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Proof Of Concept: More Powerful Than A Demo, Read Between The Lines

Recently, I have been a part of many conversations with clients and peers of mine throughout the industry about how to distinguish new tools and determine when to adopt them. It is a really common topic – there is even a whole panel on the topic at the ACEDS Ohio Conference I’m attending today. A lot of new products being offered to end clients and I completely understand that it can be overwhelming to evaluate what is the best fit for you and your team. The fact of the matter is, technology is hard to evaluate in a vacuum and it is also hard to adopt without the right team around it.

When discussing potential new technologies with my clients, I like to do a proof of concept (POC) as a method for them to get insight into the technology and the team. For those clients interested in making change soon, I find a proof of concept works better for them than a software demo. We essentially use our client’s own data from a recent matter and quickly run an end-to-end process on it. It’s a low risk, no cost and limited time investment to assess the new technology and the service behind the tools. Adopting new software without an adoption plan is doomed to fail. People and process need to fit in, too. The POC should be evaluating all three.

Here’s what a proof of concept can tell you

How much does your service provide focus on understanding the problem?

From a POC, you can see whether the service provider is pushing features, or focused on service and understanding the underlying challenges you are facing. A really good team will take the time to understand what you are doing today, what you want to change, and what your goals are. From there, the service provider can guide you to workflows, applications and features that will have immediate benefits to you. And, they can quantify those benefits in terms of time, money and risk.

How does the new software compare to the current technology solution on an apples-to-apples basis?

I think at one point or another we have all heard or said, “All providers say the same thing” or my favorite “You’re a sales person, you all claim to have the best product and service”. When I try to empathize with prospective clients, I can see why they may have these thoughts. For the most part, industry software demos are based on the Enron dataset – and it’s hard to know how much work the software is doing versus how much has been scripted based on familiarity with the underlying dataset. What better way to block out the chatter than getting a live look at your data in context with a potential product? There are a lot of great products out there and they can be a great fit for clients, but sometimes a demo doesn’t showcase that very well.

I only sell products and services that I think are in the best interest of my clients. But, I understand when my potential clients have a healthy dose of skepticism about my claims. They are easy to make. But, the proof is in the pudding. The blind retroactive approach can be an extremely powerful way to test a POC. This is where we take data from a case our client has done recently, and we put it in a new technology and treat it as if it’s a new case we are working on. So, the outcome of the previous case is blind to us. Most of my clients have taken this approach and found it really beneficial.

The client gets to take a look at what type of features and tools the new product has, while having the added benefit of fully understanding all the details of the case. With retroactive POC, clients are able to identify how quickly information would have been pushed to them compared to what they actually did. From there, they can understand: How does this new tool make their litigation process more efficient and less burdensome? Or does it not do any of that and are their current tools and process sufficient? Either way, because my clients are looking at data they are familiar with, they are able to answer these questions very quickly.

How good is your service provider at nuts-and-bolts service?

In looking across the entire process that is involved in a successful POC, my clients have realized that in addition to understanding whether the actual product was valuable, they could also see if the service provider was a good fit for them as well. The process creates an opportunity for potential clients to learn how well the service provider communicates, whether they ask sufficient and effective questions (regarding the case and what you are trying to accomplish), how consistently they hit deadlines that you both agree to. Even though it’s not a Live case, all of these things are important. If the provider you are working with applies these type of methodologies to a “practice” scenario that generates no revenue, it is probably a good indicator of what to expect during a live case.

Final Thoughts

Finding new technologies and potential partners is extremely difficult, I understand that. A POC does not always make sense in every case. But just like any big purchase we make in our daily lives, a lot of steps go into the evaluation process: research on specific tools and partners, peers feedback on their preferred tools, clarification of needs vs wants. Once all that research is done, try to engage with a potential partner for a POC. Because at that point, it will give you the most clear picture as to whether or not that solution is a good fit for underlying goals.

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About Acorn 

Acorn is a legal data consulting firm that specializes in AI and Advanced Analytics for litigation applications, while providing rigorous customer service to the eDiscovery industry. Acorn primarily works with large regional, midsize national and boutique litigation firms. Acorn provides a high-touch, customized litigation support services with a heavy emphasis on seamless communications. For more information, please visit www.acornls.com. 

How Moving From eDiscovery Software to Services Changed My Views on Value-Creation

I started my eDiscovery career at Milyli, selling Relativity-compatible redaction software to service providers. Being value-focused in general, a point of real curiosity for me was understanding how my clients, eDiscovery service providers, created value for their clients relative to their competitors. Overwhelmingly, the most common answer I got to the question was “because our people are the best.” Some vendors had also developed proprietary software as a basis for differentiation.

For years I thought that the only reasons that people bought from specific vendors were proprietary software and because of relationships. But if every vendor has amazing people and some have even crafted specific technologies, why do only 34% of the people buying eDiscovery software think their eDiscovery service providers understand their challenges? (Source: Baretz+Brunelle )

Since coming over to the service side, I do have a few observations about why so many buyers feel misunderstood by their vendors – and how I see value-creation in eDiscovery as more than just people or technology.

Defining the Organization’s Challenge Is Hard – And Beneficial

When I was at Milyli, an executive at a service provider explained that they went out of their way to try to develop a great relationship with prospects, so the prospects would believe their people were better than others. As a salesperson, this makes sense because someone who buys services typically won’t be convinced that your people are better than your competitors unless they have worked with your team before, or someone that they trust has.

Salespeople, who I would expect to ask the most questions in order to surface business challenges, are mainly selling on relationships. Learning about business challenges in something as complex as eDiscovery is not an easy task. There are a lot of technical, legal and inter-personal nuances to understanding eDiscovery challenges. The challenges are spread across multiple stakeholders in an organization at many different levels. It’s very rare that a single person can fully define their organization’s challenge and even more rare to expect them to be able to define the root causes of the challenge.

At Acorn, my success is measured on how much I learn about my key accounts – and how well I define the next most pressing questions to get further insight into my clients’ challenges. It is a collaborative process – but critical for me to be able to tailor a unique solution for every one of my clients.

Standard Process Is Important – Agile Process is Paramount

Most service-delivery processes have been designed for cost-efficiency or service-standardization—with less thought given to designing a process to uncover and respond to evolving needs. Standard workflows, layouts and communications protocols are important. They create consistency and drive efficiency. However, standard workflows fall apart when they are applied to an “outside-the-box” project. The team may be less sophisticated than the standard work assumes; the project may need a tighter turn-around time than the standard process was designed for; or the data types might be more diverse than the standard work considered.

Agile service process is designed to capture these evolutions in needs and adapt. My colleague Zef Deda has written articles about KickOff Calls and Project Estimates   – both of which surface evolving needs at the outset of the project. Neither are ground-breaking ideas, but when used with fanatical discipline, often they solve the challenges of eDiscovery. Things such as unpredictable costs, lack of communication between all parties and defined roles can be solved with the correct process, if good people are a part of the process.

“The team may be less sophisticated than the standard work assumes; the project may need a tighter turn-around time than the standard process was designed for; or the data types might be more diverse than the standard work considered.”


For software to be valuable, not only does it need to fulfill a need for a firm or case, but it also needs to have experienced people using it. How big of a difference people make while using the exact same software came to light for me over this past Labor Day Weekend. My 75-year-old father and my 13-year-old niece both have the exact same phones and decided to take pictures. My niece had multiple pictures posted on Instagram and a video added to her SnapChat Story before my father figured out how to switch the camera from the front facing camera to back facing. While some of you may think that is an extreme example, it really isn’t when you have had a great project manager and one less experienced with applying the software.

Talking About New Technology Is Great – Applying It to A Specific Challenge Is Valuable

There are different industry views about whether proprietary technology is best developed under the same roof as service delivery or under a different roof. Coming from the software side of the business, I feel that decoupling software and service keeps people focused on understanding customer challenges rather than pushing an in-house technology. When you have a hammer, everything looks like a nail. When a vendor has 3 different eDiscovery platforms, 4 different applications that do TAR, and many other software options, it makes them learn more about a law firms’ needs, challenges, and goals for a case so that they can suggest which option(s) to use.

When new technology is being pushed purely on the basis of feature-innovation, the technology falls short of creating value. When new technology is coupled with a team experienced in applying it to client needs, that solution is valuable.

Conclusion

Overall my view on how people buy in this industry has changed dramatically from when I was on the software side of eDiscovery. Quality people are critical to providing quality service. This is true for eDiscovery just like it is for any other industry. Relationships still matter, because without them clients will never open up and share details about their business needs and challenges. But neither of those are value creating solutions.

30% of eDiscovery buyers resent contact from salespeople. (Source: Baretz+Brunelle ) As an industry participant, vested in understanding eDiscovery challenges and in working collaboratively to develop better solutions, I find that disheartening. By focusing on creating value, I hope that I can engage with the community and fully understand eDiscovery challenges before I propose solutions.

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About Acorn 

Acorn is a legal data consulting firm that specializes in AI and Advanced Analytics for litigation applications, while providing rigorous customer service to the eDiscovery industry. Acorn primarily works with large regional, midsize national and boutique litigation firms. Acorn provides a high-touch, customized litigation support services with a heavy emphasis on seamless communications. For more information, please visit www.acornls.com.  

The 2 Key Ideas from ILTACON’s “Predictive Coding for Dummies (Everybody)” Panel

I have been passionate about predictive coding since I first got into the eDiscovery industry. It’s been an area of high focus for Acorn since I acquired the company about 2.5 years ago. Since then, we have performed Technology Assisted Review (TAR) projects on 4 different platforms for everything from a Second Request to a 10,000 document review. I have spoken at numerous CLEs and industry events in front of GCs, in house attorneys and support staff on the topic, in an effort to facilitate adoption in the industry.

Recently, I was invited to speak at ILTACON2019 on the topic with four other industry insiders. I was surprised at the number of folks in the audience who had first-hand experience with TAR. About 2/3 of the audience had used predictive coding on at least one case, although a smaller number – only around 15% — had used it on multiple cases.

In an industry rooted in pragmatism and practice, the panel talked extensively about the industry shift from TAR 1.0 and TAR 2.0 ( as covered in law.com article ). The panelists were super knowledgeable, and we were lucky to have a very engaged audience. A number of thought-provoking questions were asked, which reflects an increasingly sophisticated audience.

Here are the two big ideas that caught my attention:

CostShifting/Sharing: Facilitator of TAR Adoption and Discovery Cooperation

The 2015 Federal Rules amendments added subsection (c)(1)(B) to Rule 26 to expressly address cost-shifting in discovery. Courts can impose costs on the receiving party for “non-core discovery” activities or for a failure to make a “threshold showing of merit.” ( as covered in a Legal Backgrounder article hosted on Pepper Hamilton’s website span> )

The central challenges in industry adoption of TAR in a “not every document gets an eyeball” application are questions of disclosure requirements, cooperation with the opposing side and judicial discomfort in adjudicating disputes over questions of TAR. Discovery cost-shifting means both opposing parties have skin in the game — to the loser goes the Discovery bills. If eDiscovery cost-shifting becomes more prevalent in the industry, it will create more of an economic incentive for both sides to cooperate in leveraging technology for review efficiency. It seems like a win-win-win.

Cooperation between Plaintiff and Defendant is an area Chad Roberts of eDiscovery CoCounsel has spoken about on a national stage at RelativityFest – and I want his take on this matter, especially as relates to asymmetrical litigation.

The Next Big Frontier: TAR AI Models and Document-Set Mega-Trends

For a few minutes, the panelists were allowed to put on our Futurist Hats and asked to speculate about where the technology may evolve. Two actionable ideas were surfaced.

First, creating AI models from previous matters to leverage that expertise on future matters. This is a natural extension of the idea behind predictive coding. If you can use a baseline of review work-product to predict the coding outcome of the remaining documents in a case, then you should be able to use a baseline of work-product from a previous, similar case with similar issues or similar clients, and use that to predict the coding outcome of documents in the new case. Privilege review seems a very natural starting point for this advancement in eDiscovery.

Second, the trends across the entire document set will become evidence as much as the documents themselves. For example, if a salesperson is conspiring with a competitor to transition their client base and circumvent their non-solicit, they might be smart enough to not leave a paper trail. But, you can probably see other trends that point you to what’s happening. Maybe their communications with a key client from their company email drop relative to historical values. Maybe their after-hours communications to non-company email addresses are higher relative to historical values. Maybe they take longer to reply to their supervisor’s calls than normal. Looking at any documents individually won’t tell you that story – but seeing the whole trend will.

In my view, Jay Leib and NexLP are at the forefront of innovation in the industry on both of these topics. They have been developing technologies like these TAR 5.0 Imaginings for a couple years. With their product, we already have the capability to use AI models across cases — it is particularly valuable for employment matters. And we are already aggregating data trends to find the hidden stories – a particularly compelling example is when StoryEngine was used for document-universe trends in a price-fixing matter.

Conclusion

I really enjoyed the opportunity to gather and discuss predictive coding in the industry. We are seeing adoption of TAR increase and people hone their skills. I am excited to be a part of a dynamic and engaged community. And I look forward to having the opportunity to discuss how predictive coding can be used by all skill levels in all different types of matters. Erin Tomine at Conduent summarized the panel very nicely, “The human aspect is still so important” in determining the appropriate TAR approach, in clarifying the objectives of TAR, and in managing communications across the team. “Even as we embrace technology and AI, it can’t do everything for us.”

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About Acorn

Acorn is a legal data consulting firm that specializes in AI and Advanced Analytics for litigation applications, while providing rigorous customer service to the eDiscovery industry. Acorn primarily works with large regional, midsize national and boutique litigation firms. Acorn provides a high-touch, customized litigation support services with a heavy emphasis on seamless communications. For more information, please visit www.acornls.com.   

Top 3 Reasons People Get Surprised by Their eDiscovery Bills – And How I Manage Expectations to Avoid It

I am fanatical about ensuring my clients are never surprised by an eDiscovery bill.

In my last article, I outlined some techniques I use to facilitate communications between the various team members at the outset of the project to avoid eDiscovery surprises down the line. I received a lot of questions about identifying potential changes in scope and managing client expectations around those changes.

The truth is that changes in eDiscovery scope are an inevitability. Facts clarify and develop; opposing sides take unanticipated discovery positions; the court makes unexpected rulings. As the situation evolves, the discovery needs start to slowly deviate from the original estimate. Before too long, those small deviations in scope become substantive expenses. If these risks and changes are not adequately identified and communicated up front, clients can end up surprised by a bill.

These are the 3 things that I most commonly see cause change in scope — and the techniques I use to estimate the uncertainty to set expectations with my client from the get-go.

Search Terms

Often when I am asked to provide an estimate of total project expenses, the search terms have not been finalized or optimized for efficiency. Estimating how much culling will occur during the search terms significantly drives downstream costs.

In order to get an accurate assumption of culling ratios for the budget and to design efficient search terms from the get-go, I like to test the proposed search terms against a few key priority custodians. Typically, that allows my team to provide a more accurate range of what is likely to be inclusive documents, while simultaneously allowing the team to consult on search term efficiency. By consulting and collaborating with the subject matter experts on the matter, my team can quickly get an understanding of how many documents are subject to review, available for exclusion, or potentially in a grey area that will be determined based on opposing and court input.

More Custodians

Typically, there a few primary custodians that are clearly in the scope of eDiscovery at the outset of the matter. But, other custodians related to the matter usually emerge down the line. If that potential increase in scope has not been identified and quantified at the outset of the matter, those additional custodians can incur surprise expenses.

“While most industry insiders think of eDiscovery primarily in terms of email, office documents and text messages, these alternative data sources are an increasing share of data and an increasing source of evidence.”


Attorneys generally have a long list of potentially relevant actors that they have surfaced from custodian interviews or experience in similar matters. Confidently reducing that list to only relevant actors at the outset of the case is near impossible. I like to have my team run a few priority custodians through NexLP’s StoryEngine first. It helps us quickly and accurately define the list of potentially relevant custodians quickly – and I have found gets a more accurate range for the total project estimate.

Other Data Sources

This is generally the big unknown unknowns.

Alternative data sources such as social media accounts, audits of collaboration tools, Slack, WeChat, WhatsApp and other alternative data sources may have been excluded in the initial scope. While most industry insiders think of eDiscovery primarily in terms of email, office documents and text messages, these alternative data sources are an increasing share of data and an increasing source of evidence. In a lot of cases, the “smoking gun” cannot be found. But, communication trends developed across all these alternative communication channels are used to support legal arguments.

To evaluate the risk of scope expansion due to alternative data sources, I usually just ask my clients if it is on their radar. If it is not on their radar, we identify it as a known unknown on the estimate. After that conversation, some clients include inquiries about alternative data sources on their standard custodian questionnaire.

With my clients, I have received a lot of positive feedback with taking a look at these three topics very early on. In addition to reducing costs and giving my clients a competitive advantage, these discussions arm my clients with all the facts so they can more proactively manage their eDiscovery budgets from the outset of the case.  

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About Acorn 

Acorn is a legal data consulting firm that specializes in AI and Advanced Analytics for litigation applications, while providing rigorous customer service to the eDiscovery industry. Acorn primarily works with large regional, midsize national and boutique litigation firms. Acorn provides a high-touch, customized litigation support services with a heavy emphasis on seamless communications. For more information, please visit www.acornls.com.    

My Top 5 Items to Cover in a Kickoff Call And Why

Technology is sexy – why are we talking about kickoff calls?

One of the biggest challenges in eDiscovery is managing communication. Clients care about money. The attorneys care about impact to the legal strategy. Litigation support cares about a predictable process. My team cares about leveraging technology as effectively as possible. Everyone looks at eDiscovery through a different lens, and challenges come up when people are not on the same page about what is needed or feasible.

To make matters more challenging, data is unique. Each case brings on its own complexities. Maybe the teams have not worked together before or have varying levels of technology knowledge.

For my clients, a 30 minute kickoff call at the beginning of the project resolves a lot of the miscommunications. In that brief time, I can identify budget-blowing or schedule-subverting issues and set the expectation of needing future calls. Each call always includes the following five items, in the following order

1: Case Priorities – Deadlines, Budgets, Insights

The most important questions I ask here are: “What are the deadlines?” “What are the most important questions you need answered?” These two questions are the North Star in the strategy around the matter and effect budgets, deadlines and suggested workflows. They also let the project management team identify potential pitfalls during the course of the project, because they are in the loop about what the key priorities are for the dataset. Sometimes the priorities are driven by trying to find what key custodians were doing. Sometimes they are driven by legal strategy of when to produce what. Sometimes the purpose of the data is to develop the strategy for the remainder of the eDiscovery process. The important thing is that everyone is on the same page.

2: Potential Changes in Scope

At the outset of the case, there are a lot of unknowns. Any comments around the deadlines or goals are likely going to change as the case unfolds. A lot of times, the budget is not strictly set. It is a more iterative process of scoping, estimating and iterating. But, touching on some of these factors help the project management team stay on top of when there will be significant deviations from the original time / budget estimate.

3: The Current Plan or Workflow

Typically, my clients have an idea of how they want to approach their matter. Oftentimes it is based on what has worked in other cases. My first step is to lay out what the cost and timeline implications of the “current plan” will be. If the current plan works on both those fronts, that’s great news! It makes managing the case easier.

Oftentimes, though, I need to get creative to meet time or budget constraints. At this point, my team can offer suggestions for workflows that may be more efficient and effective for a case.

For example, for clients in the early investigation phase, I may be inclined to suggest a “phased” approach. This is where your primary custodian data is placed into an AI platform to help provide feedback on the story of the data — key communicators, topics, times, documents, etc. This approach works extremely well at keeping early cost down while simultaneously providing incredible substance and value early on.

4: Explicit Communication Plan

This is frequently overlooked because it is easy to assume the whole case team is on the same page about this.

The two most important questions I ask here are “Who are the people that we should go to with questions?” “What is the most effective way to communicate that we need to schedule a phone call?”

Case teams typically do not realize why it is in their interest to provide a lot of input to my team. This is an opportunity for me to lay out who my team needs input from, how frequently, and how best to get it – and to set expectations with our clients, so they can plan accordingly. Getting buy-in from clients at the beginning of the project on these issues avoids a number of downstream miscommunications.

At this point, I also like to discuss any training that is needed, if we should have standing meetings for follow up and quality assurance. Standing meetings or regular updates are typically not practical. Sometimes, recurring written reports can serve as adequate substitutes.

5: Explicit Action Items

Like item 4, this is easy to overlook. But I find it’s beneficial for communications to recap and review what action items were determined, when they are due and who owns them. Going as far back as I can remember, it’s always been instilled in my brain to Check, Check, re-check. This is the last chance before everyone is off to the races to confirm due dates, action owners throughout each step and goals for this to be a successful case.

At this point, I also like to reaffirm any action items that may substantially impact the team’s understanding of the timing and costs or the team’s ability to meet those objectives.

This simple agenda lets my team be a thought partner to my clients in thinking through the entire process. It helps us circumvent the pitfall of becoming just an order taker. Often times our clients are in stressful and high-pressure situations, so this helps my team make better in-the-moment decisions during the project for client requests and expectations.

Taking the time to turn a reactive situation into a proactive one takes a lot of discipline, confidence and belief in your case teams to deliver. My clients appreciate the consultative approach. For some, it was an adjustment in the beginning, but they were enthusiastic promoters of the approach by the successful conclusion of their matter.

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Be Sure to Follow Me for the Latest Content and Subscribe For the Latest Acorn Insights! 

About Acorn 

Acorn is a legal data consulting firm that specializes in AI and Advanced Analytics for litigation applications, while providing rigorous customer service to the eDiscovery industry. Acorn primarily works with large regional, midsize national and boutique litigation firms. Acorn provides a high-touch, customized litigation support services with a heavy emphasis on seamless communications. For more information, please visit www.acornls.com.  

eDiscovery for Small Cases: No Platform vs. eDiscovery Software

For most people, handling small cases is a headache. eDiscovery software can be expensive and more time than it’s worth. But manual reviewing documents without a platform is inefficient and a big issue if the case unexpectedly scales up.

After observing both sides of the spectrum, I’ve heard dozens of issues with both. Here are five things you should do to make eDiscovery valuable for small cases:

Avoid Analytics

I never thought I’d be saying this, because I am a huge fan of applying Analytics to almost every case, but Analytics should not generally be used on small cases. Email threading, technology assisted review, clustering, or data visualization is going to add to the cost while taking the attorney longer to learn than the amount of time it would save. Be aware of the people pushing anything, no matter the size of the case, because they are just going off standard best practices instead of changing their approach for your needs.

Create a Template with a Very Simple Review Panel

With small cases, there are going to be significantly fewer coding decisions. While each practice may have different requirements, most of these small cases only require 3-4 coding decisions. Anything more can be overkill and will take too much time compared to the value that you will get out of it.

Limit the Team and the Permissions Available

Small cases require as little overhead as possible, so smaller teams and fewer software options keep things simple and reduce the risk of miscommunication. Generally, on small matters, we recommend that only two people have access to the database – one paralegal and one attorney, and that the permissions are limited to: redact, review and produce. Permissions beyond these frequently create complications and rework.

Standardize Reports Across All Matters

Reports are valuable. End-clients like them. They help attorneys visually contextualize the database and use point-and-click prioritization of review. Custom reports, however, can take more time to configure than they save. We recommend simple, intuitive consistent reports across all cases. Our favorites are (1) review progress (2) email domain analysis (3) file data type analysis. These are all quick reference reports that help attorneys gauge progress and ways to reduce review volumes.

Negotiate Fixed Monthly Fee Agreements with Your Service Provider

Small cases typically have tight budgets. And there’s nothing more frustrating than discovering unexpected expenses in a budget. With Items 1-4, the review workflow should be standardized and simple enough that your service provider can provide an affordable fixed monthly fee per matter.

The above techniques can create a repeatable, simple affordable approach to eDiscovery that can be used on a high volume of small cases to great results. The key to successfully deploying the above techniques is ensuring that you are on a technology that can work on small cases, and scale if a small case significantly increases in scope. Acorn has created Acorn Review Light for small cases, which can scale to serve any size matter. There when you need it, not when you don’t.

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Be Sure to Follow Me for the Latest Content and Subscribe For the Latest Acorn Insights! 

About Acorn 

Acorn is a legal data consulting firm that specializes in AI and Advanced Analytics for litigation applications, while providing rigorous customer service to the eDiscovery industry. Acorn primarily works with large regional, midsize national and boutique litigation firms. Acorn provides a high-touch, customized litigation support services with a heavy emphasis on seamless communications. For more information, please visit www.acornls.com.