Thought Leader Interview with John Patzakis of X1: eDiscovery Trends

On the heels of the announcement a few weeks ago of the integration involving Relativity and X1® between the X1 Enterprise Platform and RelativityOne Collect, I sat down with John Patzakis, Co-Founder and Chief Legal Officer of X1, to discuss the announced integration and his thoughts about some of the most notable trends in eDiscovery today.

ICYMI, the press release for the announcement is here.  It was also covered here by Chris Dale in his excellent eDisclosure Information Project blog and here by Zach Warren in Legaltech® News.  And John wrote a blog post about the announced integration and rationale for it here on the X1 blog.

Why did X1 decide to partner with Relativity and what do you want our audience to know about the partnership and what it means to legal professionals?

The partnership decision was an easy one as it is a win-win for not just for X1 and Relativity, but our mutual end-users who benefit from a greatly streamlined eDiscovery workflow from identification through review and production. What I believe is particularly compelling is that not only does this integration enable automated remote collection with X1’s unique capabilities, but both companies also performed a lot of technical development work to automate the post-collection steps immediately after collection. So instead of cumbersome, time consuming and expensive processing steps that involve manual handoffs and other non-automated tasks, the data collected by X1 goes straight from the custodian into a Relativity workspace with processing happening all in the background on a completely automated basis. As a result of this major integration, the time from initial collection to when the data ends up in review is reduced from weeks to literally minutes, with a substantial reduction in the costs associated with the now displaced manual efforts. So overall it’s a major disruption of traditional workflows, which I think really benefits the broader legal community.

How do you feel the move toward remote work (which was accelerated during the pandemic) has impacted how organizations conduct discovery and what has X1’s role been in that transition to remote discovery?

The new normal of the remote workforce has greatly impacted ESI collection efforts. In a COVID-19 world, physical access to devices now impossible and perhaps even dangerous.  What remote employee would want a stranger to come to their home and take their laptop for hours? Mass collection of gigabytes of data over a wi-fi home network is also completely infeasible. So previously common collection methods are simply no longer an option. 

X1 has devoted a lot of effort to enabling efficient collections of remote custodians. With no physical access any devices needed, a small software agent is remotely installed on each device, which creates its own local index. Legal staff can then simply search this index for whatever ESI they need to collect. This distributed architecture facilitates pre-collection analysis and culling, where search terms are sampled on data in-place, before any ESI is collected. This dramatically optimizes the traditional forensic collection workflow, as analysis can be done from the very beginning of the preservation/collection process, allowing lawyers to gain insight far earlier in any proceeding and supporting a surgical collection process, leading to far lower data volumes for optimal data transfer (and also much lower eDiscovery costs).  And we put a lot of engineering effort to both optimize data transfers and ensure robust data security.

In the 2020 eDiscovery Case Law Report issued last week by eDiscovery Today and eDiscovery Assistant, proportionality was one of the top dispute areas for 2020, even more than sanctions.  What can organizations do to conduct eDiscovery more proportionally?

Proportionality is a very hot issue, and will continue to be so with all the important case law you mention, and the GW Law Proportionality model being developed and going live in a few weeks. I think lawyers are becoming well-versed in proportionality and the courts are showing a lot of favor toward the concept. But what is missing is the ability to operationalize proportionality through discovery workflows. When you’re engaging in data over-collection, which in turn runs up of a lot of human time and processing costs, the ship has largely sailed before you are able to perform early case assessments and data relevancy analysis because a lot of the discovery costs have already been incurred at that point. To realize proportionality, the process needs to be effectuated further upstream, so that you are, for example, running detail keyword searches and other analytics in place prior to collection. One of the exciting things about this X1 and Relativity integration is that our customers are able to leverage the X1 and Relativity platform to apply proportionality concepts in such a manner. The case law and the Federal Rules provide that the duty to preserve only applies to potentially relevant information, but unless you have the right technology and processes, you’re losing out on the ability to operationally attain the benefits of proportionality.

There’s a lot of discussion about challenges associated with remote collection these days and some of the challenges are associated with forensic collection.  What do you think that “forensically sound” collection entails and when do you think that bit-by-bit forensic collections is actually warranted?

Full disk images capture every bit and byte on a hard drive, including system and application files, deleted files, unallocated space, and a host of irrelevant user-created data. While full disk images are routine in law enforcement matters, the practice is disfavored by the courts for civil litigation, as the expense and burden associated with the practice can be quite extensive. Other than very sensitive internal investigations that potentially involve a crime or destruction of evidence, full disk imaging should not be utilized for collection efforts in civil litigation. The Sedona Conference said it best in recent guidance to the effect that civil litigation should not be approached as if information systems were crime scenes that justified routine forensic investigations that in turn resulted in expensive data over-collection.

Courts do require that ESI be collected in a forensically sound manner, which does not necessarily mean a full forensic disk image, but generally does entail that metadata is not altered and a documented chain of custody is maintained. More advanced enterprise class technology can accomplish remote searches across multitudes of custodians that are narrowly tailored to collect only potentially relevant information while preserving metadata and achieving overall defensibility at the same time. This process is better, faster and dramatically less expensive than manual disk imaging.

This is an important issue, as it relates to each of your first three questions. Full forensic disk images preclude; One — the automation and optimization that enables the X1 and Relativity integration; Two — the ability to perform remote collections over wi-fi home networks and; Three — the practice goes against the concepts of proportionality. Once your process begins with full disc imaging, it spawns a chain reaction of increased costs and inefficiency.

Thanks, John, for appearing on the eDiscovery Today Thought Leader Interview series!

So, what do you think?  Where do you get your legal technology news and trend information?  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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