The Festivus Airing of Grievances: eDiscovery ALSP edition

“I’ve got a lot of problems with you people and now, you’re gonna hear about it!”

So said Frank Constanza in an episode of the NBC sitcom, Seinfeld. Over the last couple decades since this famous episode, wherein Frank revives the holiday he invented called “Festivus,” we can’t help but think maybe Frank was onto something.

Sure, the Festivus “airing of grievances” isn’t quite as cheerful as hanging up stockings or drinking eggnog, but sometimes it needs to be done. This is particularly true in the field of eDiscovery and Alternative Legal Service Providers (ALSPs).

Over the last decade, eDiscovery has been through a period of rapid growth. As more and more savvy entrepreneurs see the profit potential of the industry, the more we see clients that have been burned by other service providers who cared more about their bottom line than their clients.

We have a bone to pick with those companies. There’s absolutely no reason why making money has to come at the cost of the clients, and we don’t want attorneys thinking they should just accept it.

Grievance #1: Not billing based on actual time.

Some service providers bill based on how much they anticipate a job should take rather than long a job actually took. You might even think “gee, that’s nice! I don’t have to pay extra when my vendor takes more time than a task should take.”

The flip side of this is that if your service provider estimates a job should take 3 hours but it only takes 30 minutes, they’re pocketing the rest. The client is quite literally paying for hours of labor that never actually happened. Therein lies our grievance. If the party that’s in charge of deciding how long a job “should” take also stands to profit from overestimating, that’s not exactly a system of checks and balances.

Another issue here is the increments of time vendors use. Some won’t break down their billables into anything smaller than an hour, meaning that tasks taking 31 minutes are sometimes billed as a full hour. Do that enough times over a large complex matter, and it adds up to a huge sum of money that once again, is for work that never really happened. For this reason, Contact bills in 15-minute increments to ensure the time our clients pay for lines up with the time the job actually took.

Do the work. Be honest with your clients about how long that work took and bill accordingly. Is that so hard?

Grievance #2: Overcollection

Collecting all the data under the sun is a great way for vendors to pad their check. So much so that they sometimes go ahead and do this even when there’s a miniscule chance that all the extra data will help their client’s case.

In eDiscovery, the amount of data that makes it through each stage of the EDRM affects how much money the client spends on the next step. If your vendor collects a lot of data, then your vendor can charge more for hosting and processing; if the vendor doesn’t narrow down THAT population of data, you continue to spend even more on review. Because collection is one of the earlier steps in the process, there’s huge profit potential for unscrupulous vendors who collect unnecessary data and move it further downstream even when the client will likely never see any ROI.  

For example, does it really make sense to collect a custodian’s iPhone AND their iPad when the devices likely hold similar information that can also be collected remotely from an iCloud backup? Some vendors might know darn well that the majority of what they collect will be redundant, yet they’ll still charge a client to do the collection and bill them for the hours it took to dedupe everything.

Like any other aspect of a legal case, the collection approach is going to vary. Sometimes it does just make sense to collect a lot of data; however, a good vendor with a strong forensics department will weigh the costs and potential rewards of collecting different sources and build a cost-effective strategy. They may even be able to steer you towards data sources you didn’t think of collecting that are more likely to hold relevant information you’re looking for, allowing you to reduce the total amount of data you collect.

Grievance #3: Collecting/elevating bulky files for no real reason

Oftentimes, service providers charge their clients on a per-GB basis. Naturally, some file formats are going to take more GB than others. Photos take more data than text files; audio files take more data than photos; video files take more than audio; there are also many other industry-specific file formats that fall outside the realm of pdfs and jpegs.

As mentioned above, every case is different and sometimes bulky files (i.e. expensive to host and process) just come with the territory. However, bulky files also provide a convenient way for money-grubbing ALSPs to charge clients more without providing more value.

Sometimes those files hold irrelevant information that could be eliminated from the data population. Other times, the same information can be converted to smaller file sizes that would save the client money, but the service provider chooses not to because they care more about a short-term profit than building a long-term relationship with their client.

Grievance #4: Not caring enough about their cases’ outcomes

Attorneys need to create positive outcomes for their clients. Sure, no attorney can feasibly deliver the outcomes that clients want 100% of the time, but they need a high-enough success rate to build and maintain a good reputation and keep their business alive.

This isn’t necessarily true for eDiscovery vendors. For many ALSPs, the outcomes of cases don’t affect the bottom line as much as you might think they would. Assuming a company handles data in a timely manner without any spoliation issues, they can still make a pretty good buck and keep their reputation alive, even with a “losing record” in terms of those actual cases. Too many service providers are content to keep chugging along with this profitable, but lazy model.

Some are content to only return documents that match up with the specified keywords, even if there are others that might help win the case. ALSPs can play defense too. If they turn up documents that undermine their attorney’s current strategy, they can warn the attorney about that vulnerability while there’s still enough time to adapt. The best ALSPs can even help future matters run more smoothly.

 OR they could do none of this and just say “welp, we did our job, here’s your invoice.”

As an ALSP, your client gets paid to win. Ergo, if your services aren’t helping them win, how helpful are you?

What are your legal tech “grievances” this year? Let us know in the comments!

Kyle Rittenhouse Trial Highlights Importance of Technology Expert Witnesses

Earlier this week, a jury heard closing arguments in the trial of Kyle Rittenhouse. Rittenhouse rose to national prominence in August 2020 after allegedly shooting three people at a Wisconsin protest, two of whom died, the third injured. Now, he stands trial for those alleged crimes.

One unexpected curveball: whether or not the prosecution should be allowed to use an iPad to zoom in on footage that allegedly shows Rittenhouse at the scene of the crime. The defense argued that when one uses the pinch-to-zoom feature available on Apple devices, it alters the footage:

“It uses artificial intelligence, or their logarithms, to create what they believe is happening,” said defense attorney Mark Richards. “So this isn’t actually enhanced video, this is Apple’s iPad programming creating what it thinks is there, not what necessarily is there.”

NOTE: Many publications that have published this quote allege that the defense meant “algorithms” rather than “logarithms.”

Prosecution insisted such alterations don’t happen, and that zooming is no different than putting a magnifying glass over a printed photograph. Judge Bruce Schroeder initially said the prosecution would have to bring in an expert to confirm this, otherwise they’d have to use the raw footage taken from a wider angle.

James Whitehead is the Associate Director of Digital Forensics at Contact Discovery and has served as a digital forensics expert witness on forensic issues.

“I think as we see AI evolve, a new breed of validation questions may arise as the computer begins to generate life like images of events and people that do not exist,” says James Whitehead, Contact Discovery’s Associate Director of Digital Forensics, who has testified as an expert witness in other trials. “There’s an entire industry of applications… that leverage or skew the underlying digital photography [so we can] create panda face versions of ourselves.”

While the panda face apps might be an extreme example, Whitehead was also quick to clarify that the fact these apps exist doesn’t automatically mean the raw data is unreliable.

 “These apps function because the underlying digital image is trustworthy as is the underlying technology,” he said. It’s perhaps paradoxical that as technology gets better, it almost becomes harder for people to trust it.

In court, Judge Schroeder admitted to not having a very good understanding of technology. “I know less than anyone in the room here I’m sure about all this stuff,” he said.

It’s easy for people who live and breathe tech to think that pinch-to-zoom is a standard feature that everyone is familiar with, but then… should that matter? How often laypeople use certain technology isn’t necessarily a good standard for whether or not that technology should be admissible in court.

If a judge knows they don’t understand a topic as Schroeder admits he doesn’t understand pinch-to-zoom technology, it does make some sense to err on the side of caution. Once a jury has seen evidence, the judge can’t change that if they later learn that evidence was unreliable. When judges know they’re out of their depth, deferring to experts before they make a call is quite reasonable.

“The fact finders are a diverse group of individuals,” says Whitehead.  “We must remember that education of the fact finder isn’t a factor to be lightly regarded. The rules of evidence have evolved over the years as has the evidence. It’s still good practice to explain what you are leveraging and why it matters. If evidence or story is technical in nature, [it’s best to] have an expert on standby who can assist with the explanations.”

At the end of the day, criminal trials aren’t about what the Twitterverse thinks; they’re about what judges and juries think. Whether or not the prosecution should need an expert to confirm the validity of pinch-to-zoom footage is beside the point if a judge says they do.

Later in the trial, Judge Schroeder had a change of heart and said the jury could consider the enlarged footage, however he wasn’t shy about expressing his skepticism for it.

 “You’re basing this extremely important segment of the evidence on something that I’m really queasy about,” Schroeder said. “I’m not going to give an instruction on it, but I’ve made my record on the high risk that I think it presents for the case.”

So what can other legal teams learn from this ruling?

For one, that just because technology seems commonplace, that doesn’t mean a judge will understand the ins and outs of the technology well enough to confidently make a ruling on its admissibility. Whitehead says people might be surprised at how often judges expect expert testimony for technology end-users might consider commonplace.

“Technology is wasted on the young, like naps and kindergarten,” he said. “Judges are often removed from the [supposedly] commonplace setting for which our matter may hinge.”

Be ready to defend any part of your case involving technology, and yes, that may even mean expert testimony when you don’t agree expert testimony is needed. In this case, Schroeder initially put the burden of proof on the party that presents that evidence, not the party trying to disqualify evidence. Could that open the door for other teams to cast doubt on opposition’s evidence even if they don’t have their own experts? After this tech debate in such a highly publicized trial, some attorneys that would’ve otherwise thought they can’t get evidence thrown out might try anyway. Even if evidence is ultimately admitted, a drawn out debate about its reliability could still shape jurors’ perceptions of that evidence. Having expert testimony at the ready can potentially prevent such a debate.

Another thing most legal teams know, but this case reinforces: don’t be overly reliant on one “smoking gun” if you can help it. Perhaps the prosecution will be able to get a conviction based on evidence besides their pinch-to-zoom footage. Only time will tell. The one constant of the legal world is that as much as we try to predict it, it remains unpredictable. You never know which evidence could be disqualified, so finding multiple “smoking guns” makes for a stronger case.

How Custom Software Helps Everyone (Even People Who Don’t Need Custom Software!)

“Custom” can be a scary word in legal tech.

It sounds expensive.

It sounds hard to implement.

It sounds like there will be longer turnaround times compared to ready-made solutions.

It sounds untested, and unproven. (We all know how much lawyers love unnecessary risk!)

It sounds that way because well… a lot of times it’s true.

For these reasons, it’s understandable that a lot of people shopping for legal technology just don’t want anything “custom.” There’s peace of mind in knowing that other people are already using the same solution and getting great results.

At Contact, we tout our custom software development capabilities a lot, but we still understand and sympathize with this line of thinking. Unfortunately, it often leads to another line of thinking that can be dangerous:

“I don’t need custom software development, so it doesn’t matter if my vendor can do it or not.”

Sure, there are definitely service providers who can do great work without building custom software. Buyers also need to be wary of vendors of the other end of the spectrum. That is, the service provider who’s constantly trying to sell custom solutions to people who don’t need them.

However, we truly believe in our heart of hearts that our ability to build custom software benefits all our clients… even the ones who have no interest in having us build custom software. Here’s why.

Open Communication Between Specialties = More Knowledgeable Team

The eDiscovery industry is dependent on many different professionals, but a lot of them fall into one of two broad categories. In one group, we have developers who build new technology that moves the industry forward. In the other, we have project managers and ops professionals who work on real cases with real teams every day. They have enough working knowledge to get the job done, but not necessarily the skillset it takes to reinvent how work gets done.

The best service providers create a harmonious relationship between these two groups. Some have software development staff internally. Others have trusted vendors that can that do development work as needed and good communication between those vendors and their internal project managers. This symbiotic relationship means technological advances are informed by practical knowledge of real-world challenges. It also means end users aren’t limited to commonplace solutions that might not be the right fit.

On the flip side, if there are too many degrees of separation between developers and the end-users, it’s easy for things to get lost in translation. Sometimes well-meaning developers reinvent a wheel that was working just fine while neglecting bigger pain points.

Even if your vendor isn’t doing any kind of custom build for you, project managers that are dipping a toe into development world semi-regularly often prove more helpful than those who aren’t. They understand what’s “on the menu” when it comes to technology, and tend to be good at communicating it to less tech-savvy personnel. They usually can troubleshoot issues faster, and if they can’t then the people who can are just a short phone call away.

A Company That’s Customizing Regularly Is Learning Things That Others Aren’t.

Believe it or not, you are not your vendor’s only client (mind blowing, isn’t it?) However, this can be a feature, not a bug. Every time your vendor solves a problem for someone else, they’re in a better position to solve a similar problem for you. That can be an enticing prospect for any client that’s scared to be the guinea pig for a new piece of technology. 

The kinds of problems that your vendor solves for their other clients inevitably affect the way they’ll approach yours. If most of your vendor’s other matters can be serviced with old standby methods and technology, they’ll probably be more likely to apply those same tried-and-true solutions to your matters.

That’s not necessarily bad. As the old adage goes, if it ain’t broke, don’t fix it. However, there’s a difference between choosing more traditional techniques because you’ve made an informed decision that they’re your best option, and choosing them because your vendor doesn’t have a very big comfort zone. Too often, the vendors that are clinging to obsolete methods aren’t choosing that path because they’re simply bad service providers; instead, it’s because their client base isn’t challenging that vendor to take on newer obstacles that require updated solutions.

If you want to work with someone who has lots of experience tackling large, intricate, uniquely challenging matters, ask yourself where clients are likely to take those kinds of matters. Odds are they’re going somewhere that has software development on the menu. Even if your case doesn’t fit that bill, teams that are working on those kinds of projects are learning things they can apply to more “by-the-book” matters.  

We like to think we have the best staff in the business, but as knowledgeable as they are they still learn new things with every new project. The more outside-the-box that matter is, the more they learn. The more they learn, the better equipped they are to deal with the next client who brings us a similar challenge.

Custom Doesn’t Always Mean What You Think It Means

Customization isn’t a binary so much as a spectrum. The question at hand should never be “do I need custom software?” so much as “to what extent does my software need to be customized?”

On one extreme you have fully pre-made. This is more like a pre-made sandwich you get from the grab-n-go section of a convenience store. Taking ingredients away or adding other ones isn’t really an option. On the plus side, your sandwich is already made, no wait times.

On the next wrung of the customization ladder, let’s imagine a sandwich shop that has a set menu, but still makes their sandwiches to order. It’s relatively easy to say “hey can you hold the tomato?” or “can you swap that swiss cheese for cheddar?” However, you’re still mostly bound to the menu as written. There’s only so many modifications you can make to your chosen menu item before it just isn’t that practical anymore.

On the next step in line, you have the assembly-line sandwich place. It’s relatively painless to go down the line and specify what ingredients you want and which ones you don’t. That’s a much better experience than saying you want X menu item and then listing 10 different modifications you want to make. However, you’re still limited to the ingredients that shop has on hand.

Finally, you have the most customizable option of all: making your own sandwich at home. You get to use your favorite ingredients that you purchased from whatever store you like. However, it’s more time and effort on your part. Sometimes you’re in a rush and you just want the convenience of someone else making a sandwich for you.

eDiscovery works in a similar way. Sometimes “custom” means building something new from the ground up. It can also mean making relatively minor tweaks to an existing product. Think of a program like Excel. It can work magic if configured the right way for the purpose at hand, but that configuration might not be immediately obvious to a novice user. Such is the case with the most advanced eDiscovery platforms. 

 In our experience, clients are often pleasantly surprised by how far they can get with a little bit of customization to solutions they already have. Sometimes clients that think they need to invest in new tech learn that they don’t have to. On the other side of things, clients that were initially intimidated by the idea of a “custom solution” learn that it doesn’t have to be as cumbersome of a process as they feared.

When you hire a company that is used to customizing on a regular basis, they’ll understand these nuances. They might be able to present slight adaptations to current workflows that are much more workable than the big scary “Custom Solution” you were trying to avoid.

Even if your matter doesn’t require custom software development (and many don’t), it’s a good option to have in your back pocket in case things ever change. Perhaps even more importantly, the teams that are capable of custom software development can take a more holistic approach to any challenge. That’s good for everyone.

What Music Production Can Teach Us About Legal Technology

This past weekend, I binged the AppleTV+ series Watch the Sound with Mark Ronson. There are six episodes, and each one focuses on a different aspect of music production.

One of the recurring themes of each episode is how new technology changed music. The LinnDrum shaped pop; the 808 shaped hip hop; the distortion pedal shaped heavy medal; autotune shaped dance music.

Nearly every episode poses the question… does technology make music more human or less human? One man’s exciting innovation is another man’s existential threat. Time and time again, the answer was the same: it’s not up to technology to make or break music. It’s how musicians choose to use it. That is why I thought this series about music production would make excellent fodder for a discussion about legal technology.

A lot of legal tech is designed to achieve the same goals as different kinds of music tech. Some of it is meant to automate repetitive tasks, like a drum machine. Some of it is meant to reduce human error, like autotune; digital forensics tools expand the types of data we can collect for an investigation, the same way a synthesizer expanded the kinds of sounds that musicians have at their disposal. eDiscovery platforms can help you sift through existing data to build a case, similar to how sampling software lets producers turn bits and pieces of old records into new tracks. Some tech is more like Apple’s Garage Band program: its primary purpose is to make the job just plain easier, so that less specialized professionals can do work that once required highly technical, specially trained experts. 

All of this technology opens up a whole new world for legal teams. It’s not only a world that allows them to do business as usual in less time for less money; It’s a world where we get to redefine “business as usual” altogether, similar to how so many machines have revolutionized music.

One of the most interesting things about Watch the Sound is how the show features interviews with engineers who designed groundbreaking music technology. Usually, these engineers had no real agenda to change how music sounds. Instead, they just wanted to make it quicker and easier for people to make music that fit traditional norms of “good.” The sounds that are now considered calling cards for different types of tech– from Prince’s use of drum machines to T-Pain’s use of autotune– didn’t exist yet. It took those other visionaries getting ahold of the tech for real innovation to happen.

Roger Linn recorded acoustic drums and programmed them into his drum machines.

For example, Roger Linn designed the Linn-LM1, a favorite drum machine of Prince, and later the LinnDrum, which was used across the ‘80s pop landscape in songs such as “Maniac” by Michael Sembello and “Take On Me” by a-ha. Linn was the first person to record acoustic drums and program them into a drum machine. He made his machines this way because he felt other options on the market were too synthetic-sounding.

Yet… one of the most iconic beats ever made with one of Linn’s machines is on “When Doves Cry.” Prince achieved this sound by purposefully programming the drums to be out of tune. The beat is so iconic largely because it doesn’t sound like a human drummer.

Prince’s music is remembered today in part because he didn’t just use the drum machine as a cheap shortcut to bypass human drumming. He saw drum machines as an exciting new frontier of sounds that were previously unknown to human ears.

The best eDiscovery project managers approach their jobs in a similar fashion. They’re able to not only get through discovery more efficiently, but repurpose technology for other types of work. A lot of tech that was initially designed to help clients through complex litigation is now being used for other big data conundrums that require reviewing lots of data and sorting it into different buckets. Cyber breach review and data remediation come to mind, but I’m sure that list of alternative purposes will continue to grow as the world continues to create more and more data.

Particularly skilled eDiscovery professionals push the limits of existing technology. Prince didn’t wait for Roger Linn to pre-program the drum setting he wanted; he took a machine and did something new and unexpected with it. We’re seeing this in legal tech as well, particularly with highly customizable programs such as Relativity. At Contact, our team developed Vu™ to help less-experienced Relativity users access the wealth of analytics data that already lives within the platform.

Of course with innovation often comes push back. Throughout the history of music, whenever new technology expanded the library of sounds that musicians could put on a record, there was inevitably someone complaining about how the new technology was “cheating” or “not real music.” Potential for progress often comes hand in hand with potential for regression.

Indeed, Watch the Sound also rightly points out how some aspects of music can only be done by humans. An episode about autotune mentions how sometimes the most emotive vocals aren’t 100% on pitch 100% of the time, and autotune can do more harm than good.

At one point, Mark Ronson plays a raw Lady Gaga vocal and says “there is no plugin in the world that can make you do this.”

At every turn, music producers have to make choices about when and how to use technology, and when to let human musicians do what only humans can. Does distorting a vocal drain it of all the emotion and humanity… or does it capture the angst and confusion that a song is trying to capture?

This is how legal teams need to work. Not only are their certain types of thinking that only humans can do… I’d wager there’s certain types of thinking only attorneys can do. No matter how advanced technology gets, there also needs to be someone at the helm making smart decisions about what work has to be done by an attorney, and what’s best left to technology.

That person needs to not only know that technology can help, but how it can help. It’s similar to how a skilled music producer doesn’t just have technology; they know what kinds of microphones and studio spaces give them the recordings they want; they know what other kinds of sounds can come from different instruments or other machines; they know how to mix it all together into a final song that works. They know when less is more, and when more is more. The best ones can harness technology in unexpected ways and make something like “When Doves Cry.”

The future of legal tech belongs to people who look at it the way Prince looked at drum machines: not to be a cheap imitation of humans, but to redefine our notions of what’s possible.

Managed Review vs. Unmanaged Review: Which One’s Right For You?

Complex litigation cannot happen without document review. Document review cannot happen without reviewers. This raises a lot of questions that most lawyers never learned about in law school: Which reviewers do you hire? What parts of review can be trusted to technology, and what parts absolutely have to be done by humans? What work requires actual attorneys, and what work is better left to other litigation support professionals? 

There’s a myriad of considerations that go into these decisions depending on the case at hand and the capabilities of that particular legal team. One of those decisions is “who should make all the other decisions?” When legal teams are either spread too thin or simply want someone with a different realm of expertise, managed review services can be great for attorneys and their clients.

What eDiscovery Review Teams Do vs. What Lead Attorneys Do

Lawyers are good at a lot of things. They tend to be good researchers, and good at drawing connections between seemingly unconnected pieces of evidence. Unfortunately, those relevant pieces of evidence don’t just show up at a lawyer’s doorstep all wrapped up with a bow. Usually, they’re hidden somewhere in a massive pile of data.

If your legal case is a jigsaw puzzle, most lawyers could probably put that puzzle together just fine if there are relatively few pieces and they all come in the same box. Now, imagine the pieces of the puzzle that you want to make are in a box with thousands of other pieces that make up less relevant pictures. What happens when you’re not even 100% sure you have all the right pieces to make the picture you want to make? Can you find other pieces along the way that might make other helpful pictures?

It would be impossible for any one person to make their chosen puzzle in such a scenario. Instead, you need a coordinated team of people going through documents and coding them as relevant. These reviewers aren’t usually the ones making calls about big picture legal strategy, but they know what kinds of puzzle pieces to look for so that those other attorneys can actually put a picture together.

Finding the right pieces in that unruly pile is a separate skillset from actually putting the pieces together once you have them. Plenty of lawyers have great experience in both these areas, but it’s not a given, and there’s no shame in asking for outside help when you need it.

How Remote Review Services Can Help

Remote review and managed review services allow for legal teams to scale as needed in order to take on larger, review-heavy matters. Smaller teams who don’t have enough man power internally can staff up for one matter, and then scale back down afterwards.

Document review services aren’t just for when you need more reviewers, but sometimes simply different reviewers. Maybe you have documents in a foreign language that no one on your staff speaks; maybe you have a matter outside your normal realm of expertise, and need reviewers with different legal specialties.

Either way, remote review lets you take better care of your clients without having internal hires for every possible scenario that your clients might throw at you (which isn’t realistic for most law firms.)

Remote review is a great option for most law firms, but it comes with challenges of its own. Someone has to decide which reviewers are best suited for your matter. Someone has to decide how many reviewers you need to meet a deadline; those reviewers have to report to someone on a day-to-day basis, and that person needs to have an intimate understanding of the whole case, your overarching legal strategy, and whatever technology you’re using to assist human reviewers. Even after you agree on answers to all those questions, someone should be reevaluating things on a daily basis as new information comes to light. Of course, all these challenges multiply if you’re leveraging remote review for multiple cases.

So that raises a follow-up question…. Who should be that someone?

How Managed Review Can Help

In an unmanaged remote review situation, a client is still on the hook to answer questions from reviewers as they come up; the client needs to clearly communicate to reviewers what they’re looking for, and make sure all these different reviewers are taking a consistent approach to coding documents.

Unmanaged review does cost less money, but there can also be dire consequences if this point person is already spread thin and not able to give review management enough attention. What happens if an attorney gets caught up in court and can’t answer reviewers’ questions? What if they don’t notice that more reviewers are needed until it’s too late? What if they aren’t assessing progress often enough, and don’t realize a pivot in legal strategy is necessary until review is 99% done and there’s still no “smoking gun”?

This is why the biggest law firms that are dealing with complex litigation on a regular basis typically hire dedicated discovery project managers apart from their regular attorneys. They know that discovery can require near constant attention, and oftentimes it’s just not possible to give it that attention while dealing with all the other demands of being a lawyer: writing briefs, going to client meetings, court dates, etc. Such firms also know mismanaging discovery can have dramatic impacts downstream. Therefore, investing in constant vigilance at every step of the process will pay dividends later.

Managed review means you are not only temporarily hiring reviewers, but someone to manage them. Clients get to meet with one point person, describe their legal strategy and what they’re hoping to find in review. That point person turns around and handles all the other emails and meetings with the review team. Project managers can catch issues early on and bring them to the client’s attention.

How Do I Decide Which One Is Right For Me?

There’s different reasons someone might go the managed review route over unmanaged route. One might be that they simply don’t have attorneys with that discovery project management skillset. With managed review, a firm that cannot justify hiring discovery PMs internally can still have the same level of vigilance as a firm that could.

Another reason is that even if attorneys are perfectly capable of managing review themselves, their current caseload just doesn’t allow them to give it the attention it needs. By letting someone else answer more of the emails and sit in on more of the meetings, that attorney can focus on other things that a discovery PM couldn’t do, such as deposing witnesses or writing briefs.

Of course it’s going to depend on many factors specific to your case which can’t be addressed here, but generally the key factors that should shape your decision are:  

  1. Do you have discovery project managers internally? These could be either dedicated personnel or attorneys who have experience managing review.

  2. Do those people actually have enough room on their plate now to take on the responsibilities of managing this review?

If an unmanaged review situation is likely to result in either a) an attorney not having enough time to give all their matters the attention they deserve or b) review being managed by someone who’s never done it before and may not understand the intricacies of it, the managed review route is often best.

How eDiscovery ALSPs Can Build a Better Future for Clients

For better or worse, eDiscovery ALSPs are playing an increasingly important role in complex litigations. That means the choice of who you pick for an eDiscovery vendor is becoming increasingly important too.

On paper, most vendors are essentially the same. They’re all offering to do the same work. Oftentimes price is the main thing differentiating Litigation Depot from Discovery Warehouse. That makes choosing harder, yet it’s still too important a decision to take lightly.

Since oftentimes the question of “can this vendor do the work I need done?” ends up as a draw, it’s important to look at other factors as well. One of the questions we like to raise at Contact is “how will this vendor’s work leave me better off than I was before?”

The way eDiscovery ALSPs approach their work can affect the way legal teams approach matters in the future. Yes, even matters where that client doesn’t re-hire the same service provider. Today, we wanted to give a general overview of the things that future-oriented service providers do differently compared to those that are only focused on one specific matter.

1. Spot vulnerabilities

Every case is different. That means the kind of data that is relevant can vary from case to case. Most vendors will rightfully start by looking for information that is relevant for the case they were actually hired for.

But… what about all those other cases that may or may not have happened yet? A vendor that is too laser-focused on the matter at hand might miss vulnerabilities that could be exploited later. Oftentimes, if you’re going through large chunks of data for one particular matter anyway, it’s more efficient to look for other potential vulnerabilities while you’re at it vs. two totally separate searches for two totally separate matters.

2. Establishing deletion & retention policies

One of the most important pieces of any information governance program is a consistent policy for deletion and retention. If your team does spot vulnerabilities, what do you do next? Deleting data that might be needed later could have disastrous consequences. Retaining literally everything could make future matters just as difficult to manage as this one, if not worse. It can also lead to privacy concerns and potential issues of non-compliance as more and more jurisdictions pass personal data protection laws.

A good eDiscovery service provider can help you make those calls, and give you the insight you need to keep making them later. By helping you delete the things you can, you’re better able to organize the data you do have to retain. Sometimes, the right deletion policies can even prevent future litigations from happening in the first place. 

3. Make data more accessible to the people who need it

One of the reasons legal teams might choose to a hire a vendor in the first place is because they simply don’t have access to the data. This is especially true in cases with a large forensics component, where deleted data needs to be recovered. The nice thing about such a case is once that data is made reviewable once, it doesn’t need to be made reviewable again (at least if you’re doing it right!)

Another challenge can be clients who are overly reliant on outside counsel or other eDiscovery vendors to handle their data. The data exists, but the client wouldn’t know where to find it. Some of the more unscrupulous vendors of eDiscovery like it that way. However, a future-oriented vendor will work to make sure the right people can access their data and easily find the data they actually want while still accounting for all the necessary privacy and security challenges.

4. Standardize workflows

Complex litigation can be overwhelming. Quite frankly, it’s usually still pretty overwhelming even when you do have a good vendor at your side. However, knowing there’s a standard operating procedure whenever major litigation comes up can make a world of difference.

While it is true that every case is different, it’s also true that a few basic fundamentals of discovery rarely, if ever change. Knowing where to start and who’s responsible for what can go a long way.

By having data that’s well organized and accessible to the right parties, it’s much easier to hit the ground running when a litigation comes up. You can quickly and easily check to see if any of the relevant data from prior cases is going to be relevant this time around; you might have a list of places to check for ESI that isn’t immediately accessible; perhaps a shortlist of what vendors to call for what type of work.

This means that your organization can maintain consistency even as employees leave and new ones come on board.


What do you wish more ALSPs would help you with future eDiscovery matters? Let us know in the comments!

Why Mobile Data eDiscovery Is Different Than Email eDiscovery

It’s 2021, which means it’s highly unlikely that this is the first blog post you’ve read saying you need a mobile data eDiscovery plan. Most of us get that by now.

However, you can’t always take the same technology and approaches you’re currently using for email and superimpose them on mobile data. It just doesn’t work that way. Unfortunately, it can be hard to wrap your head around just how different texting and email really are until you’re neck deep in a project.

Today, we wanted to walk through some of the main things you need to account for while collecting, processing, and reviewing mobile data. By understanding the differences between these channels, you can not only ensure that you’re including mobile data in your eDiscovery strategy, but that you’re doing it right.

“Texting” is actually 3 different things that LOOK like 1 thing.

Generally speaking, emails are emails. After the initial collection, it doesn’t really matter much if those emails came from Macs or PCs, or if the company ran their emails through Microsoft 365 or Google Drive. Emails can be imported into a review platform, and reviewers don’t really have to care that much about where they initially came from.

What a layperson thinks of as “texting” is actually a combination of as many as three different types of communications: SMS, MMS, or iChat. We act like they’re the same thing because generally, our phones make them look like one thing. I don’t have a separate app for sending SMS messages vs. MMS messages. My phone doesn’t yell at me when I reach the character limit for an SMS, it just automatically converts it without me having to think about it.

During data processing, these messages that seem identical on the front end often get sorted out into different buckets on the back end. That means that if custodians were iChatting, lost wifi, and then switched to SMS, that single conversation may get ripped apart and reviewers have to piece it back together.

When you’re identifying potential sources of data, it’s important not to just ask about “texts.” If possible, try to figure out how texts break down into SMS, MMS, and iChat. The best mobile data eDiscovery technology can thread these messages together, and depending on how many phones you’re collecting, it might be worth that investment. At the very least, making sure you know how texts break down into SMS, MMS, and iChats helps you better assess how long review should take.

Mobile Communication Has No “Subject Line” 

Most work emails have a subject line; generally, emails in that same conversation also have that subject line. Sure, sometimes conversations naturally flow away from that initial subject, but at least it’s a valuable starting point that helps discovery teams understand what messages belong together, and which ones might be duplicates; this is the basis of how review platforms utilize email threading.

Not only does texting lack a “subject line,” it’s also a place where users simply don’t even try to sort their conversations out into multiple threads the same way. Earlier today, I frantically texted my mother about a jacket I left at her house, and within minutes she was asking me to text her a recipe for banana cake.

Those two conversations coexisted in the same thread, with messages right on top of each other. That’s just how a lot of us text. I pity any review team that would have to go through my phone and find messages relevant to their case with so many less relevant messages randomly scattered across my conversations. (On the bright side, they might get a nice banana cake recipe out of it!)

Threading messages into conversations is one of the most important things that any good review platform does for reviewers; it’s even more important when users aren’t naturally “threading” their conversations together by default.

Mobile Communication Usually Requires More Redactions

On a related note, professional communication is more likely to co-mingle with personal communication in text messages compared to email. That’s especially true in companies where employees still use their personal device for company business. With email, we tend to have a dedicated work account apart from our personal email account. Users understand that there’s no reasonable expectation of privacy in their work emails. That’s not always true in mobile, particularly at companies that don’t issue company-owned phones or have clear Bring-Your-Own-Device (BYOD) policies.

What if that thread where two work friends texted about trade secrets also mentioned things like doctors’ appointments or included pictures of their kids? Legal teams need to be able to redact irrelevant personal information in order to protect custodians’ privacy. That irrelevant personal information rarely shows up in emails, so redacting isn’t a concern to quite the same extent.

Some review platforms support redactions more easily than others. A cumbersome redaction process might not be the end of the world when you’re primarily dealing with emails, but it can seriously hinder progress when there’s a lot of mobile communication and redactions are needed more often.


When there’s a lot of mobile data in your eDiscovery project, it’s important to consider how technology and user behavior shapes this data. This is nowhere near an exhaustive list of the reasons why texting and email are different, but we hope it’s enough to get your wheels turning. What kinds of stumbling blocks have are tripping up your mobile data investigations? Reach out today and let us know!

Curious to know more about how Contact Discovery attacks mobile data investigations? Check out MobileRev™!

Contact Discovery’s MobileRev™ solution turns text messages into near-native images for review

What Do You Do When eDiscovery Tech Support Isn’t Enough?

There’s a pressing legal matter at hand. Deadlines are fast approaching. The last thing you want is to be stuck waiting on a response from tech support. Unfortunately, this is becoming an all-to common issue with eDiscovery platforms.  

Too often, software companies overstate the simplicity of their products. While it may be perfectly true that an end user finds a program intuitive and easy to use, that doesn’t necessarily equate to easy maintenance behind the scenes. When legal teams are too quick to buy these allegedly silver bullet solutions without anticipating that extra maintenance, it can lead to friction that slows down discovery.

Naturally, legal teams look to their tech support at whatever company made the software. Oftentimes, support staff is doing the best they can, but they can only do so much. If a software company is pouring money into sales and marketing efforts, but not scaling IT support at a fast enough pace to accommodate those extra users, it usually leads to frustration all around. As more and more venture capital flows into eDiscovery from people who don’t actually have any real experience in discovery, that industry-wide growing pain is unlikely to go away anytime soon.

eDiscovery vendors have an important role to play here. By bridging the gap between end users and software companies, service providers can help alleviate some of the strain on tech support, making it more helpful to those who do need it. Meanwhile, legal teams can increase the functionality of their existing software, solving their problems for (usually) far less money than investing in new software.

But why isn’t this program as easy to use as the salesperson said it would be?

Different people mean different things when they say “easy.” A lot of the latest eDiscovery solutions are far more intuitive than ever before, which is great! That tends to be what most companies will focus on in their sales and marketing efforts.

However, ease of use doesn’t automatically translate to ease of maintenance.

For example, my brother and I own two different cars, specifically a 2007 Honda Accord (me)  and a special edition Toyota 86 (my brother). My brother’s car handles really well. He can make tight turns at high speeds in a way I can’t. He can accelerate faster. The driving experience is all-around better in his car than mine (presuming you can drive a stick shift of course).

There’s a flip side to this. My brother has to put premium gas in his car; mine takes unleaded. It’s easier for me to find mechanics who keep the parts my car needs in stock. If my brother has an issue, it’s more likely that his mechanic would have to special order the part he needs, thus keeping his car in the shop longer. So while the “user experience” in his car is better, my car is easier and cheaper to maintain. Sometimes ease of use and ease of maintenance coexist, sometimes they don’t. It’s just important to recognize that they’re not the same thing, and one does not necessitate the other.

eDiscovery is an ever-changing field, which means many software programs require regular updates. The more intricate the software is, the more intricate those updates are likely to be, and they can take a while to install. How do you get them done while still making sure a discovery environment is ready to go when reviewers need it? In some cases, the Contact team will run patches at midnight, if that’s what it takes to avoid disruptions to our clients’ regular workflows. By providing crucial, ongoing support to a discovery environment, service providers can step in and offer ease of maintenance to compliment the software’s ease of use.

Why would I need an eDiscovery vendor if I can do most discovery in-house?

We’ve found that technical maintenance of eDiscovery environments can still be a common stumbling block, even for organizations that are fairly capable of handling most other aspects of discovery. That makes sense if you think about it. Plenty of people can drive a car, but don’t know how to change their own oil.

One of the misconceptions such organizations have about “service providers” is that you only need them if you plan on significant outsourcing. A firm that has their own software license and qualified project managers doesn’t need to spend money on costly vendors unless there’s an abnormally large sum of data at hand.

However, retaining a vendor to manage a discovery environment can be far less expensive than paying a vendor to actually do your discovery work for you. It’s similar to how owning your own car still requires you to pay for gas and upkeep, but you’re not going to spend as much as you would if you took a taxi every time you had to go somewhere.

Most lawyers already know that paying for litigation costs far more than the hours it would take to review contracts and close loopholes before they’re exploited; discovery software maintenance works the same way. It’s more economical to stay on top of updates and patches than it is to put out fires as they happen.

“Tech support can be great for solving one particular problem in the here and now,” says Zack Schanz, Director of Project Management at Contact Discovery Services. “It’s not really built to maintain your environment and prevent problems before they happen. They also don’t have the same knowledge of a client’s environment that we do because we’re in that environment every day.”

“You get a lot of brains for the price of one,” says Scott Keeble, Director of eDiscovery Operations at Contact Discovery. “We have more regular communication between our team members compared to an average tech support line, where maybe Joe is handling this ticket but has no direct communication with Jane who handled your last ticket, just a brief summary in the report. We’re able to quickly reach out to each other and say ‘hey, what did you do last time?’ and get to solutions quicker.”

“Can’t I just have my regular IT team take care of this for me?”

Well, it depends. Yes, technically any IT department could learn to manage an advanced eDiscovery software environment. However, they’re also managing other IT functions too. Your company’s email system; the billing and accounting software; the contract management platform; any other databases your organization needs to function properly; the underlying hosting and internet that all those other things rely on to work.

All of those things need routine updates; All of those things can be potential sources of data breaches if you’re not on top of maintenance. All of those things can become slow and dysfunctional if they’re not supported by the right infrastructure. A good IT team can juggle all those programs and keep technology running smoothly for everyone else.

However, there’s a misconception among non-IT people that once you “work in IT” it’s easy to simply add more programs to your plate. The truth is IT is just like any other job: the longer your list of responsibilities gets, the harder it can be to do all of them well.

We recommend consulting your IT department before any major commitment to a new discovery platform (or any software solution for that matter). They’ll know what they can and can’t handle, what resources they might need for implementation, and they’ll be able to better predict how steep the learning curve will be.

If your internal IT people are already spread pretty thin, a vendor can help. A team of dedicated discovery professionals that are focused on your review software frees up your regular IT department to stay on top of all their other responsibilities. Plus, they can apply their discovery experience with other clients to your technology in a way more generalized IT personnel can’t.

Still Have Questions About How Service Providers Can Keep Your Discovery Programs Up and Running? We’re all ears.

4 Questions to Ask During an International eDiscovery Project

eDiscovery is often unpredictable. The variables only multiply when you introduce an international component. Knowing what questions to ask is crucial, and the sooner you get the answers to those questions, the better off you are. By anticipating those additional challenges ahead of time, you can build the right strategy that sets you up for success.

1. What are the laws that govern data privacy?

One of the first things you’ll want to consider is likely pretty obvious already: different countries have different laws! Sometimes an organization can simply hand over the personal data of its employees, but you certainly shouldn’t take that for granted. Sometimes, an organization’s ability to transfer that data in the first place is limited by local policies.  

The European Union’s General Data Protection Regulation (GDPR) is the most famous of such regulations. The GDPR establishes standards of what data organizations can store on an ongoing basis. Compared to the U.S., there’s much stricter standards governing the level of consent that an organization must get from the employee in order to keep their information on file, or more importantly, share it with a third party. Organizations can incur hefty fines if noncompliant.

However, even if your project falls outside the purview of the GDPR, you still can’t assume that you should approach data the same way you would domestically. Jurisdictions all over the world are still hashing out their data privacy policies. Japan has their Act on the Protection of Personal Information, with new amendments set to take effect in 2022. Stateside, the most well-known is also have the California Consumer Privacy Act (CCPA), but we’re already seeing other states use that as a blueprint for their own rules. Virginia’s governor signed the Virginia Comprehensive Data Privacy Act earlier this year, and it will go into effect in 2023. A similar bill was also introduced in the New York State Senate.

There are fairly decent odds that between the time of this writing, and the time that you find this blog post in your internet meandering, some government somewhere has enacted or amended a privacy law. Make sure your team does their homework and is compliant with all relevant regulation.

2. How will we translate communications in other languages?

There are all sorts of ways in which language barriers can make discovery harder, but one of the hardest ones is translating relevant information into English for U.S. attorneys.

“[Machine] translation apps struggle with slang and can misinterpret the provided content,” says Jamente Cooper, Lead Forensic Analyst at Contact Discovery. “The data itself is still in commonly used databases or files but understanding the content as it was intended is still a daunting task.”

In a perfect world, you’d have actual humans who know the language in question doing review. This is your best shot at understanding how a native speaker might’ve intended their words.

In the imperfect world we actually live in, that’s not always possible. Oftentimes the most practical solution is something in the middle that utilizes technology and human knowledge. Maybe one or two reviewers actually know the other language, but English speakers can review digitally translated content and refer any trickier conversations to their teammates who can read the source language.

Before you start collection, start formulating your game plan for how you’re going to handle data in languages other than English. You’ll likely have to start looking for qualified reviewers earlier than you usually would to account for the extra challenge of a foreign language.

3. What apps are common in this market?

There are a few old standbys we go back to over and over again in the discovery world: emails; the word docs and pdfs that get attached to emails; in more recent years, text messages and other mobile apps have reached a similar level of prominence. However, messaging apps can vary in popularity depending on where you are on the globe.

During an international case you simply can’t take it for granted that custodians are communicating the same ways they would domestically. WhatsApp for example has a global userbase of over 2 billion, but only 75 million in the states. That means roughly 2/3 of the app’s users lie outside the United States. One study of Android devices showed that WhatsApp is the most popular chat app in 58 different countries. A Japanese-based app called LINE is virtually unheard-of in the U.S. but incredibly common in its home nation and some other Asian markets.

Every case is different, and you never want to confine yourself to business-as-usual data types without covering all your bases, even domestically. However, the possibility of overlooking an important data source goes up when you’re in a foreign market that has latched onto different communication channels.  

4. How much data is there?

So yes, this is a common question regardless of where you’re doing your discovery project. However, you might be surprised at how much the sheer quantity of data changes when there’s an international dimension to your case.

In the U.S., we generate a lot of data. Personally, I’ve worked in U.S.-based offices where people commonly used email to communicate with coworkers who were literally in the same room. Many people see it as more polite to send an email or Slack message so that their teammate can get to the issue on their time rather than call someone or pop into their office without prior warning. The U.S. has also normalized talking about work outside regular hours, and using channels outside official company email accounts. 

The result is piles and piles of data. In some ways that makes cases easier since your odds of finding relevant information go up when everything is so well documented. However, identifying and collecting that data becomes that much more daunting.

When discovery goes abroad, the social norms of how people communicate are different. In some places, it might be unthinkable to send work-related texts on a personal device. Maybe conversations that Americans would have over email instead happened over the phone. It could be a total waste of resources to collect lots of devices assuming that there’s more relevant data than there really is.

As important as it is to think of differences in the laws and technology, don’t underestimate how these kinds of alternative social norms can put a wrinkle in discovery. Do your research about how people tend to communicate, and adapt your strategy accordingly.

Are there any challenges you’ve faced in international discovery that you think more people need to be aware of? Let us know in the comments!