Enhanced process paves the way for more fluid and efficient vetting
Thom Siblo is a team lead at Inventus, where he has been managing crucial e-discovery projects for key client companies for seven years. We sat down to talk to him about early case assessment, but we’d noticed that he’s also been blogging about late case assessment, a bit of jargon we weren’t familiar with, so we asked him about that as well. By the end of our conversation, we wondered whether he should trademark the term. The interview has been edited for length and style.
How has the meaning of “early case assessment” morphed over the last 10 years or so?
Thom Siblo: It seems like back in the day, especially before ESI, electronically stored information – so, pre-email – early case assessment was closer to what we would think of now as risk assessment. Law firms would physically take a storyboard, or something akin to a storyboard, and lay out the players, the custodians, who has the deepest pockets and who has the most to lose. I think early case assessment used to be closer to risk analysis.
And then, as we moved from paper into the electronic discovery phase, which is obviously where the industry is now, early case assessment became more the act of looking at the data before you start the formal discovery. Maybe the goal is still to try to assess your risk, in some capacity, but it’s also to try to get a 360-degree view of your risk. So if discovery does start, clients want to know, “How many documents do we have to review? What does staffing to review those documents look like for us? How much does that cost us?” In some ways it can be similar, but I think the scope of the early case assessment has widened. It’s more than just the players. It’s “How much does it cost for us to review these documents, and what’s in them? What are our chances, once they start?”
What’s the value of the process today?
Siblo: I think the value of the process is that, due to email, which is so voluminous (and much more so than memos from, say, 20 years ago), what early case assessment does now is sift through a lot of data quickly. Does it mean that early case assessment is going to find you the needle in the haystack? The smoking gun? More likely than not, no. It’s best to give a broad picture of a narrow scope.
You talk about late case assessment. What is that?
Siblo: It is not a generally used term. It’s a term that I use. If we were talking about the early case assessment days, typically it was a program outside of your review platform. Your review platform is where attorneys get in, and they review the documents and they apply coding to help them find responsive documents or privileged documents going forward.
I think early case assessment used to be: You’re litigating and you’re looking at data a single time, and you see the chances and your risk and you move forward. You either settle or you move forward with reviewing those documents.
Late case assessment, I think of that as applying the most to regulatory matters. We have many corporate clients who are constantly getting subpoenaed by the FCC, the DOJ, FINRA, all the good acronyms. And the regulators have many requests. It’s a moving target. Things are shifting all the time. So now companies like mine have worked in early case assessment right within kCura’s Relativity software, right within the tool. So when you get your second requests, your third requests – or it may be your adversary in litigation comes to you with new information – you can do a late case assessment. You can go back, and you can look at the data in a vault within your space, and sort of reassess. See what you’ve already reviewed, and see what else maybe you haven’t reviewed, and you can move forward from there.
Do you think a lot of companies are doing it, even if they’re not using the term “late case assessment”?
Siblo: Yeah, for sure. This is a term that I think I used in a blog I wrote, sort of freewheelingly. I think most people are doing this without ever using that phrase, unless the phrase has caught on from my blog posts, which would be cool. It’s basically just the art of being able to go back to the broadest set of data to kind of reassess what you have.
What are the ways that general counsel should be thinking about both early and late case assessment that maybe they haven’t focused on yet?
Siblo: We’re emailing more than ever, right? We’re texting more than ever. We’re doing everything electronically. I think that for a lot of the bigger cases, especially, having all the data in one place, and then kind of culling it down from there, can be very advantageous. It prevents future delays, whether that be collecting data, or trying to figure out if you have a lot of data. I think that getting a 360 as early as you can, but also having access to that data, are the two important points here.
We have something called M3, which is where you can do your, quote, “early case assessment,” or any sort of case assessment in a vault, and then you can push that data down to many workspaces. You could even transfer some of the privileged calls from workspace to workspace. Because privilege is privilege is privilege, and those kinds of calls can be transferred from database to database, and general counsel would see a lot of savings by not having to re-review documents for privilege.
How does all of this figure into your company’s business?
Siblo: Inventus’ proprietary workflow is a form of case assessment in the broadest sense of the term. How that works, to kind of get into the nitty-gritty, is you have Company X, and we process all of their data. That means we’re taking their raw email files, their Outlook files, we’re putting it through our processing engine, and that extracts the metadata. Who is on the “to” field, the “from” field, the subject, the text of the document, so you can search it. And then we load it into our database, but we do not load the native file. We use Relativity. By not loading the native file, our clients see an incredible cost savings and still have full access to searching the text of the documents, searching the “to” and “from” fields and the metadata of the documents, without having to pay for the hosting of the native file.
Now, from that point, we work with them to choose what will be their review universe. And then we load the natives for those, and they review those. Just to put a fine point on this, we mention the natives because Relativity, which is the program that we use to load documents, needs the native for you to see it the way it’s supposed to be seen. Basically, we’re taking the information and we’re letting the client have it, the nuts and bolts of the information, and hosting it for a reduced amount. They can have full access to it at any point, and then really, they’re only paying for the hosting of the data that they’re physically reviewing and will likely produce to a regulatory agency or the other side in a litigation.
What’s your specific role in all this?
Siblo: I’m a team lead and a project manager. My role would be to consult with the client on the workflow itself. The client can have direct access to data in the vault, and they can do the search and review. But, typically, we assist in the review, or do the searching ourselves, coming up with parameters with the clients. We try to get a sense of who the custodians are, ask them for search terms and any important date range. And then, after we’ve worked with them, we come up with good criteria. I assist them in promoting those documents and setting them up to review them.
How important is it that you are a lawyer? And are all of your project managers lawyers?
Siblo: Most people here are lawyers. Not all of them. I would say 90 percent are, and maybe 10 percent tend to come from IT backgrounds. We do find that having attorneys be project managers is very helpful. Our clients are associates and partners at law firms, and they obviously appreciate our eye for detail, and the ability to seamlessly use legal language and understand the stakes.
That said, I think that this job appeals to a lot of lawyers who are pretty good with tech. So we do have a smaller segment of people who are very, very strong communicators, like attorneys are, but are coming at it from a technical background.
What’s your elevator speech to a general counsel?
Siblo: I think the future of e-discovery – and this obviously ties into both M3, which is our vault workflow, as well as inVerito, which is our early case assessment workflow – is that more and more of what companies are trying to do is sign master service agreements, where we become the vendor for the company. And we’re processing, if not all of their data, large segments of it. We’re also hosting it in a vault, so that we are able to host many matters and workspaces and show significant cost savings by sharing the coding, or by sharing the work product that the lawyers create from workspace to workspace.