E-discovery a challenge for solos, small firms

Ready for an e-discovery challenge?

Earlier this year, Austin, Texas trial lawyer and technologist Craig Ball threw down the gauntlet with E-Discovery for Everybody: the EDna Challenge.

His hypothetical: a small law firm wants to conduct a do-it-yourself in-house review of electronically stored information in a small case with a budget of $1,000. What should they do? Is such an undertaking even possible?

John Simek, vice president of Sensei Enterprises, a computer forensics and legal technology company based in Fairfax, Va., said the challenge illustrates a common problem for the many lawyers who can’t afford the e-discovery tools currently on the market.

“It doesn’t make sense to throw $10,000 for e-discovery at a $50,000 case,” he said.

The challenge came about after Ball witnessed a number of small firms and solos “make dangerous compromises” by ignoring electronic information in their cases, or trying to convert it all to paper by printing everything out.

“A lot of people are being presented with information they don’t know how to access,” he said.
Some lawyers don’t understand how to find metadata on electronically stored information. Others simply pretend electronic information doesn’t exist.

Ball asked leading e-discovery lawyers and forensic technologists what tools and techniques they would suggest to meet the challenge.

While the experts had some possible solutions, the challenge hasn’t been fully met, Ball said: solos and small firms still need to cobble together various programs and tools that were not intended for electronic discovery purposes and try to make them work.

The EDna Challenge

In Ball’s hypothetical “Edna,” who runs the firm, is about to receive from her client in a construction dispute two DVDs containing Outlook files from six people, as well as various Excel spreadsheets, Word documents, PowerPoint presentations, Adobe PDFs and possibly some video, photographs and voicemail.

All told, the electronically stored information in the case comprises less than 50,000 documents and e-mails, but could grow to 100,000 items over the life of the litigation, which could last another couple years.

Ball said “Edna” wants to conduct the e-discovery in-house, with a paperless privilege and responsiveness review, although she will have help from a legal assistant and a tech-savvy associate.

But “Edna” can only spend $1,000 on new software or hardware. How should she and her firm proceed?

Ball set specific goals for the technology used in the challenge, including the preservation of relevant metadata, de-duplication where feasible, efficient workflow, rudimentary redaction and the ability to run well on most late-model personal computers. “Free trial” software was fine to use as long as it would be accessible for the life of the case, estimated at two to three years.

The experts provided several suggestions. Some proposed open source Linux tools that wouldn’t cost a penny, although they would require some technical expertise.

Simek suggested the firm use part of its budget to buy at least an hour’s worth of time with an e-discovery consultant, to help it get started.

Others thought that it might be possible to use software or programs the firm already had, such as Outlook 2007 and Adobe Acrobat; while others proposed specific products that might be able to help with the process, including dtSearch (a text-searching product) or Lexbe (an online review tool).

But no one product or service that could meet all of the firm’s needs was within its budget. For “Edna,” and other solos and small firms facing similar e-discovery challenges in real life, meeting a $1,000 budget requires a “tech-savvy” lawyer (or assistant) who can cobble together various programs, Ball said.

Meeting the challenge?

Sharon Nelson, president of Sensei Enterprises, has written about the Challenge and various attempts to solve it on her e-discovery blog, Ride the Lighting. She noted that no clear winner has emerged.

“The pricing has been very, very muddy,” she said.

Ball hopes that news of the Challenge will elicit a response from the e-discovery industry, when it realizes that a large segment of the market is being ignored.

“The majority of lawyers in this country do not practice in 1,000 plus attorney firms,” he said. “In my mind, what is missing are desktop tools for the solo and small firm lawyers that would meet their needs in smaller cases, including foreclosures, small contract disputes, domestic relations matters — the cases that make up the vast and overwhelming majority of trials in the U.S.”

Specifically, Ball envisions a product “that would let someone like ‘Edna’ sit down at her computer, take some electronically stored information … throw a piece of software at it, and after a few minutes or an hour, be able to move through that data as if it were her own. Search, group, annotate and analyze in an effective, efficient, cost-accessible way.”

Ball analogized to a program like Quicken, which came out and suddenly made online accounting possible for everyone.

One possible “bright spot,” according to Ball: the increasing availability of hosted options, such as Software as a Service or cloud computing. While many lawyers are uncertain about this new technology (Web-based software that users can run remotely) and understandably concerned about its security, Ball said it could be an option in the future.

In the meantime, “Edna,” and others like her, will continue to hunt for a solution.