As a former securities litigator, Gabriela Baron recalls the days of document production when she tagged paper documents with different color tape flags, labeled the boxes lining the hallways with sharpie marker, and met trucks in the building’s loading bay, to make sure all those documents and all those boxes got delivered to opposing counsel.
That was in the late 1990s and early 2000s. Then, in 2004, she became a general counsel of the electronic discovery provider Amici LLC, which was acquired by Xerox Litigation Services in 2006. These days, she finds herself in meetings with associates who can’t even imagine that’s how discovery got done on massive cases. "They’re like, ‘That’s nuts, you were in the loading bay with the boxes?’" says Baron, who is now vice president for business development at XLS.
Indeed, a lot’s changed since what Baron calls the "dark ages" of e-discovery — and not just the shift from paper to electronic platforms. "Back then, corporations were the ones most in the dark" about how e-discovery worked, she says. Now, it’s corporate legal departments — not law firms — that evaluate and contract providers. Baron estimates she spends 90 percent of her time interfacing with corporations, and only about 10 percent with law firms.
Recently, CorpCounsel.com sat down with Baron to discuss big-picture trends, including what clients are putting on their wish lists. Whether you’re an e-discovery pro or a novice who needs to learn fast, here are some key takeaways:
1. Why analytics matter.
Because, in short, "The volumes of data keep going up," says Baron. But it’s not just that the volume is increasing, it’s that the forms of media involved in discovery are getting broader, including instant messages, audio messages, text messages and recordings of conference calls. Attorneys "still need to find the proverbial needle in a haystack, and it’s getting harder and harder to find it," says Baron. "Or, it takes more time to find it."
2. Why you need to know what’s on the market.
This may sound obvious, Baron admits, but familiarity with the latest e-discovery tools has an impact on your legal spend. If you don’t know what "near-duplicate detection" is, or that email analytics tools can be used to assess communication trends between people, now would be a good time to brush up. "This market is changing very quickly, and the availability of these tools has an enormous cost and resource impact for these companies," she says.
3. Why machines won’t hurt you.
Baron doesn’t hesitate to name the biggest trend of the past year: Technology Assisted Review (TAR). This is what Baron calls "document prioritization": Based on a sample of, say, 10,000 documents, you’re teaching a computer program which documents to flag in a pool of 1 million. And while some may portray it as machines taking over the world, to Baron, "My interpretation of it is machines assisted by humans, machines instructed by humans."
In other words, lawyers aren’t getting replaced by computers. "There will always be a role for old-fashioned legal review," says Baron. "You’re still going to need that human intuition about, ‘What’s the value of this document?’" But if you’re not adaptive and open to TAR, you won’t be able to manage the volume of data coming at you. "This is about finding a better way to do it," she says.
4. What to ask your e-discovery provider about security.
When selecting a provider, ask about the platform’s ability to handle multiple users. "Is there a maximum? What’s the capacity of the system?" Baron says. "How many different constituent groups can you have?" Then you want to find out how access to documents and tools can be restricted according to different users. An expert witness, for example, might only need access to 25 pages worth of documents — not the entire pool.
In this era of open Internet access, it’s also important to ask about from which locations users will be allowed to access data. "You don’t want them sitting in a Starbucks or at a train station reviewing confidential data," Baron says. "You want to be able to say, ‘These are the permissible IP addresses you can log on to the system from.’"
5. What’s been the biggest challenge of the past two years?
Expanded metadata fields. Take a single email, for instance. The standard metadata fields — the ones we’re most familiar with — are "To," "From," "CC," "BCC," "Date," and the like. But an expanded metadata field is one that is particular to a specific client — an extra little something. A company may give its employees the ability to self-encrypt emails — that function, in turn, generates an extra metadata field.
But here’s the rub: if your e-discovery software doesn’t know to search for that field, an encrypted email will essentially show up blank in an analysis. The solution is to be able to search for that field and ask the client for the password to unlock the email. Voila! Now you can read it.
6. What technology clients are clamoring for.
"Video is really hot," Baron says. For example, think of all the employee training videos that companies make available via the web. In a case involving allegations of wrongful insurance sales practices, you might want to be able to hone in on sales videos about a particular type of policy. Another good example is deposition videos, and you want to catch all witnesses’ references to "Mary Smith," whether she’s referred to as "Mary," "Miss Smith," or a nickname.
In general, there’s one thing clients always want, no matter the tool: speed. After all, Baron notes, "Time is money." •