March 29, 2017

Preparation = Confidence = Victory

I both love and hate it when AccessData gets to eat its own dog food. I love it because I think we sell superior products and I like to show our customers that we can utilize them to produce superior results. I hate it for the obvious reason: that we sell e-discovery software and we only need to use it in conjunction with litigation. We recently had such an opportunity and I thought it would be useful to walk through the case and highlight how our e-discovery and digital investigation capabilities played a significant role in a successful outcome.

In July of 2010 AccessData merged with Summation. As part of that merger we offered some but not all of the existing Summation sales personnel employment in the new company. One of the sales people we chose not to hire was Katherine (Kitty) Doyle. Kitty was based in California and was the international channel manager. We chose not to hire her long before we even met her because AccessData runs its international sales out of the UK and as such one of our very first decisions was that we were going to hire an international resource to cover those customers.

When Kitty learned that we weren’t going to hire her, the sparks began to fly. By September of that year, Kitty had filed a lawsuit against us claiming age discrimination. Her lawsuit claimed that AccessData chose not to hire her because she was 58 and instead chose to hire the younger Summation sales staff. I was floored by the allegation for two key reasons: First off, AccessData is highly committed to being a diverse company in all respects. The second being that at the time I had never even heard of Kitty Doyle. I think my exact words were, “Who is Kitty Doyle and what did we do to her?” I was particularly annoyed because we didn’t even fire her; we simply chose not to hire her. Nonetheless we were now stuck with litigation and we were forced to play it out.

I am not going to run through the merits of the case because I want to focus on the discovery side of the story. I will say that we won in summary judgment. What is instructive about the case is not the end result but the fact that because we had e-discovery processes in place, we were able to deploy multiple strategies to quickly and inexpensively gather the relevant data, quickly distill it to the important communications, and ultimately dispatch the case at minimal costs.

The nature of this case required AccessData to prove a few basic points. First and most importantly, that we had in fact chosen to move the role to Europe before we met Kitty. Second, that subsequent US-based hiring to cover the Canadian market – a market Kitty covered – was done only after sales in that region literally quadrupled. Finally, that no one actually even knew her age to begin with. To prove these issues we did fairly generic things. We ran key word and Boolean searches against all of the relevant custodian’s computers and emails, processed the data, loaded it into a review tool and then reviewed it. There is absolutely nothing revolutionary about any of that. What is worth noting is the importance of having a tool that is fully integrated. The tasks I just ran through can be done by nearly any e-discovery vendor, but often only by utilizing several tools, many people, and days or even weeks of work. What I think is unique about this example is that we did everything required in half a day of one person’s time. It is not an exaggeration at all to say that I asked for the data in the morning and legal was tagging documents in review by the evening.

Time really was not an issue in this case, but cost was paramount. From the onset this case appeared to lack any real merit so it was crucial to maintain very low costs. The logic of the opposing counsel is always: “If I can drive their costs through the roof they will settle.” The only defense against that tactic, given modern discovery rules, is to be prepared with an integrated discovery solution and a well thought-out process. In this case, AccessData’s software allowed the company to fight and eliminate the case for minimal cost.

The basic vanilla discovery outlined above is where the discovery process would have ended at companies utilizing competitor’s solutions. However, because our AD eDiscovery suite includes market leading investigative capabilities we were able to go a step further. As a matter of procedure, when we completed the merger, we imaged all the machines of employees that weren’t offered positions. With our technology, that is a simple press of the button. Since we had an image of Kitty’s machine we were able to get a good look at what she was doing in her last weeks/months of employment. The information obtained in that investigating was fairly instructive. Not only did it appear that Kitty was actively looking for another position, a fact she denied in her deposition, but she also appeared to have copied a fair amount of data onto a thumb drive days before leaving.

To be fair, we never needed to use this data because the case didn’t make it to trial, but having it definitely provided us with a much stronger understanding of the case facts throughout the process. This type of efficiency and depth of capabilities are the strengths of AccessData’s AD eDiscovery integrated solution. If we had utilized any number of competitive products or not taken the proactive step to perform collections, we would have struggled with this seemingly simple case.

Now I don’t want to go too far here and claim that a single case makes AD eDiscovery the penultimate tool. The test of a true e-discovery solution is its value over time and its ability to adapt to the many types of investigations that are the course of modern litigation. This case is a good example of how a fully integrated e-discovery solution with broad capabilities can positively impact litigation. AccessData’s software did this by allowing us to ignore the pressures to settle and hold strong given a near immediate understanding of the case facts. Eating our own dog food, as they say, also enabled us to see the case through without hemorrhaging legal and discovery fees.

Tim Leehealey

Tim Leehealey is Chairman and CEO of AccessData. Prior to joining AccessData he was VP of Corporate Development at Guidance Software. Prior to that he was an investment banking analyst covering the security market at Wedbush Morgan.

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Comments

  1. Darren Somsen says:

    Dear Tim,

    Thank you for the insight into how one of AD’s products perform. Informative and interesting.

    Darren

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