Frankly, I am not sure what eDiscovery managers want for Xmas this year. eDiscovery managers are, after all, a tough crowd to understand. But, getting a present for wife is even tougher than that, and I was able to solve it with only 3 visits to the Nike store. Anyway, my colleagues and I met with about 30 international and national law firms over the last month or so, presenting our new product Equivio>Relevance, and we learned quite a lot about the process, the pain that they are encountering, and about their wish list.
It starts with pain. 2009 was hard and many demons, that previously had been well hidden, surfaced, rearing their ugly head. For quite a while, observers have been talking about the ballooning/spiraling/rocketing (chose your preferred cliché) costs in eDiscovery. The difference this year, and some of the smart bloggers have touched on this, is that this song is now being sung by the choir, and, more importantly, corporations are starting to act on it. And indeed this is a key point. People have come to realize that money should not be used to solve everything in litigation. There are limits. Moreover, many cannot buy everything in litigation. Even an unlimited budget cannot buy quality review, on-time delivery, or peace of mind.
This blog and the next one will touch on these pains. Our postings early next year (I love the sound of that promise…) will discuss the wish list that they created:
Review errors and quality – The latest white papers by the Sedona Conference Institute articulate what many people have known for a long time. Asking a team of people to read millions of documents is an error-prone process. There are simply too many potential failure points: communication between the litigator and the review team, uneven performance by team members, the tedious inherent nature of the task, the time pressure, the inadequate tools, and more. Nobody is surprised by review analyses that show, for example, that inconsistent coding of similar documents often exceeds 50%. Or as I often hear, "obviously, this is not happening in our firm, but I know that it happens all the time in other places." A firm that we work with and that approached this issue in a more systematic manner conducted the following test: a collection of documents was given to two teams of reviewers of (presumably) similar skills with the same instructions. The variance between the results was huge. In other words: not only the results are mediocre, the process is not repeatable.
· Lack of measurability – As we learned from the great quality guru, Edward Deming, measurability and quality are the two sides of the same coin. But this pain is troubling enough to deserve its own item. A famous quote attributed to Deming is "if you can’t measure it you can’t manage it", but not many can claim that they are measuring the quality of the review. Trivial questions that are so common in any quality control project have no answer in the litigation review arena -- for example, how many defective units did I manufacture (i.e. how many relevant documents have I missed)? Has our process improved over the past year? By how much? Is reviewer A better than reviewer B? Is my off-shore review better or worse than my internal process?
· Too slow getting to relevant data - Finding a smoking gun email one week before the trial is good but not great. Finding it on the first week of the review can be priceless. Timing is a key pain for litigation managers, albeit often neglected due to the precedence of other pains. When looking at the overall process from collection to culling to detailed review, it takes many weeks (if not months) until the binder with the key documents hits the desk of the attorney. Shrinking the timeline may, in many cases, have dramatically positive effects on case strategy, costs and quality.
In the next posting, I will cover two additional pains: costs and risks. And in the posting after that, the somewhat troubling question – does eDiscovery do what it’s supposed to do viz. find the relevant documents?
And one final comment, so I will survive to write the next postings as promised – the fact that I had to visit the Nike store three times was due to my chronic incompetence, lack of shopping skills, and total inability to follow simple instructions, and has nothing whatsoever to do with my wife. | 
