The eDiscovery Impostor and How to Spot Them
“To err is human,” but in an industry as seemingly driven by precision as eDiscovery, errors are all too common. Yes, mistakes are going to happen. Which is why we can fall back on processes and procedures to ensure that even when those mistakes happen, there are controls in place to catch and correct them.
Technology can go a long way in helping with Quality Control, especially when you’re dealing with large document and data sets, which increase the chances of missing something. But technology is only as good as its users, and according to some in eDiscovery, you have to be on the lookout for impostors.
What is an eDiscovery impostor? It’s simply a vendor or service provider that doesn’t deliver up to the standard expected or demanded by the requirements of the industry and the law. If you find the pickles were left off of a hamburger after you pull out of the drive thru, sure, it’s frustrating, and depending on how much you love them, you may even turn the car around to get what you had coming. But in the legal space, meeting deadlines with accurately processed and produced evidence is literally the law, and there are very real consequences for not meeting expectations.
Sometimes it’s an issue with the technology itself. Tom O’Connor, director of the Gulf Coast Legal Technology Center and well-known industry thought-leader noted in an earlier article that errors loading data into many eDiscovery tools “Is still a mess. I (and people I work with) still get up to two-thirds of their load files with errors.” And then on the backend of that process, many solution-platforms lack reporting to help with QC. “This is absolutely crucial,” O’Connor stated. “And it’s astonishing to me how many programs don’t do it or do it in an incomplete manner.”
Service Provider Impostors
There are other types of eDiscovery impostors on the vendor and service provider side of things. Sal Llanera, who has over 25 years of experience in Forensic Technology, has held executive positions with Ernst & Young and other top accounting/consulting firms in New York supporting law firms in complex fraud and litigation assignments, and is the Founder and Principal of SL Data Management, shared some stories of his personal experiences with eDiscovery Impostors.
No QC on production deliverables: One time an e-Discovery outfit approached me through a friend and offered me $20/gig for processing. So I sent them some personal emails (gmail accessed via Outlook) as a PST for a processing test. About 30% came back as junk, most likely due to rendering issues. I asked them what happened, and they blamed my emails, then had the audacity to ask if I’d give them another chance.
People disappear when there are issues: With one particular vendor, we had some issues with the data over the weekend. No call back till a weekday. Come-on, we work with lawyers in a reactive environment. No weekend support? Subpar work-ethic. This situation actually hurt my business.
Did not process data: A few years ago, I asked a friend in the business to handle a processing job for me. I handed over the drive, and in return he bought me a cup of coffee. Great, right? Two weeks later, I found out he never processed the data. It was such a large dataset, he figured I wouldn’t notice. I no longer talk to him. And like the second example, this directly hurt my business.
How to Avoid eDiscovery Impostors
Like anything else where you need to check veracity, simply do your due diligence. Ask providers for references. And then ask those references questions like:
- How many projects they’ve done with them?
- Are they responsive to emails/communication 24/7?
- Are they problem solvers?
- Were there any other issues?
- Were they resolved quickly and professionally?
Even when you think you know someone, a little bit of research in the beginning can make a world of difference with the outcomes.