Mary Mack: Key Technical Considerations For International E-Discovery In 2011

Monday, February 28, 2011 - 00:00

The Editor interviews Mary Mack, Enterprise Technology Counsel for ZyLAB.

Editor: You have recently returned from LegalTech, where Gonzalo de Cesare was a keynote speaker. What are some of the key takeaways from that session?

Mack: It was an extraordinary experience to hear Gonzalo de Cesare, who works with the UN team that just recently convicted a war criminal in Cambodia. Gonzalo was also a member of the UN team that handled the five-year trial of Slobodan Milosevic before UN International Criminal Tribunal for the former Yugoslavia (ICTY). As you know, Milosevic was charged with flagrant crimes against humanity. Gonzalo needed a system able to collect evidence in the field about the atrocities. It was not only in video, audio and electronic form, but also included massive numbers of paper documents that had to be scanned.

The evidence was in multiple languages, dialects, fonts and scripts. The collection, organization and search had to conform to international criminal standards, including applicable privacy laws. Those disclosure standards are still in use in ICTY. Versions of them are being used by the International Criminal Tribunal for Rwanda (UNICTR), the Extraordinary Chambers in the Courts of Cambodia (ECCC) for the Khmer Rouge trials, and the Special Court for Sierra Leone.

The ZyLAB eDiscovery System is the system selected in all these cases to overcome the challenges faced so that fair trials could take place.

Editor: Tell us about ZyLAB.

Mack: ZyLAB is an e-discovery and information management company that got its start in search in the early '80s and was among the early pioneers in the field. It excels in what is called "localization." This means that it can not only translate differing languages and scripts, but it understands expressions and their nuances so that the English language reader can gain an understanding of the thought being expressed.

With each language there is dialect, there are inflections, and the grammars are different. Sometimes the languages are read from right to left and sometimes they're down to up. ZyLAB's ability to cope with multiple languages attracted a number of governmental intelligence services to use its services. Although machine translation is not 100 percent accurate, it's very helpful in winnowing out responsive documents that need the attention of human translators. This is far better than having to translate 100 percent of them before you've even started a keyword search.

Editor: I understand that ZyLAB provides an excellent compliance tool. Take, for example, the UK Bribery Act, whose effectiveness has been postponed.

Mack : Becausethe Act will be applied on an extraterritorial basis to offenses by UK citizens or commercial corporations that have a business connection to the UK, this is a good time for companies within its ambit to consider whether they have (in the words of the law) "adequate procedures in place to prevent bribery."

One of ZyLAB's customized review platforms is the Compliance and Litigation Readiness System, which collects electronically stored information relevant to their clients' compliance efforts. Using that system, a company can review ESI that might reveal "hotspots" around the world that need to be addressed before the law becomes effective. We can detect the location of emails, tweets, photos and other ESI and display it on a map for targeting and prioritization of problem areas, problem areas detected by pattern or sentiment analysis and extraction.

When the UK Act becomes effective it can provide early warning of possible violations that need to be addressed. Given ZyLAB's ability to bridge the language gap, it enables global companies to detect violations in foreign locations where employees communicate in the local language. Obviously, this system is of great value with respect to monitoring compliance with legal requirements throughout the world, including the Foreign Corrupt Practices Act, export controls, antitrust, Sarbanes-Oxley etc. Although the FCPA does not provide the same degree of protection for "adequate procedures," the U.S. sentencing guidelines give credit for good faith compliance efforts.

Under the UK Act, it will be necessary for global companies with business connections to the UK to have technology to help them monitor ESI throughout the company, whether that is sampling key custodians, active keyword and concept searching or looking for patterns etc. This is something our software can do. What is amazing to me is that if a client wants to find a pattern of somebody giving something to someone, and you don't know who that somebody and someone are, our software can find situations that fit that pattern.

The EU is using our technology in their fraud investigations, so what we're doing in the United States is bringing that technology to our clients. I generally serve corporations and law firms, although ZyLAB has significant government business as well. I think it's important for our clients to have technology that is as, or more, sophisticated than that of organizations doing investigations. Your technology will help you to uncover problems first, which will enable you to fix the problem and permit your attorneys to defend you more effectively.

A search is only as valuable as the terms that are used or in the case of a concept search only as valuable as the manner in which it is expressed. ZyLAB has developed great expertise in framing searches so that the appropriate terms are selected or concepts expressed, whether in English or foreign languages. As I mentioned earlier, we try to localize the search. In English, for example, we look at the place in the world where the English used is spoken, and we don't just use the words "bribe" or "tip" but rather the words that might be used to express that thought in that location. Because some responsive communications might not use any of those words, we might search for concepts or patterns that suggest a violation. It might be communications that talked about the appropriateness or inappropriateness of the practice of transferring/giving something to an official or meeting with an official. With exploratory search, even if you don't know what words you're looking for, if you can articulate the concept, you can initiate a productive search.

Editor: Are there ways to get quick answers for the purposes of an early case assessment or to winnow out the names of employees who should be investigated in more detail?

Mack: ZyLAB is able to provide the kind of quick overview you mention. If, for example, you weren't sure who among several employees were involved in a fraud or some activity that might put the company at risk of violation of the FCPA or the UK Bribery Act, you could get a list of names, dates, addresses, companies or other entities that can be extracted. Because our indexing and searching is very comprehensive, you should get any information that might be available. All documents are searchable, including faxes or documents that are sideways or contain multiple languages on one page. Because the system includes a high-grade search engine, once you have searched you can be sure that you've searched everything.

This is unlike some of the early case assessment systems that just take a sample. It is particularly applicable in patent, antitrust, and various business-to-business litigations where it is very important to be complete. This approach is important given the heightened pleading standards in the Iqbal and Twombly cases. One of the trends I'm seeing is that companies need to move beyond mere quantitative early case assessment focused on the amount of e-discovery involved to a more precise assessment of the claims and defenses of the case so that they can be very crisp in their pleadings and can carefully plan their strategy.

Editor: Many foreign countries have restrictions on using personal information or even identities as a result of privacy concerns. How is that handled?

Mack: You can pull up a pattern of names, addresses or account numbers without knowing what they are and automatically apply bulk redactions to them so contract attorneys are not aware of who they are during the review phase. The redaction of personally identifiable information is a big cost component of reviews, and we're able to provide legal teams with transparent redaction so that they can quality control them and get a quick log of them.

In the UN's trials of Milosevic and Duch, the first Khmer Rouge leader to be convicted, redaction was a matter of life or death for the people who gave information. It was done very diligently.

Editor: Does ZyLAB accumulate patterns for companies to use in gathering information based upon the purpose for which the information is being gathered ?

Mack: We do. We have over 200 patterns that have been used successfully over the last 10 or 20 years that clients use as a starting point. They are customizable so that companies can alter the patterns out of the box to fit their particular needs.

Editor: Can ZyLAB monitor more recent sources of ESI?

Mack: Yes. We use what is called XML, which is a language of the web, so our clients search blogs, wikis, SharePoint and other web content just as easily as they do emails. We also search sound (voicemails, videos). Technology just keeps evolving, so companies like ours must also keep evolving. Johannes (Jan) Scholtes our Chairman and CSO, is a visionary who is able to apply technical innovations well ahead of when they are recognized.

Editor: Have there been any threats to keeping ESI available in searchable form for e-discovery?

Mack: Yes, the federal government failed to turn over documents in searchable form. This was challenged in an action brought by Mayer Brown, which donated its services. Judge Shira Scheindlin held that this was a violation of the Freedom of Information Act.

Editor: I understand that ZyLAB is making its e-discovery services available to pro bono organizations at no cost.

Mack: This is a major contribution to these organizations. If their law firm or corporate supporters are our clients, we are happy set up a system for them. In many cases, they do not have the resources to undertake e-discovery and as a result they are unable to process the evidence needed to correct injustices to the poor. This is another reason that I am proud to be associated with ZyLAB.

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