By Damian Durrant, JD: Rise of standards & certifications key to e-discovery partner selection - Part 1

18 Sep 2014 12:33 AM | Chere Estrin (Administrator)

We are finally seeing the emergence of industry standards and professional certifications as the e-discovery industry continues to mature. The recent California Bar advisory opinion on e-discovery competency drew much attention and is the most recent example of the trend.

A corporation or law firm selecting an e-Discovery or Discovery Management partner should determine if the partner has enough qualified, certified personnel and implements industry standards into their practice."

However, it is surprising how even e-discovery RFPs from the largest corporations and most sophisticated buyers rarely address certification and standards requirements. If the federal rules amendments regarding e-discovery that came into effect in January 2007 were a watershed moment, then certifications and standards have perhaps been slow to emerge.

Part one will survey certifications and evidence of competency for individuals; in part two I will review emerging standards at the organizational level, including the elusive matter of "best practices".

Individual certifications for e-discovery

Individual certifications of competency in e-discovery are on the rise, however, there may only be a few hundred professionals certified thus far.

It is important to distinguish between true certifications from industry bodies independent of specific e-discovery vendors, and certificates issued by e-discovery service or software providers. Obviously the former are more valuable than the latter.

Any would-be client should require independently certified individuals across the staff of the prospective partner and in the service delivery teams assigned to their work.

  • The Organization of Legal Professionals (OLP) offers a widely respected certification called CeDP (Certified E-Discovery Professional) and the CLSS (Certified Legal Support Specialist) certificate. OLP also now offers an E-Discovery Project Management certificate. The Association of Litigation Support Professionals (ALSP) in lieu of developing its own certification, recommends the OLP certification to its members.

  • Over three hundred people have the CEDS qualification.

Both OLP and ALSP in their mission statements emphasize standards and certifications, but ACEDS only secondarily. Of course establishing standards and certifications is challenging for even much larger professional organizations.

OLP and ACEDS reportedly utilized teams of experts to develop bar-like multiple choice exams that try to cover the complete Electronic Discovery Reference Model (EDRM), from information identification through document production. As such, OLP and ACEDS are the leading providers of e-discovery certifications, but expect other non-profit organizations to enter the certification arena soon.

That being said, there is a general opinion that the certifications available are perhaps not yet of the quality or relevance seen in the IT or forensics field (see below). It is still relatively early days for e-discovery certifications.

There are a host of forensic qualifications that address the “left side” of the EDRM, specifically data preservation, collection and forensic analysis. The most popular and highly respected certifications are the Certified Computer Forensic Examiner (CCFE), Certified Computer Examiner (CCE) and Certified Fraud Examiner (CFE), which are offered by independent industry groups.

Two recognized expert organizations in the field also provide in-depth respected training courses: Arkfeld’s eDiscovery Education Center and Ralph Losey’s E-Discovery Team. Also well regarded are courses provided by the E-Discovery Training Academy at Georgetown Law Center.

Vendor provided certifications

E-discovery software providers have been providing courses and certifications in the use of their software tools for many years.

While many are undoubtedly thinly disguised marketing devices, a few may have reached the status of genuine skill certification. Certifications tend to focus on a single software suite for a specific phase of the EDRM such as collection,

 processing, predictive coding or document review. A couple of e-discovery vendors offer a general competency training program with one going so far as to establish a subsidiary company to issue certifications.

Although vendor created certifications vary in content and quality, it is valuable if the service provider has personnel certified in the software used in day-to-day e-discovery work. There are too many software providers offering courses to summarize here, but following are the most respected.

  • Relativity by kCura is probably the most widely used document review software platform. kCura offers five different certifications. Although designed to show competency in specific review and analytics components, the certifications have become credentials of broader e-discovery knowledge and practical skills. The Certified Relativity Administrator (CRA) is an important industry certification, along with the CRA – Analytics which is particularly rigorous. The Relativity Certified Sales Professional (RCSP) certification is a foundational level qualification. In April, they introduced the Relativity reviewer certification.

  • Guidance and Access Data are companies that provide exams focused on data forensics and collections but which also require a broad e-discovery understanding. The Guidance EnCEP exam claims to tests proficiencyin their collection software as well as in “e-discovery planning, project management, and best practices, spanning legal hold to load file creation.” Access Data offers the AccessData Certified Examiner (ACE) and the mobile forensic qualification AccessData Mobile Examiner (AME) certifications.

Applying general project management principles can be vital for effective e-discovery and discovery management.

The Project Management Institute (PMI) offers eight different project management certifications. Most widespread is the Project Management Professional (PMP) qualification and the entry level Certified Associate in Project Management (CAPM). A separate organization (IPMA) offers four progressively harder IPMA series certifications.

Certifications in related disciplines

Certifications that are not specifically for e-discovery can also demonstrate relevant skill sets to any potential client.

The Association for Information and Image Management (AIIM) and Association of Records Managers and Administrators (ARMA) work in the overlapping disciplines of enterprise records management and information governance.

  • AIIM offers a Certified Information Professional (CIP) program which is relevant to e-discovery competency.

  • ARMA offers the Information Governance Professional (IGP) certification and recently introduced the Certified Information Governance (CIG) qualification.

  • There is also the Certified Records Manager (CRM) qualification from the Institute of Certified Records Managers (ICRM).

As time moves on, qualifications in the other related areas such as data security and privacy will likely be increasingly relevant to e-discovery, but are beyond the scope here.

However, given recent high profile data security incidents anyone qualifying an e-discovery vendor would want to see staff with CISSP, CISA, CISM and similar certifications.

Attorney e-discovery certification and competency

There are still no certified e-discovery specialist qualifications for attorneys similar to the twenty plus law practice areas recognized by the American Bar Association (ABA). This is a gap in law practice specialization which will likely be addressed by the ABA in the near future.

Certain e-discovery Continuing Legal Education (CLE) programs authorized by state bar organizations can indicate expertise, but the content and quality of CLE seminars varies widely. There are about a dozen law schools offering e-discovery courses for credit mainly focused on legal rules. But Bryan University and Hamline University, for example, offer graduate certificate programs in e-discovery with a technical and legal focus.

There are still no certified e-discovery specialist qualifications for attorneys similar to the twenty plus law practice areas recognized by the American Bar Association (ABA). This is a gap in law practice specialization which will likely be addressed by the ABA in the near future"

However, the recent California Bar proposed advisory opinion concerning e-discovery may be the start of a change for attorney certification. It describes a broad duty of competency in e-discovery that extends to the ability to "analyze and understand a client’s ESI systems and storage". This is a demanding requirement and if it cannot be met the attorney must use counsel who is competent or decline the representation.

An increased demand for e-discovery certifications for attorneys is sure to follow in California and nationally.

As for law schools, in a recent survey 124 of 193 schools offered no e-discovery curricula at all.

Finally, let’s not forget that your e-discovery services provider should have a healthy proportion of attorneys and JDs rather than just software, project management or technical personnel. It is also useful to probe professional credentials to see if team members have ever practiced law, worked in litigation support in law firms or at least participated in major document reviews.

Industry representation

One should also assess evidence of substantive contributions to various industry bodies when selecting an e-discovery or Discovery Management partner.

Finding active members of EDRM participating in one of the many EDRM working groups, or perhaps a co-author of a publication can be a useful sign. Similarly, active participation in the Sedona Conference working groups and committees can be a valuable indicator of expertise.

A cheat sheet summary of certifications to look for

Inventus takes individual and industry qualification very seriously, has an unusually high proportion of certified professionals and actively promotes continuous professional development.

There is, however, a confusing array of individual qualifications and acronyms in the e-discovery field making evaluation of e-discovery providers by potential clients challenging."

Accordingly, here is cheat sheet of key certifications for which to look:

  • Independent e-discovery associations: CEDS, CeDP, CLSS

  • Independent organization forensic qualifications: CFE, CCFE, CCE

  • Credible e-discovery software providers: RCA, RCA Analytics, RCSP, ACE, AME, EnCEP

  • Respected experts: Arkfeld, Losey courses

  • Industry bodies: active participation in working groups and/or authorship of EDRM or Sedona Conference

  • Project Management: PMP, CAPM, IPMA

  • Independent associations in records/information governance: CIP, CIG, IPG, CRM
    Cyber security CISSP, CISA, CISM
  • Vendor issued certifications in software used by the e-discovery service provider

Part 2 will examine standards and certifications bearing on e-discovery competency at the organization and service delivery level.

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