“E-discovery software” is short-hand for a complex, emerging market of products that help companies satisfy their e-discovery obligations in large, document-intensive lawsuits. E-discovery software is a billion dollar industry, so it makes sense to learn how to shop the market if your company is confronting serious litigation.
This article will discuss the five basic functions of e-discovery software: (1) processing; (2) storage; (3) review or “tag”; (4) search; and (5) production.
Finally, we will share the story of a Texas law firm, Camara & Sibley, which designed its own e-discovery software for its clients, who liked the product so much that CS Disco is now publicly available.
Litigants involved in e-discovery production first collect data from users in native format (Word, Excel, .pdf, email .pst files, etc.) using search terms defined by legal counsel. Next, the producing party aggregates the data on computer discs or a hard drive and delivers it to the e-discovery software provider.
All native data must be “processed” into searchable image format, either TIFF (Tagged Image File Format) or .pdf. Discovery software providers usually charge the first fee on a per gigabyte basis for creating a uniform, searchable image file format — i.e., “processing.” Some providers offer only TIFF, which is an older, less frequently updated image format, while others offer both .pdf and TIFF. All things considered, .pdf is better unless the lawsuit relates to an S.E.C. investigation, in which case the government mandates the TIFF format.
Storage / Security
The next price-point decision involves storage. Most e-discovery software providers charge a monthly “storage fee.” Like the processing fee, this price point should be investigated, compared, and, if possible, negotiated. In-house counsel should also ask about the security of their company’s data which will likely be stored offsite. For example, some litigants are sensitive about the export of their data, and if the data must be stored internally at the company, this might limit the number of e-discovery providers who can provide the necessary service or increase the storage fee.
Review / “Tag” & Search
Once the data has been processed and stored, it is time for lawyers to “review” and “tag” the images (i.e., code the image files as “relevant,” “privileged,” “hot,” or any number of other custom codes). In-house counsel should pay special attention to the “review” and “tag” functions, together with “search” function after tagging is complete. These functions taken together are the most important differentiation among e-discovery software providers.
Take time to learn about the processing speed, user control mechanisms, and coding controls, as well as the method for searching documents previously “tagged” when it comes time to prepare for depositions, motions, or trial. A few extra seconds to switch from document to document, for example, or to toggle between screens, can make a difference in a case with more than 100,000 image files to be reviewed. Similarly, at the time of deposition or trial, imagine your frustration if you have a witness under oath and your computer is spinning. Some of the programs are newer, too, or designed to be more user friendly. Most applications have online demonstrations. You can also ask one of the many third-party vendors who serve as the client contact and salesman to show you how the “tag” and “search” functions work.
The final step is production. Like storage, there is often uniformity in this function among providers, so in-house counsel may take this opportunity to compare price points and negotiate a better rate.
For a quick review of the current “rankings” of various e-discovery software providers, the internet is rich with reviews and comparisons. A widely referenced source is called “The Magic Quadrant.” Published annually, it sorts the primary providers (e.g., Relativity by kCura, Concordance by LexisNexis, Kroll, and Autonomy by HP) onto a grid.
After this year’s 2012 Magic Quadrant report was published, a Houston law firm, Camara & Sibley, released its own e-discovery software onto the market. As Kiwi Camara and his partner Kent Radford explain, the firm often works on cases with large e-discovery obligations and litigation budgets. When one cost-sensitive client was quoted an e-discovery budget in excess of $500,000, even after negotiation, the firm decided to develop its own program, which became CS Disco.
Relying on an open-source search engine that forms the backbone of Twitter’s search function, called “Lucene,” the partners worked with an engineer to design a unique program they view as “state-of-the-art.” The program, called “Disco,” takes native data in all common formats, processes it for review, and lets lawyers search, tag, and review documents economically.
“Disco is focused on speed and ease of use, delivering a fast performance on large databases with an interface that lawyers are familiar with from software like Gmail, Apple’s Spotlight, and Westlaw,” said partner Kent Radford.
After using the software internally on several cases, the firm launched the program. Like other e-discovery providers, CS Disco is available on line (www.csdisco.com) and supports full-featured processing, review, and production in industry standard formats.
There are many providers of e-discovery software, and all of them cost a lot of money. Ask questions about pricing, and make sure the “tagging” and “searching” functions fit your needs. In large cases this can be a million dollar decision that increases or limits your ability to litigate effectively.