Introduction: Aaron Fluss, the National Director of Managed Review for FRONTEO, talks about the value of creativity during document review and explains why, despite an explosion of data – and costs related to corralling all that data – technology can’t replace the human touch. His remarks have been edited for length and style.
MCC: Please tell us about your background, including your experience at a number of leading law firms, and how it informs what you do today as National Director of Managed Review for FRONTEO USA.
Fluss: I started doing document reviews as a line-level attorney on hard-copy documents 16 year ago. I switched gears from mediation to document review. As I excelled on projects and was given more and more responsibilities, I was elevated to review manager roles. Quickly, I was working with various agencies within the Bay Area as one of their go-to review managers, and I built a reputation within multiple law firms. I would get called back from one law firm to another or rolled onto multiple projects. All of that has given me a very solid base to understand more than just the business side of managed review but to actually understand how to successfully run a review project, from the most efficient method in coding documents, to finding the good documents, to making sure the project stays on track.
MCC: Your managed review firm, Essential Discovery, was acquired in November by FRONTEO USA. Tell us about the decision to join forces and the value proposition for customers, particularly corporate law departments.
Fluss: Three years ago Essential Discovery made me the national managing director, and one of the principals of the parent company, Eastridge Workforce Solutions (Eastridge). I started getting more into the data side, trying to compete with the full-service offerings as well as expanding nationally. Eastridge is more of a staffing company than an e-discovery company, so it was decided that the best course of action was to look for a good partner to purchase Essential Discovery so we could truly build it out end to end. FRONTEO was a very attractive company because they had already developed an end-to-end solution. It was a great opportunity to join together to enhance their service offerings and combine to deliver high quality document review to both our client bases while leveraging the strenghts of FRONTEO’s offerings. It allowed both organizations to expand our current client base and work off the synergy of combining companies.
MCC: It’s been less than a year, but how’s it going?
Fluss: It’s been great in that, normally, I was responsible for bringing in prospects and really doing everything, from business development, to overseeing the project managers, to recruiting. And while I still serve in that role, I now have expanded responsibilities and also have access to a dynamic sales team bringing opportunities to my doorstep. So, now it’s about focusing on delivery and figuring out how to come up with the best solutions for potential clients.
MCC: You’ve designed review protocols that have saved clients millions of dollars. What are the key attributes of a successful review protocol?
Fluss: Even before looking at the protocol, I look at the workflow of how we’re going to approach the review to see where we can gain efficiencies. Obviously, technology assisted review (TAR), analytics, predictive coding need to be in play – that’s all the buzz and rightfully so. But we have to see what a client’s comfort level is with implementing the various tools. Then we design a workflow that makes sense for them to meets their goals. A lot of the time clients want to use predictive coding, and the technology side says they can do it, but they’re missing that bridge to actually doing it from both a substantive and technological perspective. That’s where we’ll come in and help them out, even if that means we’re the ones training the seed sets.
Same for analytics, threading and and other advanced features of review. Analytics can be a very powerful tool in terms of categorizing documents and figuring out workflows around those documents. We definitely offer that same advice and consultative services, to ensure clients are really leveraging the technology. Too often organizations buy these bells and whistles, but at the end of the day, the implementation fails. Combined with our SMART team (what we call our subject matter experts) and our review teams, we’re able to implement some great workflows to truly leverage these products in a meaningful way.
One of my favorites is FRONTEO’s advanced review. I’d almost call it an old-fashioned TAR. The idea is that we get a few expert reviewers, develop a substantive understanding of the case and start to flush out some of the issues. We also look for more efficiencies to be gained in terms of the secondary culling of data. Often times you’ll find that you can do early case assessment (ECA), you can apply predictive coding and analytics, but there’s still more room to cull down that data without truly progressing into linear review, especially if you haven’t applied those tools. Once you have that substantive understanding of the case, you can find data sets that might be irrelevant.
It’s that combination of coming up with a workflow that makes sense for the goals of your matter so you really understand what type of matter this is and what the nuances within the matter are.
MCC: You’re known for implementing quality control systems that drive up accuracy while driving down omissions during the review process. How do you find the right balance between technology, talent and process to achieve best-in-class results in managed review?
Fluss: From the review manager perspective, the two keys are leadership and creativity. Those are really hard traits to teach. If you approach document review as a linear task where all they’re doing is clicking and plugging away, and you don’t have that iterative process where information’s coming back, being fed back into the loop, you are going to get a subpar work product.
When a reviewer performs well on one of our reviews, we recognize that through the quality control of the work product, and then we make sure to keep that reviewer busy, keep them with us so that we’re not sourcing new reviewers every time. As long as you can keep to your word and keep people employed, you’re going to retain a certain amount of loyalty. You treat them in a fair manner. Make it an enjoyable environment. Reward your good people with more and more assignments. Sometimes we have clients that request that our attorneys work on multiple projects.
MCC: Do the approaches you take vary dramatically across different types of matters, from IP litigation to investigations? Are any of those harder or easier, more challenging or more gratifying?
Fluss: The review workflow approach is modified for the specific type of matter. However, being able to apply general principles seems to stay the same – figuring out ways to cut down additional data before review begins; figuring out the key issues, substantive issues, to this matter; and creating a workflow that identifies those key issues and makes sure you don’t miss anything. Then also we’re leveraging technology, as well as coming up with a good quality control process to catch documents, and helping out with production afterward.
It could be akin to building a house. You have to have that foundation, no matter what. If you’re in an IP review, then you’re going to be looking out for certain issues and tweaking things a little differently. The shell is the same; that general understanding of e-discovery workflow and pitfalls will be there. And while you need that foundation, you definitely have to tailor the approach.
The clients are critical as well. We deal with foreign language cases where we find out that the client had their own lingo, their own corporate-speak. You have to identify those and then build out workflows taking them into account.
The specific clients and the scope of the matter influence the workflow. For example, in an IP matter, knowing if this a matter between two giants is important. Is this one company’s main litigation, and this is their main competitor – or is this somebody trying to enforce patents that they’ve purchased or they’ve acquired? For two industry giants, it might make sense to expend a certain amount of resources and defend it vigorously, because this can really impact the well-being of the company. If this is a case where it’s a passing troll trying to enforce some patents that the company thinks are not valid or don’t apply, well, maybe they don’t want to spend the same amount of resources.
One of the best things that we do for our clients is case memos, case summaries and witness preparation kits after linear review has been conducted and production’s been made. People tend to forget that e-discovery is more than just production; it’s also the presentation of documents. This is your evidence. You have this awesome team of reviewers who know the documents better than anybody else. Within that team of 20, you have a great review manager and some all-star reviewers. Let’s use that review manager and the all-stars and start building out the case, and let’s really help litigate this matter. Ultimately, you want to win or get your client the best possible outcome. Let’s not just push aside this knowledge base. Let’s start to leverage these review attorneys. That’s something that we’ve strongly recommended to our clients, and we’ve seen that directly impact the outcome of litigation, because we’re moving forward key documents to them that they’re then using.
MCC: It sounds like you get pretty heavily engaged in case strategy.
Fluss: Exactly. The law firm associates still lead the case strategy, but it’s our job to tell them, “Here’s your strategy. Here’s what you’ve identified. Well, here’s what we found. Does this fit in? Do you need to modify your strategy?” You’re not taking the lead from them, but you’re giving them the information necessary to then decide whether they are on the right path. And if they need to modify it, what can we do to help them?
MCC: Discovery has exploded in recent years. What do you see if you pull out a crystal ball, either on the tech side, the profit side or the people side? Where do you see e-discovery going in the next few years?
Fluss: I’m almost ready to stop trying to answer that question! When I first joined Essential Discovery, I went to a conference and had my first session about predictive coding. It was: Linear review is dead. Review attorneys are going away. Here’s where it’s going. It’s all going to be automated.
Six years later, we still have attorneys reviewing documents. The technology to handle the growth creates that same level of need for expertise in collections, processing and hosting. You still need that human component. I wouldn’t want to speculate past the next five years. And maybe there’ll be a game changer coming to the marketplace, but right now we’re still going to have a gap in what technology can do with the growth of data, so that gap is going to maintain the same sort of status quo.
MCC: What advice would you give to general counsel who are concerned about the high cost of discovery?
Fluss: The high cost of discovery is real and it’s in your face, but not doing it correctly has an even larger cost. If you try to cut corners, you’re going to end up paying for it down the road, whether it’s not putting yourself in the best possible situation or actually losing litigation. Corporate counsel and other company executives need to realistically look at the high cost of e-discovery, and litigation itself as well, and create a correct valuation.
I think there needs to be a push to take ECA back to what it used to be, which was actually figuring out do you have a case here. And this is where technology could help. If there’s a meaningful way to get a preview of the key documents early on, that can really help inform decisions and then possibly avoid costly e-discovery that doesn’t need to happen. If you know your case is just not there, then maybe you should be looking to settle.