Thought Leader Interview with Mandi Ross of Prism Litigation Technology, Part Two: eDiscovery Trends and Best Practices

I recently interviewed Mandi Ross, the founder and CEO of Prism Litigation Technology.  We covered so much with regard to eDiscovery trends that we couldn’t fit it all in a single blog post.  Part One of my interview was published Monday, here is part two.

Speaking of operationalizing proportionality, you’re also on the Steering Committee of the newly created George Washington Complex Litigation Center initiative to create a framework to operationalize proportionality.  So, what would you like our readers to know about this new initiative? 

Well, we’re really excited to have the opportunity to participate in this initiative. Proportionality obviously is a legal principle that we have a very keen interest in. It’s being led by the George Washington Complex Litigation Center, and currently there is volunteer participation from over 70 leading in-house and outside litigators from both sides of the V, along with various eDiscovery experts. This framework is supposed to be applicable to both MDL class action litigation, which is traditionally asymmetrical, as well as commercial B to B litigation. I’m pleased to be part of the Steering Committee, which has heavy judicial participation, as well as involvement from litigators, including the incoming Chair of the ABA Litigation section.

The working teams have been tasked with preparing guidelines that align to the framework that Prism developed in connection with our proportionality workflow.  The goal is to prepare a practical resource guide for both the bench and the bar to provide guidance and best practices on how to develop a framework to operationalize proportionality. Upon completion of the drafting, editing, and publication of these guidelines, there will be various Bench & Bar events, as well as continuing legal education opportunities that will follow the publication of these guidelines to encourage adoption and acceptance.

In 2020, you can’t have an interview without talking about the current COVID-19 pandemic, and certainly this has been the year of the COVID-19 pandemic. So, what challenges have you observed that the pandemic has created for your clients, and how has Prism helped your clients with those challenges? 

Well it really has changed the business climate overall, and from a standpoint of the implications in eDiscovery, there’s been a pretty significant swing. First and foremost, the fact that most people in the business sector are now working in disparate, remote work locations has created a myriad of issues in relation to eDiscovery. Having employees working in different physical locations makes data preservation and collection more challenging because we no longer have the ability to perform on-site collection within the corporate infrastructure.

There has also been an increase in the blending of business and personal devices from a standpoint of business communications and content creation, which also blurs the lines in relation to custody and control considerations. The use of phones, SMS, text, Teams, Slack, and social media applications is becoming more prevalent in the context of business communications.  In those particular data formats, it’s much more common for employees to be more casual in their style of communication. We saw that early on with the use of email, where people were somewhat careless in how they communicated. I think that’s improved over time, but with these new data sources that are now being used in the context of business, we’re seeing an emergence of casual, risky communication patterns. These data sources also create challenges in the way in which we actually collect, analyze, review, and produce this content, which is going to create another challenge in the context of eDiscovery.

The other thing that’s really becoming more widespread is cyber risk. Obviously, having employees working remotely increases that risk. And then, although we’ve seen constant messaging, probably since you and I got into the eDiscovery field around saving money and optimizing efficiency, we really haven’t seen a drastic swing in truly leveraging technology in the practice of law to reduce spend. I think that’s because in some instances, the eDiscovery current practices haven’t really aligned with this objective. In this current business climate, corporations will be actively seeking progressive, disruptive ideas that leverage technology and modified workflows to significantly reduce discovery costs. 

Prism has really been hyper-focused on trying to understand the shift in the business climate and ensuring that we have the proper tools and techniques to assist our corporate clients with this new world in which we’re operating.

With all that being said, what do you think the eDiscovery industry landscape looks like 12 months from now, in terms of the market and the trends people will be talking about? 

Well, as I mentioned a moment ago, I would really love to see the needle move in relation to the application of proportionality. It’s a very valuable tool that deserves its rightful place at the table as part of an attorney’s toolbox, if you will, to right-size discovery.

On-site collection technologies or processes will be replaced by remote index in place and collection technologies, which is something we’ve been tracking for some time. The data itself resides within the corporation, so the idea that our standard approach is to duplicate that data, perhaps numerous times, and move it outside of that corporate environment has always seemed disjointed. Now, with the improvements in technology that allow us to actually manage that data behind the corporate firewall to preserve, index, search, collect and export, we have the ability to access that data in a number of business use cases, not only for eDiscovery, but also around information governance, PII, and other remediation or disposition needs.

Technology is being introduced that will handle the increased use of the new data sources that I mentioned earlier such as cell phone content, social media, and various chat platforms rendering that information in a format that is much easier to analyze, understand and produce.

The challenge for corporations to manage the convergence of data existing in both the context of an employee’s business life, as well as their personal life on mobile devices will need to be addressed. There is emerging software that tackles this problem by providing a partitioned environment where the corporate content is controlled centrally by the corporation, while allowing the personal content to reside on the device.

The other trend that is going to continue and will likely increase, are remote legal proceedings, such as motions and depositions, that will be conducted via video conference rather than traveling to a location to conduct those events. The shortcomings of video conference technology such as Zoom or Teams in the context of these use cases will be replaced by more intuitive technology that manages the capture of testimony, along with the display and management of exhibits and demonstrative elements as part of those proceedings. Auto-transcription along with video to audio synchronization will provide practitioners and Judges with real-time access to the written record in a centralized location.

Lastly, we’ve seen a movement from brick and mortar attorney-review centers to those becoming virtual. Now that it has become an accepted practice, that’s likely to remain a standard process as we move forward.

We’re not done yet!  The third and final part of my interview with Mandi Ross will be published on Friday.

So, what do you think?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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