Considering the billions of dollars spent on e-discovery every year, wouldn’t you think every trial lawyer would have some sort of e-discovery platform? Granted, the largest firms have tools; in fact, e-discovery software provider Relativity (lately valued at $3.6 billion) claims 198 of the 200 largest U.S. law firms as its customers. But, for the smaller firms and solo practitioners who account for 80% or more of lawyers in private practice, access to e-discovery tools falls off. Off a cliff, that is.
When law firms or solos seek my help obtaining native production, my first question is often, “what platform are you using?” Their answer is usually “PC” or simply a blank stare. When I add, “your e-discovery platform–the software tool you’ll use to review and search electronically stored information,” the dead air makes clear they haven’t a clue. I might as well ask a dog where it will drive if it catches the car.
Let’s be clear: no lawyer should expect to complete an ESI review of native forms using native applications.
Don’t do it.
I don’t care how many regale me with tales of their triumphs using Outlook or Microsoft Word as ‘review tools.’ That’s not how it’s done. It’s reckless. The integrity of electronic evidence will be compromised by that workflow. You will change hash values. You will alter metadata. Your searches will be spotty. Worst case scenario: your copy of Outlook could start spewing read receipts and calendar reminders. I dare you to dig your way out of that with a smile. Apart from the risks, review will be slow. You won’t be able to tag or categorize data. When you print messages, they’ll bear your name instead of the custodian’s name. Doh!
None of this is an argument against native production.
It’s an argument against incompetence.
I am as dedicated a proponent of native production as you’ll find; but to reap the benefits and huge cost savings of native production, you must use purpose-built review tools. Notwithstanding your best efforts to air gap computers and use working copies, something will fail. Just don’t do it.
You’ll also want to use an e-discovery review tool because nothing else will serve to graft the contents of load files onto native evidence. For the uninitiated, load files are ancillary, delimited text files supplied with a production and used to carry information about the items produced and the layout of the production.
I know some claim that native productions do away with the need for load files, and I concede there are ways to structure native productions to convey some of the data we now exchange via load files. But why bother? After years in the trenches, I’ve given up cursing the use of load files in native, hybrid and TIFF+ productions. Load files are clunky, but they’re a proven way to transmit filenames and paths, supply Bates numbers, track duplicates, share hash values, flag family relationships, identify custodians and convey system metadata (that’s the kind not stored in files but residing in the host system’s file table). Until there’s a better mousetrap, we’re stuck with load files.
The takeaway is get a tool. If you’re new to e-discovery, you need to decide what e-discovery tool you will use to review ESI and integrate load files. Certainly, no producing party can expect to get by without proper tools to process, cull, index, deduplicate, search, review, tag and export electronic evidence—and to generate load files. But requesting parties, too, are well-served to settle on an e-discovery platform before they serve their first Request for Production. Knowing the review tool you’ll use informs the whole process, particularly when specifying the forms of production and the composition of load files. Knowing the tool also impacts the keywords used in and structure of search queries.
There are a ton of tools out there, and one or two might not skin you alive on price. Kick some tires. Ask for a test drive. Shop around. Do the math. But, figure out what you’re going to do before you catch that car. Oh, and don’t even THINK about using Outlook and Word. I mean it. I’ve got my eye on you, McFly.
Ball in your Court 
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Sean Broderick said:
Well said, Craig.
My question to you and the readers of your blog is what are the low costs tools that can do the essential aspects of a review tool? Sometimes people just need to be able to search, review and tag. I know you did the Edna challenge years back and it may be time for an update. Bonus points for tools that don’t base fees on volume or are desktop-based instead of cloud-based.
Thanks for the new posts!
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craigball said:
Thanks for the comment, Sean. I’ve asked that question so often I’m hoarse. The short answer is there is no sub-$1,000 EDna contender behind the firewall. The late, lamented Prooffinder was the answer, but it’s gone and not coming back.
In its brief, shining moment, Prooffinder proved that a less-adept “little brother” of a powerful, profitable product could co-exist and graft competent e-discovery to small cases. But, we must weigh that revelation against the fact that Prooffinder is gone. It made the bean counters and salespersons uneasy, afraid that some Nuix business was being lost to Prooffinder. Of course it wasn’t, but what’s done is done. I’m grateful it lasted as long as it did and funded extraordinary philanthropy. Thank you, Nuix and David Sitsky!
Let’s define “low cost.” Small and mid-size firm attorneys aren’t used to paying much for software. What’s the most expensive behind-the-firewall program most lawyers have purchased? Adobe Acrobat? So, asking solo practitioners to pay $5,000 for a software app is foreign. Asking them to subscribe for tens of thousands a year is alien and terrifying.
What price point is “low cost” and how will a low price drive the cash flow required to catch the attention of private equity investors?
Starting a unicorn has displaced the goal of crafting tools we use and adore. There are a finite number of customers for any e-discovery tool. Within the legal bubble, lawyers feel big and impactful; but to the software community, we are a niche market that’s challenging to support. Too, lawyers’ hourly rates serve as a disincentive to master a tool so as to be able to use it cost-effectively. Lawyers have been conditioned to farm out e-discovery to vendors, disincentivizing vendors to design tools for lawyers to use in-house. Gigabyte pricing is like hourly billing: the greater the inefficiency, the greater the profit. Finally, throw in the impact of buying software versus buying services. You have to capitalize a purchase; it’s overhead. You can pass through a service; maybe even with a markup to lard the bottom line. No contest.
There are still a few tools out there that may fill the bill. I’d be doing longtime friends a disservice if I didn’t mention Vound’s Intella or GGO’s Digital Warroom, both fine tools at fair prices.
But, the dream of a great tool for the masses is still out of reach and–it pains me to say so–is likely to remain so. Even if a sufficient tool appeared, it would almost certainly fall flat absent an ecosystem of training and support behind it, along with an enthusiastic user group. That doesn’t account for the impact of the industry disparagement and fear mongering it would draw. Nothing prompts enmity quite like a good idea.
Did I mention that certain essential features of the basic e-discovery tool you seek can’t be had for free? In particular, I’m not aware of an open source code base that would supply the high-level viewer-and-highlighter capabilities such a tool would require. A low-cost, behind-the-firewall tool that ingests, identifies, processes, recurses, normalizes, indexes, culls, deduplicates, displays, searches, highlights and produces standard legal exports, all via a user-friendly interface that runs cross-platform is a tall order. Too tall, apparently
And who buys behind-the-firewall applications anymore? Windows, Office, Adobe Acrobat–they’ve all morphed into all-Cloud or hybrid Cloud suites. Yes, I still run each as a standalone application, but that’s become harder to do while staying current on releases. We are being herded to the Cloud whether we want to be there or not. It’s not necessarily a bad thing, though it will prompt some bad things along the way in terms of high-profile breaches and painful service interruptions.
Perhaps some things in life are destined to remain expensive. Have you noticed how few inner city polo leagues you see these days?
Seriously, I see all the hurdles and nonetheless choose to believe we can get there. Candidly, I don’t think it will happen on the watch of those who overpromise and underdeliver or who clothe profit seeking in the sheep’s clothing of public interest efforts. I see it as the work of one lone coder who builds something amazing because she’s too naive to notice all the reasons she was fated to fail.
Are you out there, EDna? EDna?
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