the reason for that is really costs of scale. Our services right now, we’re able to outsource to a company that has a staff, an entire staff of attorneys, that the rate at which they’re being charged we can have 20 attorneys looking at documents that if we had to pay salaries with all the attendant expenses, maybe we could hire 3 people to do the same thing and you’re not going to get, I think, as good a level of review because the people who are doing it that you have outsourced, this is what they do. They know what to look for. They’ve been properly trained. Assuming you vetted the company properly but these companies are all, for the most part, using actual attorneys as opposed to bringing in people who might have experience within a particular industry.

Jonathan D. Rudolph [00:10:41]:
So you absolutely should not be insourcing the substantive review of documents. The things that you should be outsourcing, rather, are the types of things where you can do initial culling. You don’t want to outsource de-NISTing where you’re having things that everybody recognizes do not belong in a produced set. You can do that yourself with in-house processing. You want to be able to do initial culling with basic keywords and things of that nature. You don’t need a lot of people looking at that. You know what you can get rid of, what is relevant to the case. That’s something that you want to bring in-house

Jonathan D. Rudolph [00:11:22]:
and the costs that are associated with that, you’re looking initially at a set of, it could be 1 million records, 2 million records, and the cost to go through that large set, if you can cut that way down, you’re going to cut costs and the thing that I’ve been finding from other people who are in similar positions that I’m in, it’s the initial costs that they’re trying to bring down quickly because they find that if they can cull a particular set down, they don’t necessarily have to send out the entire set for review. They can create subsets that they can also review in-house, because they will get the other side to focus on a particular set of keywords and it will make the actual review process much less burdensome on whoever is going to be doing it within the organization.

Sanjog Aul [00:12:13]:
Now, with that said, when we also spoke about the elements, specific elements that you would want to bring in, so is it like a selective insourcing is what you’re recommend and if yes, then what pieces would you leave out?

Jonathan D. Rudolph [00:12:25]:
The only things that I would consider absolutely unconditionally outsourced would be the actual detailed review. Once you get past either a denisting or an initial culling section where people are actually looking at the content to determine whether there is some type of relevance or whatever the discovery demand is. You have a substantial set of eyes that are going to be looking at that. You’re not going to get people who are burning out the way that you would as if you’re trying to do this on an in-house basis. They are less likely to make mistakes than if you try to bring this in and have people within the company do it. Plus, you have accountability. That should not be discounted. If somebody does something and you wind up getting sanctioned for for either missing things, not producing things, mislabeling things.

Jonathan D. Rudolph [00:13:18]:
It’s nice to be able to know that somebody outside your organization is accountable for that. Once you bring that in-house, the responsibility falls on you and you really don’t have anywhere to look to try to undo the problem or to somehow try to recoup some of the costs that they’re associated.

Sanjog Aul [00:13:39]:
Now, when it comes to technological innovations in eDiscovery solutions or processes, Which ones would you say show more promise in terms of making DIY, which is do-it-yourself eDiscovery, a practical undertaking for the organizations?

Jonathan D. Rudolph [00:13:56]:
Anybody who is using solely solutions that are solely based on keywords, I think you’re way behind the curve. It’s outdated, it’s inefficient. I don’t think that you’re going to wind up complying with the expectations that the courts have. In terms of what you’re supposed to produce in response, at least in the federal courts, to Rule 26. So you need to have solutions that are going to allow you to do things that will apply contextual analysis. So some of what that might entail is I don’t need to know every single email that’s gone to or from the CEO if he’s involved in something. It may be that I only want to look at the emails that go between him and somebody in research and development or between him and the CFO and you want to be able to restrict things not just on a simple Boolean and or a simple Boolean OR.

Jonathan D. Rudolph [00:14:51]:
You want to be able to filter by date. You want to be able to filter by whether something was attached. Was it attached and was it encrypted, but it shouldn’t have been? Those are the types of things that when you bring a solution in-house,, it will enable you to have a much better review and a much better handle on what your specific data is. Don’t rely just on a keyword. Relying on keywords will do nothing but frustrate the people who are involved, take a long time to get through, and in the long run, I think increase your costs.

Sanjog Aul [00:15:26]:
Do you think the technological innovations or the very technology solutions that are being offered today, are they still missing the mark in terms of making organizations comfortable in bringing things in-house and still be able to produce the results?

Jonathan D. Rudolph [00:15:38]:
I think they’re getting much, much better based on what I saw at LegalTech this year. A lot of the companies are beginning to understand that you can’t do keywords. They have cluster analysis. They allow you to take a look at terms and phrases and the frequency with which they appear with respect to other terms and add in factors like who is it going to, when did it get sent, What is the location? Was it going internally? Was it going externally and also things involving predictive coding are getting much better. That’s where you’re taking documents and you’re feeding it into the program to say, this is the type of stuff that I’m looking for and you go through successive iterations until everybody agrees, okay, it’s picking out the documents, types of documents we want, and it’s excluding the things that we don’t want to see. That aspect of the technology, I think within the next 12 to 18 months is going to start being spot on as opposed to having the significant number of false positives that they currently return.

Sanjog Aul [00:16:43]:
Finally, what is your message to the technology leaders who are supporting the eDiscovery process and for that matter, going to help support the do-it-yourself eDiscovery process?

Jonathan D. Rudolph [00:16:55]:
I think what people need to start doing is they need to be proactive rather than reactive. I think that’s the key for having a successful eDiscovery program rather than trying to put out fires or do one-offs every single time something comes in. If you can go into a 26F conference and have an entire package that says, look, these are the terms that we use in these types of cases, this is how many documents it’s going to return. We’ve already done a privilege review. The only thing that we have to do between now and when the last time we did this is run an update off of the new information. We’ve already done the old information. The advantage that gives you is there was a case back in, I think it was January or February of this year where the plaintiffs had agreed to something like that for the defendants and the defendants produced what they said they were going to produce and later on, the plaintiffs came back and said, you know what? We’ve got some additional acronyms we want you to search

Jonathan D. Rudolph [00:17:53]:
and the defendants were able to successfully fight that off saying, you didn’t object. We told you what we were going to do and for the slight incremental value of something that you might possibly find, the cost isn’t warranted and the court agreed. So I think that if you go in on a proactive basis, you don’t have to keep reinventing the wheel. You bring the wheel to them and you tell, look, if you want it modified, you tell us how and why. I think the move should be away from defensibility to justifiability. I’m telling you what I’m doing and why.

Jonathan D. Rudolph [00:18:28]:
You tell me why it shouldn’t be done that way and I think that’s where the trend ought to be for people to be able to bring their costs down and be more successful in the long run.

Sanjog Aul [00:18:38]:
Once again, thank you so much, Jonathan, for sharing your thoughts and insights about the fact that the DIY eDiscovery is something that most organizations may want to attempt, but there is a process, there’s a maturity that needs to be brought in-house before this could be really brought to success and we really thank you so much again.

Jonathan D. Rudolph [00:18:59]:
It’s my pleasure. Thanks for having me.

Sanjog Aul [00:19:01]:
And listeners, I invite you to find more conversations about eDiscovery on our website at www.ciotalkradio.com/eDiscovery.

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