A Chasm Exists, Creating Huge Opportunity for Litigation Service Providers
Our industry’s revered framework for managing the eDiscovery process, the Electronic Discovery Reference Model or EDRM, is comprehensive in many respects. However, since joining Transpire in 2021, I fell immediately into what feels like an intellectual and technological chasm lacking in understanding and illustrating a dearth of innovation related to litigation activity happening between the two boxes labeled Production and Presentation in the model.
I’m not an island in thinking this. In fact, the EDRM 2.0 working group has a “right side” team asking the requisite questions. Full disclosure, I am part of that team.
There is an argument to be made, that eDiscovery essentially “ends” once documents are produced. E-discovery best practices evolved from a lack of preparedness and resulting mistakes. An industry grew from it – an industry that catered increasingly left to follow higher data volumes and mitigate the issues caused by it. The EDRM was originally conceived to deliver a defined and streamlined process for efficiently and effectively responding to requests for volumes of information in the face of corporate America’s perpetually evolving technological landscape, while educating practitioners with high-level best practices and a road map to follow.
We nailed it.
Decades later, we are revisiting the model, and for the righties, the model feels light. The intensive and extensive work litigators and trial consultants do in this space is seemingly absent. If a post-production workflow and/or the presentation of evidence do belong within the EDRM, the right side of the EDRM needs more meat on its bones.
Part of the disconnect may be attributable to the fact that different people are doing different work in those two boxes. eDiscovery people consult on Identification through Production. Trial Support people focus on presentation. Two distinct types of consultants in two distinct phases of litigation - never the twain shall meet.
Most of the alternative litigation service providers (ALSPs) I spoke with at Relativity Fest this week say that they are largely done once they deliver a production. Those whose input informed the EDRM were correctly focused on getting to the production stage, but because some of the documents produced in litigation may become trial exhibits, they thoughtfully included “Presentation” at the end. It’s as though there are eDiscovery people and hot seaters and not much room to collaborate in between and those in a position to assist case teams with post-production tech-enabled services really don’t know what happens once the production is out the door.
At Transpire, we created and continually refer to a framework for the litigation that doesn’t fit neatly into the current EDRM. Perhaps it’s a model in its own right – a PDRM (Post Discovery Reference Model) or PPRM (Post Production Reference Model) - suited to educate attorneys and those that support them as they head toward disposition of a case one way or another. This is useful in helping case teams develop strategies and workflows for their cases and educating our service partners as to where they can better assist. The workflow reaches back into document discovery and presentation can happen in multiple places. It ends when the case is ultimately disposed of - one way or another.
My personal observation from the field is that current post-production workflows vary but share a common theme in that they are arcane and piece meal - carried out by a patchwork of various applications not suited to various tasks of organization, collaboration or story building. Excel spreadsheets, labeling tools, witness trackers, dep designation and objection software, and plain old Microsoft Word are standard fare. Case teams are left to their own devices to turn piles of key documents, deposition transcripts and images into a cohesive case strategy. Then they create timelines, demonstratives, outlines and court deliverables and instruct a hot seater on how to present it all persuasively. ALSPs have much room to grow here in the chasm.
I attended Relativity Fest this week seeking a few new service partners to test drive Transpire v4, slated to ship Q1 2025. After many conversations, it’s clear that those best able to collaboratively guide legal teams through fact management, development of case strategy, deposition designations and the like are already in place in the ecosystem but aren’t aware they easily can bring additional value or higher-value consulting to their clients and customers. So, let’s consider this the start of my love letter to those who toil in the chasm and my work to educate those poised to illuminate it.