Gabriela Baron, Esq. is Senior Vice President at Xerox Litigation Services. Xerox Litigation Services offers a range of eDiscovery solutions including software, services and consulting increasingly (as we will see below) to corporate clients. Its software includes the Viewpoint Software, OmniX hosted review, and CategoriX technology assisted review. Between them, these solutions offer behind the firewall or external options; they can be managed directly by the client, by Xerox Litigation Services, or by a mixture depending on the size of the case and the resources the client has available for the project.

Gabriela Baron has been involved in eDiscovery for a long time and is one of the contributors to the informative blog which Xerox Litigation Services uses to encourage good practice and thought leadership about the most effective ways to achieve eDiscovery objectives. I had the opportunity to speak to Gabriela recently, and what follows is a series of questions from me and her answers.

Chris Dale

Anecdotally, control of the eDiscovery process is increasingly passing away from law firms and into the hands of the corporate clients’ legal departments. Is this consistent with your experience?

Gabriela Baron

The market has changed and is continuing to evolve. I have been involved in eDiscovery since January 2004. In those days, I spent about 95% of my time speaking to law firms because they were the ones making the eDiscovery decisions; they were expected to handle discovery as well as the underlying legal issues. I now spend about 5% of my time speaking with law firms.

By late 2005, the larger clients were reconsidering their approach and looking at different ways to manage discovery. Their first step was hiring suitably skilled staff – hitherto they had had no internal expertise and no-one capable of vetting providers and their technical capabilities. Some law firms were better than others at doing this for their clients, and a few firms distinguished themselves by being very good at identifying people with technology backgrounds and moving them up into the discovery “lit support” arena.

Large corporations tend to use many different law firms – sometimes hundreds of law firms — that tend to be chosen for their specialized subject matter expertise rather than their eDiscovery knowledge or sophistication. Companies came to realise that they did not know where their data was or how secure it was, and often did not know who was holding the data and how financially sound the companies controlling the data were. Corporations slowly realized that in order to bring some uniformity to the security protcols applied to their data, they would need to vet the eDiscovery providers internally and enforce certain requirements of any third parties handling or hosting corporate data.

Chris Dale

Where did these companies find the skilled staff?

Gabriela Baron

They looked for people who had technical skills and who had interfaced with legal departments; they hired them from the outside or promoted them from within and, with their help, developed more internal involvement in the eDiscovery process. They were still not driving the process internally, however, – the lawyers were still the decision makers.

Chris Dale

What factors increased the move towards greater corporate control?

Gabriela Baron

Apart from the need to make sure that third parties’ handling or hosting corporate data were ensuring the confidentiality and security of that data, and providing for redundant access to the data, one of the obvious drivers was the cost savings which could the achieved by, for example, aggregating tasks in the hands of a single provider or, in due course, by actually doing some of the work themselves, especially those corporations with robust regulatory frameworks. Some companies, however, and particularly those facing regular investigations, began to wonder if it was prudent to have outside counsel themselves doing the filtering or have the filtering done by a third party that had not been vetted at the corporate level. Today, corporate clients frequently request that Xerox directly support regulators in their review or create repository sites containing only produced data for adverse parties or regulators to access directly.

Chris Dale

 Technology-assisted review is gaining ground both in the courts and at clients who value its ability to limit the volumes which have to be reviewed. One of the objections one hears from lawyers (though less so from end clients) is that it is a “black box” and that they are unwilling to delegate decision-making to it. What do you say to this?

Gabriela Baron

One of the problems is that people apply the label “technology-assisted review” to a whole range of tools; those who use the “black box” expression seem to think that “the machine” somehow tells you that these are the documents you want to look at, without realising the amount of human knowledge, skill and thoughtfulness that goes into the process.

The need for that human input varies between systems, not just because some are better than others, but because different systems are designed to work differently. Some are more of a “black box” than others and I have had occasions where a client specifically wants a “black box” type product for a particular matter.

CategoriX is one of Xerox Litigation Services’ TAR products and it is the opposite of a black box. It is used as part of consultative process where decisions, and the narrative as to how decisions are being made, are logged. These decisions are made by humans not by “the machine.”

Sometimes this is not what clients want– they don’t want to be involved in the decision-making, and prefer the idea of an algorithm doing it, solo, without human direction. So, there are different approaches and different tools that allow more or less human involvement – which clients use depends on the the specific use case for the matter and objectives. For instance, if you are appearing before Judge Peck, you will probably want to show how you got from Point A to Point Z and how any data scoping decisions were made.

In addition to CategoriX, which is already widely used by clients, we will be announcing our new proprietary TAR module integrated into OmniX in July. This is a “do it yourself” tool but its use can also be supported by our consultants, for those clients that want more human decision-making in the process. There are some exciting market differentiators in this release, and I can talk more about it once it is officially available to the market.

Chris Dale

There are many uses for TAR apart from using it as the primary means of determining relevance. Can you give some example?

Gabriela Baron

There are many use cases apart from using TAR to find your client’s potentially responsive documents. It can be run alongside human review, for example, as a quality control mechanism and it can be applied to incoming productions from other parties. It can often be used at the stage prior to formal discovery, when the client and legal team want to know very quickly what the potential scope is of discovery, what the key themes, issues and documents are likely to be and perhaps where the merits lie. Even if the actual discovery is reached by other means, this quick investigation is critical to early decision-making.

Chris Dale

Changing the subject completely, Xerox Litigation Services has just announced the addition of document review capabilities in its facility in India. The existence of such capabilities is not itself news, but it is an important step for Xerox Litigation Services and its clients. Can you explain why?

Gabriela Baron

The expansion of our document review services in India is notable rather than newsworthy. It stems from the fact that more of our clients are interested in a managed services approach to eDiscovery, not just for managing large volumes but to perform niche services such as handling foreign language data. Our expansion in India gives us the potential to offer that managed services solution to more clients, and is part of our growing reach into new geographic markets as well as increasing our ability to offer a wider range of services to existing clients in our existing markets. It also allows us to match clients’ ‘follow the sun’ workflow for various matters by offering 24/7 review. The price point is an important factor for our clients, but it is by no means the only advantage which our new India facility offers.

Chris Dale

Thank you for all that. Perhaps we should speak again in a few months when the new technology is rolled out, when the India facility has been in operation for a bit and when you can say more about the new geographic markets which Xerox Litigation Services is moving into.