eDiscovery Review: Selecting a Vendor, Part 2

The discussion regarding the considerations to keep in mind when selecting an electronic discovery vendor continues where Part 1 left off, and discusses metadata, IT and costs.

Metadata

The review platform of choice should provide access to the metadata contained in the documents. This is the case whether you are doing a native or TIFF/PDF based review. Depending on the nature of the case and the issues at hand, the metadata may be extremely important. Consider a situation where there is an allegation that an email has been altered or falsified. Analysis of the metadata for that email will verify where and when the message was sent, where and when it was received, and the size of the message.

Metadata is typically described as data about data. There are three sources of metadata. Most often we think of it as the operating system data that appears in Windows Explorer when you view a file list (title of document, date created, date modified, size, folder name, etc.) and the "Properties" of the document (original author, page count, template used to create, date printed, etc.). E-mail metadata contains even more information regarding the creation, forwarding information, delivery path and receipt of the email.

Metadata is also the data found in the body of the document, such as comments inserted by the author or document deletions or revisions. This type of metadata is viewable in a native document with just a few mouse clicks. Depending on the review platform being used and whether you are viewing native documents, html rendered documents or TIFF/PDF files will impact your ability to access and review this information.

A review platform should not only accommodate the display of this data for review, it must also allow for searching of the data in conjunction with as well as separate from the text of the actual document. The system should also allow sorting by these fields for ease of organization and review.

Another issue to consider regarding metadata is the ability of the vendor's platform to "normalize" the metadata fields for ease of searching. A single document collection may have MS Word documents, MS Excel, Adobe PDF, MS Powerpoints, RTFs or plain text files as well as email. Each of these software applications contains metadata, but the naming conventions used for their individual metadata fields are not standardized.

To make things even more complex, different versions of the same application may also use a different naming convention. This may result in metadata fields with labels such as: Creation Date, Created Data, Created on, and Create date. Intuitively, we all know that these field names mean the same thing, but computers, as smart as they may be, are not that intuitive.

It is critical that the vendor's platform or conversion process have the ability to normalize these field names and offer one aggregated date field for searching and sorting purposes. It is also imperative that the vendor retain the original naming convention so that when the data is produced, the original name can be used in the load file or other accompanying documentation.

Comments and revisions made to documents can be incriminating or exonerating, so ignoring them can be potentially damaging. They must be reviewed not only for responsiveness, but for privilege. The review platform must allow this data to be easily exposed to the reviewers, either in a native application or in the accompanying data load file.

IT Considerations

IT issues need to be thoroughly reviewed and discussed before selecting a online or in-house vendor so that you assure the system is compatible with your internal infrastructure (see Planning the Review). Any vendor should be able to provide you with a list of its system technical requirements so that you can review with your internal IT department.

Typically it would be necessary to have your internal IT group approve any software applications being installed within their network environment (an in-house solution), and they will likely have a standard evaluation process that your selected vendor will need to go through.

It may not be necessary for an online vendor to go through a rigorous process, since access is typically through your internet browser, but at a minimum you should discuss the following IT related concerns:

Disaster Recovery, Security and System Performance

Hopefully a catastrophe never happens, but you must be aware of the contingency plans your vendor has in place in case the unforeseen does occur. You need to understand the security around their physical plant, their employees and their data center. Questions to raise:

  1. How is the database architecture configured?
  2. How often are backups of the system taken?
  3. Where are these backups stored?
  4. What are the recovery procedures and costs for a recovery?
  5. What is your average downtime per month?
    • For maintenance?
    • For other outages?
  6. How are the systems monitored?
  7. Does the vendor provide a Service Level Agreement (SLA) for support, uptime, etc?
  8. How do you screen your employees?
  9. Is your physical plant locked at all times?
  10. What security is there on your internal data center?
  11. What security does the online system provide?
  12. How is access to the system granted and by whom?
  13. What security is available (Terminal Services, SSL, VPN or other)?
  14. How often are passwords required to be changed?
  15. What preventative measures are in place against hackers?
  16. What preventative measures are in place to prevent your data from being accessed or viewed by their other clients?

Configuration of Reviewers' Machines

You need to understand if the vendor's system requires any special hardware or software on the reviewers' machines.

  1. Are there any downloads necessary in order to view or access the data (i.e., java applet, viewer, etc.)
  2. Are there browser requirements or configuration settings that need adjustment?

Internal restrictions

It is possible that your internal infrastructure may present some roadblocks to accessing the vendor's system. If this is an in-house solution, you will need to work closely with your IT group as noted above. If it is an online, web-based solution, there may still be potential issues. Be sure to review these with your IT group and vendor.

  1. Does your IT group have any internal restrictions for viewing or accessing documents over the web?
  2. Does your internal document management system automatically intercept documents viewed through your web browser?
  3. If you are going to be printing and downloading documents, does your internal firewall have any restrictions that may impede the process?
  4. How does your virus checking software work and will it impact the viewing or downloading process?

In-house Support

Is your internal IT team available for user support to resolve these and any ongoing IT related issues?

Vendor Considerations

There are many factors beyond price, processing capabilities and system features to consider when selecting a vendor. Of course you want a vendor that is knowledgeable, experienced and responsive to your needs, but you also want a vendor that is financially stable and is still going to be around two or three years from now when your case finally gets to court. The following outlines several key areas to examine during the selection process:

Experience, Stability and Longevity

How many years of experience does the vendor have and how many of those years were spent doing electronic discovery? Many print vendors have moved into electronic discovery fairly recently and may not have the depth of experience that you require (or want) for your project. Be sure to ask about the nature of projects they have been involved in, how much electronic data they have processed, what types of data they typically deal with, how they run their productions. Perhaps the most important step you can take is to get references for their electronic discovery projects and call those references for their input.

It is also important to understand the financial stability of the company. There has been some consolidation within the industry of late, and more likely to come. A pending merger or outside investment may distract the company from its core business. Be sure and understand how the company is financed and whether it is profitable, recently merged or perhaps even struggling. The bottom line here is to be sure your vendor is going to be around for the entire life of your case.

Project Management Skills and Knowledge

The project managers, or in some cases account managers, who oversee the day-to-day work on your project are your lifeline into how the project is going. You should question the vendor about the project management team that will be assigned to your job. Find out who will be assigned; ask for information on their backgrounds. Determine how many years of experience they have, not only in electronic discovery, but in litigation support. What is the make-up of the team? Do the project managers have assistants who help with some of the day-to-day work? What technical support do they have to resolve technical issues? The manager should know and be able to work with your internal tools such as Concordance, Summation, IPro and other litigation support applications. Ask for a dedicated project manager for the life of the case to prevent turnover.

Your project manager should also be experienced in standard project management practices and techniques such as proper client communications, project tracking and status reporting. Ask how often you will receive status reports and set a schedule upfront if the project is predicted to be long and/or complex.

Depending on the nature of your project, your project manager may need to have fairly high level of technical experience. At a minimum, he or she should have easy and immediate access to IT personnel, developers or system engineers that can supply answers to your technical questions.

It may or may not be important to you where your project manager is physically located. As long as the vendor is willing to accommodate your work hours, this should not present too much of a problem, but certainly consider it during your selection.

Flexibility

Often the needs, direction, deadlines and deliverables may change during the course of the Review. It is essential that vendors be flexible and have a formalized change process in place to track and record changes made to the original specifications.

Support

The level of support you receive from your vendor is critical. Find out what the hours of support are and what it means when a vendor says they have 24/7 support. Does that mean you get a live person on the phone whenever you call no matter what time, or do you get an answering machine or pager? Every minute can be critical when you have a large review team working 20-hour days.

Who is going to answer the phone when you call? How knowledgeable is that person? Your dedicated project manager is not on duty 24 hours a day, so understand the chain of command and escalation policy and procedure when they are unavailable.

Obviously your vendor should be thoroughly knowledgeable about its own tools, but gain an understanding of how technical your vendor is. Are they familiar with supporting applications like IConnect, SummationBlaze, Ringtail, Concordance or other applications normally used by your firm? This can only be helpful to you in the long run to work with a vendor that can provide advice across the board.

Finally, does the vendor have a service-level agreement or its equivalent in place that outlines the specific level of support and procedures for the support team? If not, ask for one.

Training

Be sure and get satisfactory answers to the following questions regarding training from your vendor:

  1. What training does the vendor provide to you and your team?
  2. Does the vendor charge for training?
  3. Do they provide administrator training separate from reviewer training?
  4. Do they provide onsite training?
  5. How about ongoing training for new employees?
  6. How often do they release "new" versions of their software and do you get training on the new features? Is there a charge?
  7. Do they provide training manuals that cover all aspects of their system?
  8. Does the manual provide definitions for the vendor's specific terminology?

Cost Considerations

The desired outcome of any electronic discovery investment should be a reduced discovery bill and the more expeditious completion of the discovery effort. Understanding the total cost of electronic discovery requires combining expenses from two primary categories: technology cost and attorney review cost. An estimated attorney review cost can be determined by multiplying the blended hourly attorney rate by the number of total hours required to review all material. The technology cost is the aggregate of fees associated with collecting, processing and hosting data in addition to any software expenses related to the review of documents. Project management and/or consulting fees related to this technology can be included in the technology cost.

An obvious factor in selecting the appropriate vendor for your electronic discovery review is the direct costs involved in choosing that system and the potential cost savings that can be gained through tools or features the system offers. The associated costs for collecting, restoring, processing and producing the electronic data are covered in those respective sections. Costs and cost savings associated with the actual review process or methodology may include:

Monthly Hosting or User Access Charges

These charges could be based:

  • Per file
  • Per megabyte
  • Per page/image
  • Per named user
  • Per concurrent user

 

Project Management Fees

Project management fees charged by a third-party vendor may be extreme if the matter is complicated and you require daily assistance in administering the site. Be aware of what those charges are, monitor them closely and negotiate a flat monthly fee if possible.

Universal Viewer or Application Software

If files remain in their native format, either a universal viewer will be required that can render the file in a readable format to the reviewer, or the reviewer will require individual copies of each potential software application. While costs can potentially be minimized with a universal viewer, there may be technical limitations associated with such viewers. They may not have the capability to view the metadata or features such as hidden text, hidden rows, comments, embedded or linked graphics.

Impact of File Formats on Review Speed and Efficiency

The format of the files can also potentially affect the speed or efficiency of the individual conducting the review. Advantages in terms of speed, and therefore reduced costs, can often be realized if the reviewer works in a uniform environment. If they are continually working with TIFF/PDF images or renderings through a universal viewer, they will become comfortable and familiar with the software features and controls such as page up/page down, end/beginning, zoom etc. This efficiency may drop however if a reviewer is in native applications and switching between spreadsheets, word processing files, databases, etc.

Redactions

Most review applications developed by litigation support vendors today include features that allow for blackouts or other redactions to be applied to the images that will ultimately be produced to opposing counsel. While some limited redaction features have recently become available for native word processing files, this is not the norm today. This represents both a technical and cost consideration for reviewing in native format.

Keyword Searching

Keyword searching can be used to automatically flag potentially relevant or privileged documents (or conversely to exclude documents that do not need to be reviewed). Examples would include searches on subject matter, mentioned names, date ranges, etc. Using these automated approaches can significantly decrease costs by either excluding a large percent of the population or increasing the efficiency of the reviewer by highlighting the terms in context. See the Emerging Technologies section for recent advancements in searching and organizing the data for review efficiencies.

Grouping Similar Document Types

Grouping of similar document types (contracts, drawings, reports) can also result in a quicker review process as the reviewer gains familiarity with the documents and understands what they are seeing. In addition to grouping on document types the system might also be able to group on attributes relative to the collection. In other words, all files collected from the Accounting Department can be funneled to one set of document reviewers, whereas all files collected from the R and D Unit might be sent to other more technical reviewers. Familiarity, understanding of the information being presented and uniformity all lead to increased efficiency and lower costs.

Training and Support Costs

Training and support costs charged by a third-party vendor should also be factored into the decision. Some vendors offer these services free of charge, but some may charge nominal fees. Most vendors will charge extra for expedited or rush services, so planning ahead to contain those costs is essential.

Source: EDRM (edrm.net)