Editor’s Note: Industry eDiscovery expert and commentator Doug Austin, as part of his Thought Leader Series published on his eDiscoveryToday.com blog, recently interviewed Ashish Prasad, Vice President of HaystackID. Doug is an established eDiscovery thought leader with over 30 years of experience providing eDiscovery best practices, legal technology consulting, and technical project management services to numerous commercial and government clients. Doug has also published a daily blog since 2010. Provided below is the full text of his recent three-part interview with HaystackID’s Prasad as shared on the daily blog, eDiscoveryToday.
Thought Leader Interview with Ashish Prasad of HaystackID: eDiscovery Trends and Best Practices
I recently interviewed Ashish Prasad, Vice President and General Counsel for HaystackID, who is widely regarded as among the leading experts on discovery in the United States. We covered so much with regard to eDiscovery trends that we couldn’t fit it all in a single blog post. Part one of my interview was published Monday (June 8) part two was published Wednesday (June 10), and the third and final part was published on Friday (June 12).
One of the things I love most about this job is the ability to conduct interviews with key thought leaders in our industry and get their thoughts and observations regarding trends and best practices – then (of course) sharing them with you all. My latest interview was with a leading expert on eDiscovery who has been setting the standard for it since before it was even called “eDiscovery”!
As Vice President and General Counsel for HaystackID, Ashish Prasad is widely regarded as among the leading experts on discovery in the United States. He has served, among other things, as Litigation Partner, Founder, and Chair of the Mayer Brown LLP Electronic Discovery and Records Management Group, Executive Editor of The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production (2004), Co-Editor in Chief of the Practicing Law Institute treatise Electronic Discovery Deskbook: Law and Practice (2009), Adjunct Professor of Law at Northwestern University Law School, and Board Member and Executive Editor of the Distance Learning Program at the Electronic Discovery Institute.
Ashish has authored dozens of articles and given hundreds of continuing legal education seminars on topics of electronic discovery before judges, practicing lawyers, and industry groups in the United States, Europe, and Asia. Ashish is a graduate of the University of Chicago Law School, where he was a member of the Law Review, and the University of Michigan, where he graduated with High Honors and High Distinction.
Ashish, you founded the Electronic Discovery and Records Management Practice at Mayer Brown way back in 2003 when most law firms didn’t even know what “eDiscovery” was. What’s your observation on how the state of lawyer competence in eDiscovery has evolved over the years and where it stands today?
Lawyer competence has grown tremendously with respect to eDiscovery over the past 20 years that I have been focused on eDiscovery. There have been tremendous efforts to teach federal and state practitioners about the basics of eDiscovery, and what they need to do in order to manage eDiscovery appropriately for the benefit of their clients. Now, most of the litigators that I deal with, especially at the larger firms, understand the basics of eDiscovery, and have had eDiscovery projects in the past that have allowed them to become knowledgeable about best practices.
That being said, I think we have a long way left to go in terms of education of practitioners on eDiscovery. We still see a lot of practitioners not being as knowledgeable as they could be on the tools and processes available to achieve efficiencies and cost reductions for their clients. For example, we see less use of analytics and culling techniques than we had expected to see when these techniques became more prevalent about five years ago. We also see ineffective processes in the document review area that have been addressed by larger companies and larger law firms over the past five years.
OK, so we’ve talked about lawyer competence. How do you feel that the courts have evolved to understand technology, and do you think judges generally have the technical knowledge to actually rule on technology issues?
I have been impressed with how far the courts have come in terms of their technology understanding. The Federal Judicial Center and other organizations have been focused on judicial training on eDiscovery for many years, and that has had great effects. For example, The Federal Judges’ Guide to Discovery, which was published by the Electronic Discovery Institute and of which I am an Editor, covers all the basic aspects of eDiscovery that a federal or state judge would need to know. Since the federal eDiscovery rules’ amendments of 2006 and 2015, federal judges have been required to preside over the eDiscovery processes in their litigation matters, which has caused them to become pretty knowledgeable about the eDiscovery process.
Now, if you ask me whether they are, as a group, knowledgeable of all the ins and outs of technology with respect to eDiscovery, I would say that the answer to that question would be no. But I would also say that they do not need to know all the ins and outs of technology in order to preside over their cases. The parties and their counsel are obligated to teach the basics of the technology to the judges if and when that is required in specific matters, and in the vast majority of cases, a deep dive into the eDiscovery technology will not be required or desirable. What is required of the judges is enough technology knowledge to resolve the discovery dispute in front of them, and in my experience, the judges have that, and they use it productively and effectively in resolving disputes.
Since you noted that lawyers and courts both have some work to do, what would you recommend to both lawyers and judges to boost their competence in eDiscovery and their understanding of technology?
I would point lawyers and judges to a number of treatises that are excellent in this area. The first is the Electronic Discovery Deskbook published by the Practising Law Institute. The second is The Federal Judges’ Guide to Discovery that was published by the Electronic Discovery Institute. The third is The Sedona Principles published by The Sedona Conference®. These three treatises, taken together, give an excellent overview and deep dive into eDiscovery, which includes not just the legal process of eDiscovery, but also the business process and the technology process of eDiscovery. Each of these three processes of eDiscovery is very important.
The other step that I would recommend to lawyers and judges is that they review the resource sections of the websites of those law firms that have formalized eDiscovery practices, and the resource sections of the websites of the larger service providers in the eDiscovery industry. Those resource sections are very valuable, and they include case law updates, technology updates, and best practices updates. In terms of organizations that lawyers and judges can get involved with for eDiscovery education, especially for the corporate community, I would recommend the Electronic Discovery Institute (EDI). The EDI has in-person programs as well as online programs that are very valuable. Other organizations are also doing great work in this area, including The Sedona Conference and the Practising Law Institute.
You lead the corporate consulting practice at HaystackID. Putting aside challenges related to the COVID-19 pandemic for a moment (which are unique themselves), what do you think some of the biggest eDiscovery challenges have been for corporations in recent years?
Before the pandemic – and also after the pandemic – some of the biggest challenges facing corporations with respect to eDiscovery have been excessive costs, insufficient quality, and inconsistency of results. Over the past decade, most large corporations have moved toward centralizing and managing their eDiscovery functions, with defined processes and with approved preferred service providers. This has allowed corporations to reduce the costs of processing, hosting, and review. It has also allowed them to improve the quality of services that they receive from law firms and service providers with respect to eDiscovery, which has led to greater consistency in eDiscovery across all corporations’ matters.
We want to see corporations have a process that is utilized in every eDiscovery matter that arises. Obviously, the process must be tailored as required to the needs of that matter. Companies that do not have an eDiscovery process which has been implemented and documented in a manual or playbook, have higher costs and risk, because every matter that becomes significant in size is treated sui generis, with the strategies subject to the particular strategic decisions of the counsel in that matter.
With regards to the pandemic specifically, how do you think the pandemic will ultimately impact the legal profession and how it will impact the eDiscovery industry in particular?
It is hard for me to gaze into the crystal ball and say how the pandemic will impact the legal profession, but I do have more visibility into how it will impact the eDiscovery industry. One of the biggest impacts will be much more extensive utilization of remote work. On the collection, processing, and hosting side, the work of project managers and analysts will be done even more remotely than it is being done now. In my view, this will often lead to an improvement in terms of services to clients, because service providers and law firms will be able to find and hire the best people for their eDiscovery roles, regardless of where the best people are residing. eDiscovery roles that were previously limited to candidates in the region of a physical office are more often going to be filled by people who may live hundreds or thousands of miles away from the physical office.
With respect to the document review side of eDiscovery, during COVID the entire document review industry has moved to a remote model. There is a wide variety among service providers in terms of their utilization of appropriate security and workflow processes around remote review, but over time, those review providers with lesser workflow and security processes will improve.
I think that remote review is here to stay and will be new normal after COVID. There may be some level of return to in-person review at review centers, but I think that the utilization of remote reviewers, which has gone up so dramatically during COVID, will continue to go up and up in the coming years, just like the utilization of remote workers in all other aspects of our national economy will continue to go up and up in the coming years.
HaystackID has a pro bono training and support program, how does that work and how do organizations take advantage of that?
The pro bono program of HaystackID is intended to serve as a model for eDiscovery service providers to become more like law firms in terms of their commitment to pro bono services, and training and support around pro bono services. As you know, most large law firms have made pro bono commitments which require them to spend substantial amount of attorney hours every year on pro bono matters.
In the eDiscovery industry, service providers have historically not had formalized pro bono programs. The Electronic Discovery Institute (EDI) has launched a pro bono initiative, in which corporate legal departments, law firms and service providers make commitments to increase their pro bono services. As part of our support at HaystackID for that important EDI initiative, we have undertaken a variety of substantial pro bono projects in recent years. For example, we worked with the United States Army Judge Advocate General’s Corps to develop and launch their first-ever eDiscovery program. We also worked with the Legal Aid Chicago to conduct trainings and utilize contract attorneys in expungement matters. We are also supporting the development of a pro bono clearinghouse that will match eDiscovery professionals who want to do pro bono work with organizations that need pro bono assistance related to eDiscovery.
Doug, pro bono in eDiscovery is a little bit more challenging than pro bono for lawyers because there are not as many available projects relating to eDiscovery as one might find relating to litigation generally. For something to count as pro bono in eDiscovery, it has to be related to collection, processing, hosting, review, and production services. Projects like that are out there, we just need to work a little harder to find them, which we are doing.
Great, that sounds like a terrific program. So, last question, what else are you working on that you would like our readers to know about?
There are four projects I am working on that are certainly interesting to me, and hopefully are of some value to your readers to know about.
First, I am doing a tremendous amount of teaching through the HaystackID Educational program, including our monthly BrightTALK webcast, and the recordings of previous webcasts are available on our website. Apart from that, I teach the eDiscovery component of the civil discovery curriculum at the Northwestern University Pritzker School of Law. I serve as Executive Editor of the Electronic Discovery Institute (EDI) Distance Learning program, which offers free online eDiscovery education to anyone in the country who wishes to take that. I also speak probably a dozen times a year at continuing legal education programs related to eDiscovery.
The second project that I would like to highlight is the HaystackID Corporate Consulting Program. We have a formalized program to work with corporate legal departments to develop, maintain and/or enhance the eDiscovery programs in those organizations. The program includes the development of an eDiscovery manual, a training program and a data source catalogue, and the establishment of preferred service providers and documented processes for those service providers to accomplish the tasks of collection, processing, hosting, review and production.
The third project I am working on relates to eDiscovery in antitrust Second Requests. In antitrust Second Requests, the risks of excessive costs, insufficient quality, and inconsistency of results are much higher than in civil litigation. This is because the amount of data that we need to deal with in antitrust Second Requests is a lot higher, and the amount of time that we have to deal with the data and accomplish the collection, processing, hosting, review, and production is a lot lower, due to merger approval deadlines which are set out by federal statutes.
As a result, it is very, very important that companies and law firms have specific protocols established for handling eDiscovery in antitrust Second Requests before the antitrust Second Requests arrive. When the Second Request arrives, it becomes very difficult to change existing eDiscovery processes, to make them more cost-effective, efficient and consistent. The time for those protocols to be implemented is before the antitrust Second Requests come. We do a lot of this type of work at HaystackID.
The fourth project I want to mention which may be of interest to your readers is the Electronic Discovery Institute (EDI) Diversity Initiative. Through that initiative, we created the first-ever pledge to promote diversity in the eDiscovery industry, which has been signed by about two dozen corporate legal departments, law firms, and service providers. We also had a diversity mentoring program, which paired mentors and mentees from across the country together for the purpose of giving professional advancement opportunities to the mentees. Finally, we developed diversity promotion questions that have been used by corporate legal departments and law firms when they issue RFPs for eDiscovery services.
We are very proud of the growth and success we have had over the past five years with the Diversity Initiative. However, we do think that there’s a lot of room for growth there and a lot more work to do.
Ashish, thanks for your time today, and thanks for participating in the eDiscovery Today Thought Leader Interview Series!