Used correctly, eDiscovery is not a necessary evil that inevitably drives up the cost of litigation; rather, eDiscovery is a powerful tool for evaluating the merits of a case and finding the critical documents that might ultimately make a difference at trial. That is why we offer a full suite of services designed to maximize the bang our clients get for their eDiscovery buck.
Foley does not take a one-size-fits-all approach when it comes to eDiscovery. Instead, we tailor eDiscovery solutions to the unique demands of each case and with a view toward advancing our client’s objectives. Below, we describe the eDiscovery services we offer.
Data Management Counseling
The cost, speed, and accuracy of a document production are often dictated by the policies, procedures, and infrastructure in place long before a subpoena is served or litigation becomes foreseeable. Foley’s eDiscovery attorneys regularly work with IT, legal, and compliance personnel to identify retention obligations, evaluate business needs, flag privacy risks, and balance all of the competing factors in developing defensible document retention policies and procedures. We also work with our clients in evaluating “behind-the-firewall” IT solutions designed to lessen the burden of data management.
And, of course, we work with our clients to develop and implement defensible litigation hold procedures and to otherwise enhance our clients’ litigation readiness. The counseling Foley provides on the front end can save significant time, money, and effort on the back end when litigation or subpoenas hit.
Identifying, Preserving, Collecting, and Processing
The number of documents that will need to be reviewed depends on the amount of data identified, preserved, collected, and processed. If performed properly, each stage of the eDiscovery process should narrow and refine the documents to be reviewed, produced, and ultimately presented at trial. At Foley, we have the experience and knowledge to make the necessary judgments at each stage to ensure the process works as intended. We work directly with our clients’ IT personnel to identify and preserve the sources of relevant data. We employ automated litigation hold management tools so custodians receive regular reminders of their document preservation duties. When appropriate, we engage outside vendors to assist in the preservation and collection process, and we work with experts to secure “forensic” and “forensically sound” images.
Once the data are preserved and collected, we have the experience and knowledge to determine what needs to be processed and in what order of priority. When appropriate, we employ technological tools to pre-cull data before it is processed, thereby saving significant processing and review costs. In the majority of matters, our technology professionals are able to process data in-house. For larger and more data-intensive matters, we have established relationships with outside vendors who provide top-quality processing services at highly competitive rates, which we pass through to our clients.
No-Charge Data Hosting and 24/7 Access
Whether reviewing data to be produced or receiving data from an adversary, that data has to be stored and hosted somewhere. This is true both at the initial eDiscovery stages and then through the months or years that follow until the litigation is resolved.
Foley has the capacity to store data in-house in highly secure environments, at no additional cost to our clients. We provide our clients with unlimited remote access to these documents, and we provide our clients with access to Relativity’s analytical tools and search functions — again, at no additional cost. Thus, clients have 24/7 access to the documents in their matters, and they can access those documents as often as they want without incurring additional costs.
Our eDiscovery attorneys are experienced in persuading adversaries, courts, and government agencies to place reasonable limits on the scope of eDiscovery, and to allow our clients to take advantage of cost-effective eDiscovery solutions. By the same token, we take advantage of these technologies when we receive data from our adversaries, to provide a less expensive, smarter, and more streamlined review of our adversaries’ documents.
Foley is at the forefront of predictive coding — a process whereby subject-matter experts review a representative sample of documents and then “train” a computer system to apply what is learned from the sample to a much larger population of data. When done properly by trained experts, predictive coding provides a very high degree of precision and accuracy, dramatically decreases the volume of data to be reviewed, and allows us to prioritize the review. Predictive coding is defensible, courts are accepting it, and Foley is leveraging this technology to control eDiscovery costs while providing high-quality, defensible reviews. We offer this predictive coding solution — known as Relativity Assisted Review — at no additional cost to clients.
Our eDiscovery attorneys and technology professionals also regularly employ other forms of technology-assisted review, such as email threading, smart deduplication, clustering, categorization, and keyword searching, to name a few. We are constantly testing new technologies so we can continue providing our clients with the most advanced solutions to eDiscovery challenges.
Reviewing, Evaluating, and Producing
Technology-assisted review may not be appropriate in every engagement. And even when technology-assisted review is used, there remains a set of documents (albeit substantially reduced) to be reviewed. Document review involves more than mindlessly clicking through thousands of pages. When done properly, document review is a powerful tool for evaluating the merits of a case. Document reviewers are asked to flag key documents, tag relevant issues, and otherwise identify the foundational pieces of each case. For this reason, it is critically important that the document reviewers be properly trained, directed, and supervised throughout the review process.
At Foley, we do not outsource the critical functions of training, directing, and supervising the document reviewers. Rather, our trial team is directly involved in training, directing, and supervising the reviewers. Integrating the trial team in the document review process allows us to identify key documents, analyze important issues, and assess the merits of a case early in the litigation process. It also allows us to truly understand what is being produced before it goes out the door and to counsel clients accordingly.
In larger cases, Foley can leverage its relationships with outside vendors to provide high-quality contract reviewers at highly competitive rates. Even when contract reviewers are involved, Foley’s trial team plays a direct role in training, directing, and supervising the reviewers. In appropriate cases, Foley places members of the trial team onsite with the contract reviewers to help ensure quality, consistency, and speed.
In addition, Foley conducts robust quality control procedures. While every case is different, quality control procedures generally are intended to protect privilege and confidentiality, avoid inadvertent productions, verify proper issue tagging, and otherwise ensure a high-quality production.
Managing Outside Vendors
Foley has strong relationships with eDiscovery vendors of all shapes and sizes across the country and even around the world. These relationships include vendors specializing in imaging, collecting, pre-culling, processing, advanced analytics, contract reviews, and computer forensics. We leverage these relationships to provide our clients with high-quality and consistent results at highly competitive rates. We understand some clients have preferred eDiscovery vendors, and we have the flexibility to work with those vendors, as well. In either case, we take our client’s obligations to courts, adversaries, and government agencies very seriously. Consequently, we closely direct, monitor, and supervise outside vendors to ensure that our client’s legal obligations are satisfied, and to ensure that projects are completed on time, within budget, and with the highest level of quality.
Litigating Your Case
Ultimately, cutting-edge eDiscovery technology is no substitute for experienced trial lawyers. Whether deposing a CIO, arguing an eDiscovery motion before a judge, or trying a case to a jury, our eDiscovery attorneys have real-life courtroom experience that is an indispensable part of any successful litigation engagement. We know how to litigate, and we know how to try cases.
Every step we take in the eDiscovery process is with a view toward the larger litigation engagement. Because we know that eDiscovery begins and ends in the courtroom, our trial lawyers employ the latest technology solutions to translate a database of thousands or even millions of documents into a coherent and dynamic package of exhibits for a persuasive courtroom presentation. We leverage our eDiscovery capabilities and technological savvy to guide our clients effectively and efficiently throughout each stage of the litigation process.