Falcon Discovery, the leader in managed in-house legal and technology services, today announced that Clearwell, now a part of Symantec, has formally designated Falcon as the second certified Symantec Clearwell Managed Service Provider (“MSP”) globally. This selection underscores Falcon’s deep experience managing Symantec’s Clearwell eDiscovery Platform for corporate legal departments, as part of Falcon’s visionary in-house managed services program, InsideOut™.

Falcon was approved as a Certified MSP after passing a rigorous certification process that included an audit of key quality control and security measures, to ensure adequate safeguards for Clearwell clients.  Though just recently approved as a Certified MSP, Falcon has installed and managed Clearwell as an in-house solution for Fortune 500 clients since 2007.  In particular, among other clients, Falcon manages Symantec’s Clearwell eDiscovery Platform in-house for a corporate client that has been recognized as Corporate Law Department of the Year and Top 10 Most Innovative Law Departments.

Over the years, Falcon has developed proprietary work flows and processes to optimize the use, management and return on investment in the Clearwell product for its enterprise clients.  This includes development of technical processes related to the indexing, management and production of data using Clearwell in over 150 cases, as well as work by Falcon’s attorney teams in using the solution to perform search term testing and validation, early case analysis and large volume document review for high-profile internal investigations, M&A, large-scale litigation and regulatory inquiries.

A recent client case study underscores the immense value that Symantec’s Clearwell eDiscovery Platform and Falcon’s InsideOut program deliver for corporate legal departments.  Falcon recently completed a four-year cost analysis for a client, to assess the return on investment in an enterprise license of Clearwell.  Over that period Falcon’s client realized a 400%+ rate of return on the Clearwell investment when compared to traditional outsourcing of eDiscovery to law firms and processing/hosting providers.

“We value Falcon as a strong and knowledgeable partner, and we are excited to have them as the second Symantec Clearwell MSP certified partner,” said Steve Rapp, director of distribution channel sales at Symantec.  “We are pleased that Falcon will continue to supply their customers with the best managed services technology in the business.”

Falcon’s approval as a Symantec Clearwell MSP further validates the unique managed services solution that Falcon established in 2007, including Falcon’s unique ability to:

• Optimize a client’s return on investment in a Clearwell enterprise license, by designing and managing an efficient, repeatable and defensible workflow using Symantec’s Clearwell eDiscovery Platform

• Help clients avoid the time and fixed costs associated with hiring full-time employees to manage Symantec’s Clearwell eDiscovery Platform in-house

•  Provide clients with scalability to meet fluctuating litigation and discovery demands, which includes seasoned attorney teams proficient in using the Clearwell solution for document analysis and review

• Give clients far greater visibility, cost predictability and control when compared to traditional outsourcing with law firms and processing/hosting providers

“For any company routinely involved in litigation, a Clearwell enterprise license will significantly cut discovery and outside legal costs, and eliminate inefficiencies and security and operational risks,” said Donald McLaughlin, CEO and founder of Falcon Discovery. “Falcon’s InsideOut™ model optimizes a client’s Clearwell license because Falcon’s technology and attorney teams provide a fully integrated, end-to-end discovery service that yields significant costs savings and risk mitigation over traditional outsourcing.  We are proud to be named the second Symantec Clearwell Managed Services Provider worldwide, and we look forward to serving an ever-growing list of Symantec’s Clearwell customers around the globe.”

Da Silva Moore v. Publicis Groupe, et al.,
11-CV-01279 (S.D.N.Y February 24, 2012)
Technology assisted document review: a great example of judicial involvement in e-discovery.

A normally routine discovery status conference is creating significant waves in the legal community. United States Magistrate Judge Andrew Peck of the U.S. District Court, Southern District of New York, recently presided over a discovery status conference in Da Silva Moore v. Publicis Groupe, et al., regarding the parties’ use of technology assisted review and other discovery issues. Judge Peck took the unusual step of making a record of the conference and issuing a written opinion.

There is probably no case status conference which has created so much interest, let alone taken up so much blog space. It was initially reported that Judge Peck ordered the parties to use technology assisted review software as part of their discovery process. However, the transcript and opinion indicate that the parties had agreed prior to the conference to use Recommind’s technology assisted review tool, Axcelerate Predictive Analytics. In fact, the parties had created a joint protocol to be used in applying the technology assisted review software. While the parties agreed on using the technology, they disagreed on certain aspects of the approach and methodology, such as how many iterations would be used to train the system, document collections to be reviewed and what, if any, searches would be used prior to implementing technology assisted review.

The transcript of the status conference provides a great example of judicial involvement in solving technical issues involved with e-discovery. For example, a representative of Recommind took the stand to explain in detail the iterative process used by Recommind’s Axcelerate Predictive Analytics. Judge Peck was deeply involved in the discussions with Recommind’s representative regarding the iterative process of training the software.

As promised during the status conference, Judge Peck subsequently issued a written opinion on February 24, 2012. Not only does the opinion address the disputed issues, certain aspects of the opinion clearly address a broader e-discovery audience. Judge Peck gives an explanation of computer-assisted review by incorporating his article Search Forward (L. Tech News, Oct. 2011). Judge Peck also provided his opinion on computer-assisted coding in the context of Daubert (1). He argues that Daubert “would not apply to the results of using predictive coding…” Judge Peck suggested the best approach to using computer-assisted coding tools would be to:

• follow the Sedona Cooperation Proclamation model and seek agreement from opposing parties; or
• seek the court’s involvement prior to initiating a computer-assisted review.

Judge Peck’s opinion and the transcript are good examples of how parties and the courts can deal more effectively with e-discovery disputes generally and specifically, as they relate to formulating an e-discovery protocol. The most important take away of the Judge’s opinion is the extensive technical detail which needs to be discussed and understood prior to finalizing a protocol using a technology assisted review software tool.

(1) Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

Download a PDF version of the opinion and transcript below:

Da Silva Moore-2-24-12-opinion

Da Silva Moore v Publicis Groupe Order 20120208 Transcript

Now that Falcon Discovery’s team has caught up on some sleep, digested those street pretzels, and finally gotten that conference theme song out of their heads, they’ve compiled a list of key highlights from the LegalTech 2012 conference in New York.

From January 30th through February 2nd, Falcon Discovery worked arduously to sift through all the vendor announcements and educational sessions to uncover and distill key emerging trends in eDiscovery and information governance. Several key trends were identified during Falcon’s video interviews with thought leaders and legal technology award winners (available on Falcon’s blog), and in its participation and attendance at several panels during the conference. Set out below are a few of Falcon’s highlights from the conference. For Falcon’s complete summary of emerging trends identified at LegalTech, sign up for Falcon’s newsletter here.

• Man v. Machine debate. During a well-attended and lively panel moderated by Symantec’s Dean Gonsowski, Ralph Losey delivered the wake-up call: “don’t live in denial” about an emerging recognition that the human review process should not be considered the “gold” standard. Maura Grossman underscored the point by reiterating that the accuracy of attorney eyes-on-review is far from 100%. Honorable Judge Peck urged audience members not to wait for a court ruling to bless technology assisted review, stating that as long as a party can explain its methodology, the use of advanced technology to reduce litigation costs is a smart move.

• Hot Topics in E-Discovery: Point-Counterpoint discussion with Craig Ball and Ralph Losey. Few panel sessions were as talked about as this standing-room-only debate. This discussion, moderated by the Honorable Judge Peck, turned a little fiery when the topic case Pippins vs. KPMG came up. Mr. Losey asserted that there were three things wrong with the order: 1) it “dissed” proportionality in preservations, 2) it assumes everybody in a class action case is a key player, and 3) it called a non-forensic collection of a hard drive “spoliation.” Mr. Ball did not agree. He argued that to destroy evidence before they’ve certified the class is a shady practice, and to not capture parts of a hard drive (like slack space) that may contain relevant information to the case was imprudent. When the debate turned to the Federal Rules changes, the two were slightly more agreeable but could not agree that specific changes need to be adopted. Mr. Losey called for a clarification in the rules to keep justice affordable and the rules up to date with the ever-emerging technology. Mr. Ball argued that the rules were well-written and flexible as is.

• Harnessing Search Technology Effectively. As a panelist for this session, Falcon’s founder and CEO, Don McLaughlin, helped hammer home the message that predictive coding is not a silver bullet and that without proper human interaction, the latest and greatest technologies can be misleading and ineffective. The highly interactive session allowed audience members to gain a much better understanding about where search technology is most effective throughout the discovery life cycle, and how it is often misused when the specific limitations of the search technology are unknown.

Interviews, Interviews and more Interviews. With help from some of its trusted partners, Falcon Discovery interviewed industry leaders to find out what was on their minds during the conference. Falcon learned about vast improvements in the review/analysis process, in-house perspectives on the new Model Order for patent cases, and details about the latest cutting-edge legal technologies. Click here to view these videos.