Editor: Describe your role in the firm.
Cohen: I act as an in-house litigation technology consultant to the firm and am responsible for all practice-specific applications and technology services used by the firm, including the firm's e-discovery and litigation support operations. My team and I support the firm's litigation and labor lawyers as well as its attorneys in the transactional practice areas, as needed.
Editor: Representing a client in e-discovery involves a number of steps including meet and confer, preservation, collection, review and production. Can the firm handle every step or must the firm or the client outsource some of the steps?
Cohen: The firm can handle every step of the process. Proskauer has significant electronic discovery experience ranging from matters with small productions to more complicated productions involving large volumes of documents and technical computer forensics issues. But before we undertake a particular step, we ask "can we do it" or "should we do it." Before developing any type of e-discovery plan for a particular matter, we need to understand the associated requirements. Every matter is different, and a cookie-cutter approach is neither practical nor advisable.
In certain cases it's better for our clients if we outsource certain parts of the process. In other cases, we can leverage our own significant in-house capabilities. Whether we stay in-house or obtain outside vendor support depends on our assessment of the matter. There are no generic e-discovery projects.
When we do choose to outsource, we rely on strong relationships that we have built with core business partners. Our established providers understand how we work and have tailored their service offerings to meet our needs. They share our goal, which is achieving a desirable outcome for our client while simultaneously providing as much cost predictability and cost control as possible.
Editor: What is the extent of the firm's commitment to e-discovery in terms of staffing and equipment?
Cohen: The firm has made a strong commitment and substantial investments over time in people, technology and education. Hence, we are able to provide services at every phase of the electronic discovery life cycle. What sets us apart from other firms is that Proskauer not only supports these efforts operationally, but in order to stay on the cutting edge, the firm also provides a lot of support in strategic areas such as R&D. A good example of this is the work we've done testing various early case assessment tools.
Editor: What are clients most concerned about?Cohen: Cost is the concern that I hear about most. Risk mitigation is another major concern, and, obviously, outcome.
Editor: How early in a case can you get an idea of the cost of e-discovery?
Cohen: The first step is to understand the total amount of information that may need to be searched and understand the accessibility of that information. Once we have some idea of our search strategy, and the volume of information that will need to be collected and processed, we can make a reliable cost estimate fairly early on.
Editor: How is the firm able to achieve cost savings for the client?
Cohen: First, we defensibly reduce the volume of documents to be reviewed using advanced search and filtering. Second, we actively manage the costs associated with the processing and reviewing of material. By leveraging both our in-house capabilities and, as needed, those of our vendor partners, we are able to achieve predictable and consistent results that drive down the cost.
Editor: Are you able to achieve savings in the area of the review process? My impression is that the big cost in e-discovery is the eyeballing of documents by human beings.
Cohen: Yes, We are able to achieve cost savings in the review process, and you are right that the biggest cost in e-discovery is the attorney review time. Reducing the volume of potentially relevant material reduces the amount of time that lawyers need to spend looking at documents. We provide them with tools to make the review process as streamlined and as efficient as possible by combining technology approaches such as additional searching, filtering and clustering. That has a major impact on the cost.
Editor: What search technologies does the firm use?
Cohen: When you talk about search methodologies and technologies, we are able to use all of them as needed. These include keyword, Boolean, proximity, fuzzy and conceptual searching. Everyone is doing basic keyword searching. We have the capability to take that one step further by looking at keyword hit counts in order to tweak the terms, so that we can eliminate as many false positives as possible before people really start getting into the review. If we have a list of key terms, and one of them is generating ten times more hits than the others, we can look at that before further processing to understand why that is, which may avoid incurring unnecessary expenses down the road. It might be legitimate, or it might be that we need some tweaking.
Editor: Can search machines reduce the cost of reviews by lawyers?
Cohen: Yes. These tools can be used to identify documents that do not need to be reviewed by people. With key term searching, you can start looking at root expansion and stemming to eliminate variants that don't belong. With root expansion, you begin with the word, say, "work." Work is the root. If you do a wildcard search for "work*," you might get variants like "worker," "worksite" and "workload." You may only be interested in the words "worksite" and "worker," but not "workload." By using wildcard searches in this manner, you are able easily to cull out non-responsive documents.
We also use machines to eliminate various types of duplicate documents. Standard de-duplication eliminates exact duplicates. Near duplicate detection eliminates documents that have similar or identical content but are not byte-for-byte duplicates of one another. This can occur for several reasons. For example, if you have a Word document and a PDF of the same document, they are not duplicates from the computer's perspective, but they are near duplicates as far as we are concerned. So, we are able to identify near duplicates and, when appropriate, eliminate those as well from the stack of documents that need human review.
Another situation occurs when you have an email thread. Say that I send an email to you and you respond to me. There are now two copies of your original email. Those are near duplicates, but there is a certain weighting given to one over the other. We might focus on the end of the conversation - the one that contains everything as opposed to the one that started it all. You are going to review all of the conversation anyway, but there is usually little point in reviewing each stage of the back and forth that is cumulatively reflected in the final communication.
Editor: Can machines also be used to identify situations that require special attention by human reviewers?
Cohen: Yes. For example, we can use email analysis technology to identify gaps in the distribution of a collection of email over time. You may want your reviewers to investigate why there are approximately two thousand messages per month except for one period where it goes down to almost nothing. Looking at email threading you can enable reviewers to examine who people are communicating with and how frequently as well as who is sending messages to their outside email addresses. Email analysis can also be used to look at things like domain names. For instance, anything sent to or from Proskauer.com automatically might be identified as potentially privileged and then set aside for senior lawyers to review. All this puts information in the lawyers' hands, which allows them to determine on what they need to focus.
We can also use conceptual analysis to cluster documents together that are similar or contain similar topics or similar keywords, and then make some broad culling decisions based on their content. For example, say you have a whole group of documents that are related to fantasy football. Conceptual analysis allows you to cluster those documents together. Then a lawyer can decide to set that cluster aside if it is not relevant or, if relevant, they can give it special attention. However, it is important to note that not all tools are appropriate for every case. Our job is to provide the attorneys with a deep toolbox.
Editor: Is the use of the search technologies you described something that you do in-house and not something that goes outside?
Cohen: Everything I have described is frequently done in-house. However, there are definitely times when we choose to outsource. I am moderating a panel at Legal Tech this year which will examine the business drivers affecting the decision to in-source versus outsource, which is not just cost-related for us. There are a variety of different factors that need to be considered.
Editor: Lawyers are involved in eyeballing documents, and they come at various prices. Do you do such reviews in-house or do you outsource that activity?
Cohen: We have used both models. If you have a million documents to review in two weeks, chances are you are going to need outside assistance to get that done. In other cases, you may need a closer review of the documents that only an in-house review can provide.
Editor: Has the firm been successful in guiding clients through the e-discovery process without incurring sanctions?
Cohen: Yes, we have. We have taken a project management-oriented approach to electronic discovery. Central to that approach is understanding the requirements of every case coupled with management and control techniques that have been successfully utilized by industry for years to control large projects with lots of moving pieces - which is exactly what e-discovery is.
Editor: Is there anything you would like to add?
Cohen: I would like to address the role of the lawyer in shaping and directing the e-discovery process. The lawyers have the ultimate authority and the ultimate responsibility. My job is to provide the technology that enhances the lawyers' ability to do what they need to do. They understand the legal requirements. My job is to ensure that they also are aware of and understand the technology options and issues so that the right decisions can be made. Under their direction, that interaction extends to the client. This is a process that also has benefited us because the client almost certainly is going to bring in their information technology folks. The need for a liaison and, in some cases, translator is significant. Under the direction of Proskauer's attorneys, that is a role that we perform very well.
Published February 1, 2010.
