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eDiscovery Trends and Best Practices: eDiscovery Today Interview-Pt 1

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The following interview was conducted by Doug Austin of eDiscovery Today.

Thought Leader Interview with Dr. Gavin Manes of Avansic: eDiscovery Trends and Best Practices

Time for another thought leader interview on eDiscovery Today! My latest interview is with a nationally recognized expert in eDiscovery and digital forensics, Dr. Gavin Manes of Avansic!

Gavin is a nationally recognized expert in eDiscovery and digital forensics and is the CEO of Avansic, a firm that provides the legal, business, and government sectors with eDiscovery, digital forensics, managed services, hosted online review, and expert services. Gavin founded Avansic in 2004 after receiving his PhD in Computer Science and serving as a professor at the University of Tulsa.

Avansic’s scientific approach to eDiscovery and digital forensics stems from Manes’ academic experience; this brings a logical and defensible approach to discovery. Avansic creates custom solutions in the laboratory to make processing more efficient and works with clients to create custom solutions and specialized workflows for any size eDiscovery project; for example, Gavin and Avansic have assisted in many aspects of eDiscovery for one of the country’s largest MDL litigations.

Gavin has also served as an expert witness for many legal proceedings through courtroom testimony, depositions and consulting with attorneys on data preservation issues. He has given hundreds of presentations to law firms, corporate officers, legal conferences and judges on the latest topics in eDiscovery. He frequently publishes articles in peer-reviewed journals and whitepapers on eDiscovery, security, and information technology.

Doug Austin: Gavin, you are currently conducting a series of Avansic DIY webinars to show eDiscovery professionals how to perform some of their own discovery tasks. What general advice do you have for legal professionals out there who want to manage their own discovery tasks and when should they consider reaching out for help to assist with those tasks vs. doing it themselves?

Dr. Gavin Manes: We’re seeing a change in the industry, much like when you went to that grocery store for the first time, and you are presented with the self-checkout concept. You might have thought “I'm not ready for that. I don't know if I know how to do that or if it's going to take me longer.” It took people a while to get comfortable with it. Once you get used to it, it's going to be quicker. Self-checkout is my “go to” especially if I have a handful of items, because the line is quicker, and you don’t have to wait in front for people in front of you. Or, when I have my kids, I’ll use the self-checkout as they like to help (assuming they’re behaving, I’ll let them). 😊 The same analogy holds in self-service discovery.

The tools are finally getting to a place where when you scan something in self-checkout, it may say “you need to bag that or not bag that.” For do-it-yourself discovery, when you ingest some document, it may tell you “there's a problem with this document and you need to do these other things to address it.” Whereas even a year ago, it would have been a failed silent problem where it simply didn't bother to process that data, and there wasn't confidence that the tools could lead us through the process to be successful. That automation and that quality control is so much better and it's continuing to get better as we learn from what the different systems and people do.

On the second part of your question, it's our job as vendors and developers and experts to really make that process smooth. We're going to learn from what you do and we're going to adjust the software and the automation to make it make more sense. But your last part of the question is, what is the advice on? When do you decide what to use and what “lane” you're going to go into? I don't see it as a volume problem. I see it as a liability problem.

If your lawsuit is worth $100 million, you probably would like the vendor to help you with discovery, because then it's their fault versus if you did it in house or yourself. But if the lawsuit is small, maybe the liability is lower, so you’re more likely to feel you can do it yourself back and forth. That's what we see in the change the DIY world is bringing and that's what we hope to convey for these webinars.

Doug Austin: Interesting analogy and interesting perspective. How has the pandemic impacted your clients from a discovery standpoint in terms of their challenges and how they have been addressing those challenges?

Dr. Gavin Manes: Luckily, everybody's finally comfortable with virtual meetings. I remember using Zoom and GoToMeeting when there were only five-digit codes for meeting rooms, and nobody was using this technology, and it was weird. Conference calls were the norm. Now that we've gotten comfortable with virtual meetings, what's changed in the pandemic is that we can collect data from remote locations. We're not having to get on airplanes and fly places to go and collect and preserve data.

We've been doing that for years, offering the ability to do these collections over a web meeting with a screen share. But everybody would always say, “oh, no, you can't get into our VPN or our remote desktop”. And my response would be, “No, I don't want that. I want you to share your screen, you to give me access to the keyboard, and anytime you can grab it back and take it away from me – you're still in control. And I think now that people have been forced to use virtual meetings for the last year, the legal professionals are embracing this technology that the rest of us have already been using for a long time.

The other thing that they're realizing is that the people that manage the servers are not in the same building as the servers, and they haven't been there for years. The legal industry is always been very “touchy feely” because it's a people business. You want to put everybody in a room and talk about something, and now they've embraced this technology out there and gotten more comfortable with it.

From an expert perspective, I’m sitting here right now in my deposition room. It's so much more efficient for me as an expert witness to provide a deposition remotely versus flying everything. I attended a great webinar where we were talking about virtual vs. in person depositions. There are some pros and cons, but the cost savings and the efficiency for virtual depositions is amazing. I think it's going to head that direction to where we're going to see more and more of these motion practice still stay virtual depositions and hearings stay in that virtual world.

We're fortunate in the legal industry (and even in the IT industry) that we can be able to work remotely successfully where a lot of industries can’t. We have to remember that even though we're getting used to this, my client may be a law firm who ultimately has a client who may not be used to this, it may still be in person. Still, we've been moving forward with the technology and this remote world and determining how can everything be done remotely.

Doug Austin: Actually, I just covered a case involving the parties disputing over in-person versus remote depositions. Certainly, the trend is towards more and more remote, because that's where we all are these days.

Dr. Gavin Manes: I look forward to that becoming stronger case law because that case brought all the evidence to the forefront with the Court asking, “Why are we making people fly and then fly again two weeks later for a 30(b)(6) deposition. It's not like an expert deposition with me presented here remotely vs. being presented in person. You won’t gain anything from looking at me funny or kicking me under the table. For a fact witness or a party witness, there might be that whole intimidation factor that counsel is working on. But the webinar that I attended discussed techniques that you use in person and how you develop those techniques and use them here. Like doing this (leans in close to the camera). That is an intimidating thing where a witness might back up. All those techniques you had in person, you can adapt to Zoom and get the same effect. Some litigants have gotten good at adapting while others are going to try to revert back to the way it was before the pandemic, or at least try to do so.

We’re just getting started! Part Two of my interview with Dr. Gavin Manes will be published on Wednesday.

So, what do you think? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclosure: Avansic is an Educational Partner and sponsor of eDiscovery Today

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.