George Socha on Early Data Assessment, E-Discovery Guidance from the Courts and His Latest Project: Apersee

Created on June 26, 2012

Last week, we posted Part 1 of my interview with EDRM co-founder George Socha. In the second part of our conversation, George addressed some of his work around early data assessment, the role courts play in providing e-discovery guidance and Apersee, his latest project designed to help customers select from e-discovery software and service providers. Following is a recap of our conversation (click here to listen to the full interview):

Bartholomew: You recently authored a series of articles and led a webcast on early data assessment. How does early data assessment differ from the more traditional early case assessment?

Socha: I think language matters. If we are going to use a descriptive term for a set of activities, we ought to try to use a term that does a good job of describing those activities. You don't want a misalignment because that can lead to confusion, and we have enough confusion already in e-discovery. Most of the in-house attorneys I work with have a fairly concrete notion of what they think of as early case assessment. It varies of course from one to another, but typically it's a question of how do we assess a lawsuit early on. When you get sued and you're an in-house attorney some of the things you think about:

  1. Have these people sued as before? If so, how did it play out?
  2. Do we have insurance coverage for this?
  3. Can we handle this entirely internally, or do we want outside counsel? If so, which outside counsel do we want?

There are a whole host of decisions like that that need to be made early on. That's what I think of as early case assessment. Early data assessment also occurs early in the life of a case and involves getting your hands on some data and taking a look at that data to see what it can tell you. That can be a part of early case assessment, but it's not synonymous. If you picture Venn diagrams, you can think of early data assessment as a small circle within the much larger circle of early case assessment. With early data assessment, what you might do is identify early on two or three custodians who you think are really important. You talk with them, you interview them, but you also grab some of their data. You do that with two of three people not 200 to 300 people. You're doing that quickly; not with a goal of figuring out what you're handing to the other side but to figure out what it tells you about the matter you're dealing with. Is this something we should be settling? Are these the right people that we should be looking at? Who else should we be looking at? That's what I think of as the distinction between early case assessment – the much broader set of parameters that don't necessarily have anything to do with electronically stored information (ESI) and early data assessment, which is focused on the ESI.

Bartholomew: Are there any e-discovery case law trends that you're paying close attention to right now?

Socha: This will be perhaps heresy, but I think it's a mistake to rely too heavily on the courts to provide us with guidance on what to do with electronic discovery. Of course there are certain areas where their guidance is necessary and needed. But a lot of what people want out of courts isn't necessarily an area where judges are well suited. For instance, they want judges to bless their set of keywords. Why would a judge know why one set of keywords was better than another? Or they want a judge to bless the process they intend to use whether it's a predictive coding process or something else. Again, why would we expect judges to have any special insight into that when most of them have no experience and no understanding of the underlying technologies?

I still see an enormous need for education. For every lawyer who has a decent handle on what to do about electronic discovery, there are probably at minimum of 10,000 who don't. There's an enormous need for that type of education. The law schools are beginning to offer more in the way of courses that at least touch on electronic discovery. I think more of that would be helpful. There's also the whole issue of certifications and a whole set of questions there as well. Then there is the perennial question of how the people within law firms who do understand what to do about electronic discovery can be effectively used. I see all too often situations where the people who are working on a matter never have gotten in touch with the folks in their law firm who do have that experience.

We have a lot to do. We are still in the very early days of e-discovery and there is a lot ahead of us still.

Bartholomew: You recently launched a project called Apersee to help customers select e-discovery software providers and their offerings. How does Apersee work?

Socha: Apersee is an outgrowth of the Socha-Gelbmann Survey that we did from 2003 through 2009. One of the things we did in the survey was a ranking of providers. We did a wide range of rankings but folks generally looked just at the top five. We would see consumers, corporate and law firm both, only look at the top five providers but they wouldn't ask themselves whether the provider offered what they need. It's hard to make a top five list of anything. There are more than five top categories in the electronic discovery arena. If you're looking for someone who's focused on preservation of data, why would you be considering someone who offers a review platform? Yet, we saw those types of things happening.

What we're trying to do with Apersee is give consumers the ability to do a better job of identifying the providers whose offerings match up with their needs. We have about 1,100 providers - software and service both - some of them have gone since we put them on the list, there are a good 500 that we don't even have on the list yet. People have two options right now. You can go into the website, go to the selection engine and choose criteria that match what you're looking for and perform a search. As more information gets in there it becomes more useful. If you're looking for certain things, that can be a good way of finding folks so that you can then look at them further. What you get once you finish searching through the selection criteria is a standardized layout for information about providers.

I've been to every single website of every provider listed on that site, and I've been dealing with electronic discovery since the early 1990s, so I like to think I know a fair amount about it. I have a hard time looking at their websites and figuring out what they do. It's not necessarily that any individual describer does a poor job explaining it, but everyone explains it differently, and all websites are laid out differently. What we have set up is a standardized template for information about providers which explains each thing they have to offer, with the idea being that once people get to that stage it will be much easier for them to compare and contrast.

The other route people can take is that if the selection engine isn't accomplishing what they want, they can submit an opportunity alert on the Apersee site. When we get the information in from the form we reformulate the request and send it out to a group of about 2,700 people. Our experience has been that generally within the first 24-36 hours the bulk of the responses have come in. On average, there are probably 20 to 40 relevant responses that we then forward on to the person making the request, which can be made anonymously.

It is our understanding from talking with folks that by and large they have been quite pleased because they are able to, in essence, sample a pool to see if there is someone able to meet their needs.

This interview was recorded as part of Exterro's e-discovery podcast series. You can access the full recorded conversation here