The First Stop for IP E-Discovery

DISH’s Mike Burg partnered with iDS’s Dan Regard to build a document repository that allows the legal department to be more consistent across matters and leverage previous decisions on repetitive documents.​

CCBJ: Mike, please describe some of the issues that have been on your radar since you joined DISH. 

Mike Burg: I’ve been managing e-discovery at DISH just about five years. Currently, we’re focused on becoming more efficient and leveraging technology to improve our results and reduce our costs. Many of the documents that are relevant to our IP litigation are repetitive across matters or deal with the same products or components. We found ourselves going to the engineers over and over again for the same types of documents. Not only does that disrupt their jobs and take time out of what they’re trying to do but it has the potential to produce inconsistent results in either collection or production. In addition, each matter was stored in its own review database, so we were storing the same documents in multiple places and paying for the processing, coding and hosting of those documents more than once.

To address this, we’ve been working with iDS on creating a repository for documents related to our IP litigation. We want to become more consistent across our matters in our treatment of these documents. The repository provides us with true single-instance hosting. It gives us a resource to check before we go to people to ask if we collected a document already. It allows us to respond to discovery requests more quickly because we can leverage the coding that’s already been done. That’s really where iDS has come through for us.

Dan, tell us a little bit about iDS.  

Dan Regard: iDS is a professional services consulting firm. We specialize in e-discovery, digital forensics, document review, incident response and data analytics. We provide expert testimony in all of these areas, plus general computer science, mathematics and statistics. Recently, Chambers and Partners chose us as the number-one provider for e-discovery consulting nationwide. That peer acknowledgement is a great honor and a great way to kick off our 10-year anniversary.

One of the reasons Mike called us is because he and I have a really long relationship, but another is because we were able to give him the solution he wanted since iDS’s approach to e-discovery is very different from many other companies. We provide the base level services of document acquisition, transformation, document management and hosting, but that is not our end game. To us, those platforms facilitate our advisory services. That means on a project like this we can get much more creative when working with Mike to minimize the infrastructure costs and platform cost because that’s not our primary value proposition.

How is iDS helping DISH?  

Regard: When DISH came to us, this was exactly the type of custom solution that appeals to our engineers and our thinkers and our experts. We helped design a dedicated document repository to aggregate DISH’s product information. Along the way, we’re migrating coding decisions related to privilege and production, as well as information related to contractual obligations on whether or not these are subject to various NDAs.

What type of contractual obligations are involved?

Regard: IP litigation deals with intellectual property. In our experience, companies that purchase, license and share intellectual property typically have NDAs or other agreements that control the distribution and possession of these technical documents. Later, even though these documents may be requested in litigation, there may be obligations to notify the original source of those documents. These are the types of contractual obligations I’m talking about. All this is brought into consideration in building the consolidated platform to really help DISH get the efficiencies and cost savings Mike described.

How did your iDS team work with Mike and the folks at DISH?

Regard: Working with them as well as their outside counsel, we developed the plan to house their documents and tracked the various cases where they’ve produced prior decisions on privilege and the requirements for notification. We’re now consolidating these previously isolated collections into one master set.

On a go-forward basis, the repository will be the first point of contact for IP litigation documents. In the event DISH has new documents, those would be collected and consolidated in the repository and then be available not only for the immediate litigation but any future needs.

Mike, have you seen any impact of this yet?

Burg: We’re still building the repository, but our expectations are that we’ll be able to assign documents to one or more matters and pay for hosting documents that are related to active matters but get lower rates for documents that are not assigned to currently active matters. And we’re able to leverage the coding done on those previous documents, including the obligations Dan mentioned.  

What’s next for the repository?

Regard: We’re completing the consolidation step. The engineering has been completed. Documents have been loaded. Prior case work has been loaded, but there’s more to consolidate. That process is ongoing. Beyond that we are working on a plan to make the functions of the repository as automated as possible where appropriate. One of the things we want to automate is executing resolving notifications for IP. When the entire repository workflow is finished, the legal team should expect it to significantly drop their response time, improve their discovery response quality, and facilitate their contractual obligations via this automated process instead of the historically manually-intensive process.

It’s also my hope that the repository becomes a business resource for the company, not just a litigation resource. Since the integrity of the information’s maintained, it can serve as a read-only resource for any research related to technical specifications for equipment under license. Instead of adapting a business system to accommodate a legal function, we have the unique opportunity to convert a legal system to accommodate a business function.

Burg: This is a pretty exciting opportunity for us to really drive and create some business value.

Do you envision trying to take any other information that the company’s storing and replicate the repository?

Burg: We’re looking at other kinds of matters in which we might have repetitive documents. One that comes to mind is government requests because they often revolve around similar types of questions, especially in relation to merger and acquisition activity in the industry. To the extent that we can identify other opportunities to leverage this type of tool, we’ll certainly look into it.

Regard: To me, one of the challenges in this project for Mike has been getting other stakeholders engaged and getting the approval to take a departure from what has been a traditional, albeit not as cost-effective, methodology.

Burg: That’s true. Lawyers are stereotypically resistant to change, so I expected that the proposal would be a little bit of a sell. But at DISH, the idea of “adventure” – not being afraid to try new things – is part of the culture. Can we do things differently? Can we do things better? Bringing that business mind-set into the legal department has been a useful exercise.

Regard: The investment has been resources and patience as much as actual dollars. When companies like DISH pave the way for something new, other organizations can realize those cost savings too. That’s really breaking new ground.

Dan Regard, the CEO and co-founder of iDiscovery Solutions (iDS), has over 25 years’ experience advising on such issues as electronic discovery, computer forensics, data analytics and information management. He is responsible for the development and implementation of case and matter strategies that leverage technology in litigation and investigations. Reach him at [email protected].

Mike Burg is senior corporate counsel at DISH Network L.L.C., where has overhauled the company’s data preservation and collection processes, built a team that has internalized many formerly-outsourced activities, and revamped DISH’s policies and processes regarding information governance and data retention. The views and opinions expressed here are his own. Reach him at [email protected].

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