In the first part of this Q&A, HAYSTACKID Managing Director Larry Lieb discussed general concepts related to the Art of Custodianship, as well as how smartphones and other advanced technologies have transformed relevant procedures. Now, he explains what makes HAYSTACKID’s approach to custodial processes and collections different from others in the field, as well as how corporations can better manage their evidentiary data and devices moving forward.
HAYSTACKID: You’ve been doing this for a long time – how does HAYSTACKID’s approach to the Art of Custodianship vary compared to other vendors?
Larry: Well, because we’re a smaller practice, we are very agile. We are able to identify, test, and prove new technologies very quickly and very nimbly, and then bring those to our client who then further benefits from the advanced techniques that we’ve been developing for them.
And you do not see that as necessarily common?
Definitely not. I considered bringing my practice to some of the world’s largest vendors, but ultimately chose not to because they are essentially akin to sausage factories: Gigabytes of data go into one side, and they come out the other side as production documents, and everything follows that same path like clockwork, whereas HAYSTACKID focuses on customization.
We can, and sometimes do, handle large productions that would necessitate an industrial-like approach, but other times we have to leverage unique options to deal with conflict situations. For example, right now I have a client with 40 employees’ data that they’re collecting for review – that’s a lot of data. Forty employees essentially represent 40 different corporate entities.
In this case, we’re proposing Brainspace Analytics to help the client quickly triage that huge collection down to just what is relevant to them.
It’s that ability to architect the best solution for the client, meaning cost-efficient, and effective overall, versus having to throw the product over the wall to some operations team to do as they see fit, which they do the same way every single time, with every single client, ad infinitum.
It’s kind of like a fast-food chain versus a small, independent craft burger shop. I would describe one of our biggest competitors as the fast-food chain of eDiscovery. They’ll say “okay you’ve brought us 100 GBs of evidence, you ordered a No. 6, that’ll be $32,000.”
And your response will be, “hm, I don’t know if I, I don’t know if the No. 6 was really the best thing for me,” and they’ll respond, “well you ordered a No. 6 and you said it’d be this many gigabytes so here’s your bill.” So there’s very little to no consultation at the fast-food chain, and HAYSTACKID is pretty much the polar opposite of the fast-food chain.
We’re the people who will ultimately give you exactly what you need from both a cost standpoint and a service standpoint, consulting you through the selection process and architecting the best possible solution in accordance with your unique needs, goals, and preferences.
So the bigger vendors are not going to appreciate the fact that every project is different, whereas HAYSTACKID provides the necessary consultation and personalization, is that correct?
That is correct. Another great analogy I’ll make is, I’d call us the Mayo Clinic of eDiscovery. So you can go to some county hospital in your local area and wait in line for a really long time and then get whatever doctor is assigned to you and you hope they know what they’re doing and then they might send you off to another person and another person.
On the other hand, the Mayo Clinic is where you go to get the best possible specialists, who can therefore provide the best possible results for your complex problem. We are a highly specialized, incredibly nimble boutique operation that is capable of providing that personalized, consultative experience to our clients, and that is exceedingly rare in our industry today.
Going back to the Art of Custodianship, do you see any trends that are taking shape that will transform the way that custodians operate?
I think there will always be a proliferation of new forms of communication. What always kept this industry very interesting to me is that something like Twitter will come along and companies will start running and using it in a work situation. At the same time, they give little to no thought as to what happens when the chickens come home to roost, and all that Twitter-based evidence needs to be collected, reviewed by attorneys, and produced.
Twitter, Facebook, Instagram, text messaging, video conferencing – the modes and methods of communication are continually reinventing themselves. Then, organizations adopt the newest ones without any thought as to what happens when the data and metadata they contain become pertinent to a trial.
That’s where I have targeted my practice for a long time now. I have an intense focus on mobile communication applications like Facebook Messenger, WhatsApp, Signal, how they are being used, and which new forms of communication technology are hitting the market.
I’ve chosen this cynosure because it’s where the evidence is, and there’s not always an obvious way to get to or collect that evidence. So, that’s where my personal and professional focus and interest reside right now.
So you have worked on cases with social media already?
Oh yes, in many matters.
What is the scale today? Is social media becoming a more common target of custodial interviews and collections?
It keeps on expanding, and very rapidly. It goes like this – if you look at your own phone and count out the number of emails you’re sending and receiving, and then you tally up the text message communications, which can be WhatsApp, Facebook Messenger, iMessage, and more, you’ll see a 10-1 ratio – the ‘10’ being the texts and email representing the ‘1.’
With corporate clients, do you find that leaders are not proactively training, educating, and preparing employees on how to be good custodians with these new types of communications?
I see that a lot – a complete lack of preparation. Also, at this point, I don’t think many organizations are even aware of the threat.
When you go in to begin the evidence mapping process and discover this lack of preparation, what do you say to leaders therein?
That’s a more complex issue – it’s really a data governance question. You know, there are companies and organizations that have conquered this and have what’s known as mobile device management software running on everyone’s smartphones. That software is basically funneling the evidence that must be preserved and protected into their archiving system and actively destroying everything else.
So those information governance policies, as well as the use or lack of MDM software, will play a pretty massive role in custodianship, as well as myriad other matters pertaining to information preservation, litigation preparedness, process efficiency, and risk management.
Do you think that this element of information governance is going to become a hotter topic among executives?
It always seems to come down to pain, to be honest, or at least the experiencing of pain. If an organization has experienced a significant amount of pain from having mishandled mobile communications on company-owned smartphones, something that even went up to the CEO or the board and caused them to look bad, then they will get religion and budget for the MDM software and stronger information governance policies.
But, until people get burned, it seems as though there is an extreme and consistent lack of will to spend significant money and time to prevent the calamities they’ve never before experienced. Having said that, I personally keep fire extinguishers in my house, and I also have car insurance, home insurance, and health insurance, so that’s my approach.
I have never experienced a fire in my home, but I still keep an extinguisher on hand in case. I haven’t had an extreme need for insurance, but I maintain policies in case.
It would behoove executives to think the same way, right?
Exactly. I mean if they do not, they will inevitably end up wondering “why didn’t we buy a $15 fire extinguisher, we could’ve stopped the fire in the quarter of that room there instead of having had our entire office burn down, destroying all of our assets.”
Are you ever in a situation where you go in and get these matters in order before the company gets stung?
Yes, we’re working on some consulting right now just in that area, data governance. We go in and work to identify what’s important and should be protected, and establish steps we can take to destroy everything else, which literally only represents liability for the company to possess.
And what are the advantages of relying on HAYSTACKID?
We have the background necessary to prescribe best practices based upon our lengthy experiences of witnessing client outcomes. We see our clients either have good or horrible experiences due to their sophistication or lack of sophistication with respect to data governance. Those experiences, and being on the ground level, in the trenches, during them, endow us with the knowledge and insights necessary to help our clients improve in this regard.
We thank Larry for his time. Come back soon for more insights from the HAYSTACKID team!