Editor: Please tell us the key themes from this year’s Department of Justice (DOJ) panels, including your own impressions as a technology expert and panel moderator for three straight years.
Kiersted: One consistent theme from previous panels concerns the need for parties to establish a good working relationship with the government, and the discussion covered some of the pitfalls of poor communication and the importance of developing a discovery strategy with transparency. More than in previous years, the 2013 panel emphasized the increased role of technology and how the government is making better and more consistent use of it.
What I found interesting was the discussion following an anecdote concerning one particular instance of using advanced technology. The story involved taking massive amounts of data, working through it in a logical way and applying tools and techniques to gain an understanding of the underlying issues. The immediate point was that technology substantially enabled this process. The broader point was that use of advanced technology has helped the government get ahead of the game, rather than constantly being in catch-up mode. So my overall impression is that the federal government is seeing tangible benefits as a result of greater adoption of advanced technology.
Editor: What do you think is the panel’s objective in conducting these panel discussions?
Kiersted: The panel’s goal is to communicate in a non-adversarial forum with general counsel and law firms about aspects of dealing with the government that the audience may not be aware of or that they might feel uncomfortable asking about directly. Taking the discussion out of the context of an adversarial situation makes it easier for the audience to hear and understand the government’s perspective.
The big picture focuses on strategies for gaining trust, including a discussion of different perspectives and common mistakes that lead to communication problems. Panelist Allison Stanton explained that the government’s central role in the public sector is to protect the rights of citizens, and they are passionate about doing their jobs and take that responsibility very seriously. Depending on the mission of the governmental entity, there are differences in process due to the different types of jobs being done. For example, the needs of a government investigation dictate a different process than when the government is involved in a fraud prosecution.
Editor: Has the federal government adopted advanced technology to the same extent as corporations and law firms?
Kiersted: For the first time this year, the panel sent a direct message that the government has a wide array of sophisticated tools and is embracing them more broadly than ever before. The message was: if a tool has been invented, then it exists somewhere in the federal government.
Having advanced tools levels the playing field in terms of sophistication vis-à-vis potential counterparties, though it also presents another complex element within an already complicated system of government departments handling large volumes of myriad types of matters. My overall impression is that the government did well to embrace advanced tools, which they are putting to good use.
Editor: The DOJ panelists from last year’s panel predicted that there would be more formal public notifications of discovery procedures. Has this prediction come to pass?
Kiersted: Last year’s panelists hinted at this very exciting development, and then it quickly came to pass. In February 2012, Deputy Attorney General James M. Cole released a Protocol for Discovery of Electronically Stored Information (ESI) In Federal Criminal Cases (the “Protocol”). The Protocol represents the first instance of codification in this particular realm, and it was a key topic for this year’s panel discussion. The Protocol consists of four parts and further outlines ten core principles that guide best practices.*
Importantly, the Protocol is a published, readable resource that can be studied. It serves as guidance for the government to work within an established framework and, for opposing parties, as a way to gain insight into the government’s process.
Editor: Has technology itself become ingrained with legal strategy?
Kiersted: Yes, in the sense that data is part of the process and, therefore, must be incorporated into the strategy. Certainly, risks and pitfalls are associated with not handling data effectively, and there are big advantages to handling data well. So from the very beginning of a matter, it becomes part of the legal strategy to utilize technology and be aware of how it can help and hurt you.
Editor: Are there common challenges faced by government and corporate parties? How can technology help, and what strategies are most effective?
Kiersted: One major challenge for all parties is the massive growth of data potentially associated with any given matter. Panelists reported that the government does not want to be flooded with data. It is not, for example, an adequate response to an Antitrust Division second request to turn over every document in the company’s email system and servers. Nobody wants that. It burdens and impedes the government’s ability to do their job and, of course, it’s not in the best interest of the corporation.
Technology can effectively reduce data volumes and set the stage for a manageable process that delivers targeted productions of relevant data. While there are numerous possible strategies, many people agree that the best approach is to employ technology during the very early stages. The process involves collecting the data in its native form and then running searches to select documents that are of interest and to remove documents that are not relevant or are privileged.
As an example of how technology can help, we developed Kiersted Direct to aid in this effort. Kiersted Direct is a tool that can provide this targeted capability and assist in facilitating communication among parties – a major theme from the panel discussions. The Kiersted Direct tool allows you to test search terms, review and discuss the results, see what works and then refine the process until everyone is confident that the search is sound. You may find that a certain term brings forward too much irrelevant material, for example, if that word happens to be included in a company’s standard email footer. Our tool quickly reveals these issues and allows you to change the filtering so that the search term will hit only in the bodies of documents, resulting in a powerful reduction of irrelevant documents with just a few clicks.
Naturally, it follows that once data volumes have been culled at early stages, the subsequent and costly human review process can be minimized. From the government’s perspective, this is a tried-and-true method of allowing all parties to get to the relevant material quickly and efficiently.
Editor: Does this process imply collaboration?
Kiersted: The government encourages transparency, which can be helpful to all parties. The government is well aware of advanced technologies that perform culling, and they want to be told upfront when an opposing party is using these tools. They don’t need to know what’s in your documents, but they do want to know what tools you’re using and what strategy is being applied to that technology. This way, the government can work with parties and influence the process toward a mutual goal of minimized data sets.
So there is some cooperation and varying degrees of enthusiasm on the subject of total transparency. The government’s message is that if a party can establish trust, then the process will be better for everybody.
Editor: Let’s talk about the review process. We understand that Kiersted has developed some proprietary enhancements to its Relativity platform around quality assessment and quality control.
Kiersted: Put simply, human review is costly, and quality control is critically important. Therefore, technology should be geared to enable efficiency with the work and also provide tools to assess if the job is being done well.
Kiersted has developed a customized suite of management features for its Relativity offering that allows for close monitoring of review teams and enforcement of quality control parameters. It can drill down to specific review rules, such as requiring reviewers to cite a reason when they tag a document as privileged. Having the ability to monitor rule compliance in real time is a huge benefit, and it avoids the trap of thinking all is well and then discovering coding inconsistencies when the deadline arrives.
Further, our proprietary analytical capabilities and metrics enable clients to understand how a project is progressing. They can assess individual reviewer performance, overall project progress and locate trouble spots, for example, where certain types of documents are taking far longer than expected. If tagging calls are being constantly overturned, then clients can assess if there is a misunderstanding about instructions and correct the problem early on. Kiersted True Review also allows for dynamic assessment of what resources are needed in order to make a deadline – a factor that may change as the project moves forward.
These capabilities are enormously useful in managing government investigations, for example, if you’re managing an M&A second request and a bet-the-company deal is riding on meeting deadlines. It just doesn’t do to guess in these situations; you have to have metrics.
Editor: It seems one broad takeaway from the DOJ panel discussions is the importance of collaboration, particularly as it pertains to the role of technology in government investigations and litigation. Please close our discussion with some thoughts about Kiersted Systems’ commitment to providing the right tools.
Kiersted: Technology will be a key factor going forward, and this year’s panel certainly did stress the importance of communication. We echo these sentiments at Kiersted Systems, which was founded on the basis of listening to the needs of our clients and the market – and really understanding their pain points – and then creating product solutions that address those needs, reduce costs and maximize quality and efficiency. Since 1984, we have not wavered from this strategy.
In fact, some of the features of Kiersted Direct were inspired by comments from last year’s DOJ panel, and to my knowledge, our new and powerful capabilities to conduct and refine searches, such as the email footer example cited above, are unique. We developed these features as a direct result of our commitment to dialogue, and in the case of customizing features to enhance Kiersted’s Relativity offering and our commitment to offer a great Relativity experience for our clients, we have earned the coveted "Best in Service" designation from kCura, the developers of Relativity. Our tagline, Radically Efficient, says it all and reflects that everything we do is based on our clients’ needs.
* For further information please visit http://www.fd.org/docs/litigation-support/final-esi-protocol.pdf or http://www.justice.gov/usao/eousa/foia_reading_room/usab6005.pdf.
Published February 20, 2013.
