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There’s a very good post on Clearwell's e-discovery 2.0 blog, "How To Reduce Electronic Discovery Costs," that breaks out the discovery process into sections of potential cost savings. It’s a good overview and it’s evidently the first part of a series.

The post reinforces a few of the issues we’ve discussed here, mainly that to reduce discovery costs, you should focus on trying to review less data and review that data faster. There are a couple of recent examples I’d like to share that show just how much money can be saved in implementing this approach.

First, a client called with what seemed like a good-sized matter – more than 70 gigabytes of collected ESI that needed to be reviewed and produced on a tight deadline. The reality was that the data had not yet been processed, culled, or de-duped; so we immediately knew that there were opportunities to dramatically reduce the amount of data to review. The combination of the right technology (coincidentally, it was Clearwell’s early case assessment tool), the right hosting company and good project management paid off on that case. The original 70 GB was reduced to less than 5 GBs of data that required review – a 93% reduction. Our team of attorneys was able to complete the review of this data within days versus weeks and the law firm was able to meet its production deadlines at a fraction of the cost of traditional methods. Success stories such as these are very common when it comes to reducing data.

The other example is a client whose discovery we’ve handled for the last 12 months. We have project managers and several attorneys dedicated to their matters, and what we’ve seen is that with each matter that comes in the door, the process has become increasingly efficient. Because the review and quality control workflow had already been mapped out, and because the team was already familiar with the client’s data, and the project manager had established relationships with the company’s internal IT contact as well as the company’s preferred review software vendor, those usual start-up measures and learning curves are consistently avoided. The result has been a repeatable process, a shortened timeframe to begin the review and higher review rates once the review begins; in fact, review rates on the first matter were more than double what the company was accustomed to and have increased an additional 50% from the first matter to the most recent. The best result was that the client saved more than $1.5M during this handful of matters.

These examples show that if you have the right processes in place, the knowledge and expertise of the right technology, and the relationships with superior hosting companies and vendors, you can save the time and expense of reinventing wheel for every matter.
 

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The main subject matter of this blog is to discuss best practices or recognize innovative happenings in the legal profession; despite our best efforts, it’s sometimes difficult to stop for a second to write about something or want to write about it when it seems promotional of our company. I considered this yesterday as I was reviewing the status of an interesting new assignment we’re working on, and there are a couple of items I felt were worth discussion here. So here we go ...

Just last week, a team of approximately 20 Counsel On Call attorneys and paralegals -- working remotely from five different cities across the country -- began a project in which they are assisting a corporate client by reviewing and updating all of its vendor contracts before the end of the fiscal year. Each is a great attorney with significant contracts experience in the client's industry (I think the average is around seven years of experience), but what is especially noteworthy about this matter is that several boundaries have been knocked down. It truly is about good lawyers wanting to work with good lawyers, trusting a process and not necessarily taking the road most traveled. The focus is on communication, not location; the qualifications of the attorneys, not the name of the place where they work; and the track record of the leadership and management of the team, not just the bullet points on a resume. This results in the client's ability to get the work done efficiently, access a much larger talent pool and keep a tight hold on costs.

Specifically to the latter point – and we have certainly learned a lot from our work in the world of e-discovery in this regard – good project management and team leadership are essential. Anytime there are this many people on a team, multiple work sites, and tight deadlines, it is imperative to have a strategy in place and implement it. That sounds easy, but I think anyone who has been involved in team-based assignments understands that it takes a great project manager and/or team leader to pull this off. There are always changes; there is always troubleshooting; it is never a completely smooth ride. You need to be able to have a core strategy that can move forward without getting derailed when adjustments are needed. The leadership on the matter matters, and that’s why I'm very proud that we have a great group of leaders who can handle these types of assignments and make our clients’ lives easier.

There’s certainly more than one way to skin a cat, and it’s exciting to be a problem solver in that regard.
 

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In the summer of 1986, Congress found itself in the grip of confirmation hearings for a new Chief Justice and a new Associate Justice for the Supreme Court of the United States. Warren Burger had retired to (ostensibly) serve as chair of the Constitutional Bicentennial Commission; Justice Rehnquist was nominated to move to Chief and Antonin Scalia to take the junior-most position on the Court.

I watched those hearings with much interest, not knowing at the time that later that year I would become one of the Court’s newest hires. I would assume the role of Staff Counsel shortly after Chief Justice Rehnquist took on his new position.

In times like these, I’m often asked about the confirmation process and what I remember of those “battles” in the mid-80s and about the atmosphere in the building (“Was it abuzz? Was it the only topic of conversation?”). During my three-plus-year tenure in the Staff Counsel role, I witnessed two additional battles – calling them “hearings” is a misnomer – that of Robert Bork (unsuccessful) and of Anthony Kennedy (successful). If I remember correctly, Douglas Ginsberg (poor guy) never made it to the hearing stage.
Of course the justices never said anything about the hearings or the nominee; even Justice O’Connor, who often rode to work with me because we lived near one another, was mum on the topic. The closest I ever got to a statement about the hearings was a comment on Bork’s notoriously scraggly beard. The court staff, exhibiting its historically insular nature, was similarly quiet. No one wanted to be on record commenting about a potential new boss, or probably more accurately, you simply did not discuss those matters at work.

Law clerks were another matter entirely and the regular Thursday evening casual get-togethers were often filled with analysis and opinions when a nominee was being vetted. I also attended an anti-Bork rally – solely to observe – and stayed out of sight in the back for fear of being seen or worse appearing on the news, a potential employment-ending event I'm sure. (The button I snagged at the event remains one of my favorite political mementos, however.)

Since my years there, the Court has almost completely transformed. Judge Sotomayor’s hearings are the ninth confirmation event since my time there and I have been caught up in the drama and pathos of each one. Here are a few things I’ll be looking for during the hearings:

• Will anyone ask questions about any of the thousands of decisions she has authored or is this all about speeches, personal matters and grandstanding?
• How she will explain the statements that are currently all over the mainstream media?
• What role, if any, will her ethnicity and gender play in the hearings?
• Will any of the senators discuss her diabetes and other potential health issues?
• How will the Committee function without the normally verbose Joe Biden?
• I just want to watch Arlen Specter. From top dog to lowest-ranking democrat, there has got to be something of interest there.
• Sen. Sessions was passed over for the Federal Bench in 1986, in part for being “racially insensitive.” Will this shape his questions? Will we be able to tell?
• What will be the most asinine line of questions and the easiest lot?

I’m ready for this bit of political theater and suggest you soak it in as well. We could see a couple more opportunities in the next few years, but who knows? I say don’t miss the chance.

It seems, if you believe the pundits, that Judge Sotomayor may soon be Justice Sotomayor. No one can predict what kind of Justice she will be and those who try may be surprised (see: Blackmun, Stevens, Souter et al). One thing is certain if she is confirmed: she will be assuming one of the most select and revered positions in our nation. I wish her Godspeed.

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This is our final recap from Discovery Symposium 1.0. If you would like more information on the event or to inquire about attending in 2010, please email us.

As more corporate legal departments are looking to bring discovery in-house, this panel was of keen interest to attendees.

What was very striking was how the panelists – an incredible group of leaders who really know about bringing matters in-house and managing the discovery process – have truly become knowledgeable about their respective companies’ IT departments. They're very familiar with IT -- something that likely could not have been said of most attorneys even just a few years ago. This sheds a little more light on the demands of the discovery process today.

Even though each of the panelists work within a large company with substantial IT departments, it was clear that the best practices they brought with them could apply to companies of any size. Creating a team often means including legal, IT, human resources, operations, outside partners – whoever touches the company’s data on a regular basis. And this team helps guide and monitor progress from through collection, production and review.

It’s also worth mentioning that the attorneys on this panel have collectively saved their companies tens of millions of dollars on the discovery process in a relatively short period of time. Talk about demonstrating the value of the legal department ...

Creating Your Own Discovery Team
Panelists: Senior attorneys from Fidelity Investments, Cox Communications, Hospital Corporation of America (HCA), Georgia-Pacific
Moderator: Candice Reed (Executive Director, Counsel On Call)

Summary of Dialogue
IT staff is critical to the team as well as representatives of other departments specific to your business. Know the people on your team; trust them. Know where the data is located. Know your systems. Trust your company knowledge, which surpasses that of a law firm.

The discussion began with a statement: E-discovery is a management task. Those in charge of discovery cannot be afraid of technology, must serve as traffic cop and coordinator, and need to be a “techie” who can talk to lawyers. When choosing members for your discovery team, it’s about 1) Having the right people on the team, and 2) Trusting your own judgment that you have put the right people on the team. One panelist said her team meets weekly.

Another panelist said she received incredible pushback from her outside law firm when she decided to build a discovery team in-house. Her team includes attorneys with employment and patent experience, a paralegal, representatives from the IT department, as well as a person from the legal department dedicated to e-discovery (who has since been moved to another department and not directly replaced). The team meets once a month.

Another panelist put her team together when in-house e-discovery experience quickly surpassed that of the company’s outside counsel. The core team consists of her, representatives from the IT department, as well as an outside consultant. Other team members are attorneys with commercial, labor, and insurance experience and representatives from Records Retention. Since three-quarters of her company’s corporate employees are members of the IT department, it is important to have everything IT-related documented – how the department is organized, who reports to whom, detailed protocols, and the location of specific data. This information also is in the company’s E-Discovery Manual, which is constantly updated. Due to an increasing number of matters, the panelist wanted to create a “thoughtful and consistent approach to review.” After each project, the team would discuss what data was collected, what part(s) of the process worked and what didn’t, and even examined the overall cost. Perhaps most importantly, they looked at what could be done to make future matters cost-effective. In order to better predict future costs, her company partnered with Counsel On Call, whose team handles several parts of the company’s discovery process, to find a software vendor that would do just that.

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This was probably the most animated session during the two-day event - maybe it was the cocktail reception and songwriter's night that was to follow.

More likely, it was the issue at hand. The in-house attorneys in the room were all under at least a minimal amount of pressure to contain costs, and everyone had clearly examined their outside counsel relationships recently. The panelists had each taken different steps to modify their relationships with outside counsel, and each seemed to be pleased with the direction these relationships were heading.

Working With My Law Firm: The New Dynamics
Panelists: Senior attorneys from International Paper, SunTrust Banks, CVS Caremark
Moderator: Candice Reed (Executive Director, Counsel On Call)

Summary of Dialogue
Themes: Make your voice heard with outside counsel; We hold the power; We often know more about e-discovery than law firms do; Law firms need to budget/plan and work with the vendors we choose

Panelists began the session detailing how they, and many in the legal profession, believe that the law firm model is broken. The dialogue with the audience began immediately once this subject was broached, and many shared anecdotes about their relationships with outside counsel.

With that framework, one panelist said it’s important for a law firm – even firms you’ve been working with for years – to know you will walk away if their pricing or services are not inline with your needs. His department has moved to bidding out all of its work, and every law firm knows that there are at least two or three other firms bidding – and this has changed the way law firms look at the company (in a positive way). It has not changed the quality level of the work they receive (also positive).

Another panelist took this further and stated that involving her law firm in the decision-making process on the company’s e-discovery was not the best decision. The firm’s e-discovery committee was not up to the task, they did not have a disciplined approach and said that no matter who reviewed the company’s documents (namely: discovery attorneys), they were going to re-review them in order to sign off on the agreement.

Panelists them reiterated that in-house counsel must be willing to say, “Give me what I want” and stand up to law firms when necessary.

One specific anecdote that was shared with the group involved a recent conversation with a law firm partner, who was leading a company’s litigation strategy. The attendee loved the value he was getting from that partner, even at $500 per hour. But what he did not like – and what he wanted the partner to understand – was that along with every hour in that partner’s time came another $600 per hour in two junior associates a paralegal.

Another panelist said that we are in an evolutionary period right now, and that law firms must get their value proposition in order. He calculated that his company pays its in-house attorneys $150 per hour; if a law firm associate is doing work for his company, it needs to be at that price or less or it’s not worth it – they will do it in-house or use another vendor. Another panelist said a good practice is to staff a department at 80% of volume at $150 per hour.

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It was clear from the onset that attendees were eagerly awaiting this panel, and that Mr. Efkeman, Mr. Lisi and Mr. Stout were the right attorneys to answer the questions before them.

There was great dialogue between the panelists and the audience, as many attendees were either currently in the software platform analysis process or considering purchases for their in-house dpartments.

Session II: De-dupe, Near Dupe and Being Duped: Software Decisions Good and Bad

Panelists: Senior attorneys from FedEx Express, Fidelity Investments
Richard Stout, Director, Litigation Support Division, Counsel On Call

Moderator: Dennis McKinnie, Executive Director, Atlanta, Counsel On Call

Summary of Dialogue
Themes: Review less data, and do it faster; Establish a good relationship between your legal and IT departments and ensure both are speaking the same language; Purchasing software is costly, and those decisions should be carefully considered, especially in an environment in which there is much consolidation currently -- but a purchase can save time and money in the long run; “Try before you buy.”

The panelists agreed that limiting the amount of data to review was paramount to containing costs. They spoke about the importance of Early Case Assessment (ECA) tools, specifically mentioning Clearwell and Trident (by Wave, a de-dupe/culling tool).

As ways to reduce discovery time and costs, Richard Stout (Counsel On Call) echoed the dialogue about reducing the volume of data to review and discussed how to review the data faster. Implementing the right technology and correctly managing the process are central; the volume of data to be reviewed can be reduced by implementing a Comprehensive Records Management Program (including an effective document retention policy), targeting the collection (searching key custodians, date ranges, specific terms), culling and de-duping data, and using ECA tools. Mr. Stout also mentioned companies with project managers available 24/7 as an important factor in selecting software.
 

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There was a lot of very interesting dialogue at Counsel On Call’s Discovery Symposium, and one (overarching) topic clearly on the front burner was retention, holds and the collection/preservation of documents -- and the internal processes and logistical challenges surrounding these often laborious tasks.

This will be one of our longer summaries from DS1.0’s four main sessions; more will be posted Wednesday.

Good Policies for Retention and Holds; Standards of Care in Preservation and Collection
Panelists: Senior attorneys from Equifax, FedEx Express, Hilton Hotels
Moderator: Anne Whitaker (Vice President, Counsel On Call)

Summary of Dialogue
A properly developed retention program can be a useful tool for reducing the cost associated with document review and other discovery-related matters. The preservation of appropriate data is one of the most pressing issues facing litigation managers today.

Panelists discussed eight basic steps to developing a program that is reasonable, defensible, and practical:

1. Identify when the preservation obligation begins.

Every company has different needs that must be addressed.  One panelist said a preservation obligation may begin with, for instance, an internal employment investigation. It does not begin when a claim is filed for lost goods. Another company begins the process if there is intent to initiate litigation. The in-house attorney asks, “Is this meaningful? Credible?” It’s a judgment call.

2. Determine what ESI (electronically stored information) must be preserved. 

The main question to ask is, “What do we need in order to win or defend this case?” A map of the IT landscape is needed; therefore, a close relationship must be developed between legal and IT and a common language between the two established. It is also important to define “necessary business records” and in some companies’ legal holds, this term is defined and a list of triggers provided (such as an EEOC charge or knowledge of a complaint filing). Another panelist mentioned that custodians must be identified prior to determining what ESI must be preserved and posed the question of whether companies ask custodians to “give him what they’ve got” or if it is sometimes better to retrieve materials.

In terms of what goes into a hold, one panelist said that two pages is too long for a litigation hold, and to be concise (but possibly attach the subpoena to the hold just to be sure to cover all bases). Several panelists suggested including "warnings" in the holds, such as "do not share any information in this hold or you will be in violation of company policy" or something to scare custodians into compliance. Another attendee suggested web-based training for custodians prior to being subject to their first litigation hold.

3. Who is in charge with respect to technology?

Staff from IT, security, and legal are involved, but most agreed that someone from IT manages the effort. All processes and procedures are in writing in order to keep communication consistent. Important to be consistent.

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8:25am
What a day yesterday was here at the Discovery Symposium in Nashville - my brief posts here can't do it justice. The programming ended with an incredible discussion about the new dynamics of working with law firms ... Brian Edwards (SunTrust), Brian Cadwallader (International Paper) and Jennifer Molinar (Caremark) share some incredible insight and experiences with the group, and not surprisingly this led to a very spiritied discussion. Possibly the most interesting tidbit was regarding the bidding out of every significant matter; Brian Edwards spoke about how beneficial this has been and how his firms understand that SunTrust will walk away if they aren't getting the price/services they're after. The group was intrigued by this and asked several pointed questions.

Some of us (namely me) are probably still a little groggy after enjoying the evening's songwriter's night ... Don Schlitz, who has penned 24(!!!!) No. 1 hits, was kind enough to entertain us. Don is a friend of one of our attorneys, and his wife is also an attorney -- so he had a steady stream of lawyer jokes ready for us, which is always fun.

I'll post more later today...

4:15pm
Everyone is on their way home now, probably somewhat exhausted after another substantive day to close out the Symposium ... we started with a powerhouse panel -- Sue Dyer (HCA), Marty Mazzone (Fidelity Investments), Heather Munday (Georgia Pacific) and Kristen Weathersby (Cox Communications), moderated by Counsel On Call's Candice Reed -- discussing how to create your own discovery team. Over 2.5 hours, these women really broke down how their processes work, who is involved, the challenges they've faced, mistakes they've made and what's most important. Each panelist was asked "If you're just now starting to assemble your discovery team, what would be the first thing you would do?" The unanamous answer was "identify the person in IT who is going to be by my side throughout this process and make things happen." These women were very, very impressive as a group and individually, and as I remarked to someone: "You can see we have some great resources to learn from here at Counsel On Call." We were really pleased that so many people got to hear the information/opinions that we have access to every day.

And that seemed to be a common theme ... our post-event survey responses indicated that there haven't been many (if any) events like this one, that the program was relevant and informative, and truly in the 'best practices' mindset. My biggest takeaway is that in-house attorneys are genuinely excited about the value they can provide to their company in the discovery realm, and many shared some great stories about the reactions they've received when showing the cost savings of the processes they've implemented.

A great event all around ... we'll post some of the best practices that were discussed during the event soon.

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Greetings from the packed Discovery Symposium!

If you're not follwoing Dennis McKinnie on Twitter, you can do so here: www.twitter.com/dmac1957. Dennis will tweet periodically from our meeting site and is leading a panel shortly.

I will continue to update this post today and tomorrow as interesting tidbits arise, so please check back and refresh your screen.

1:15pm CST
Our keynote speaker at lunch was Cheryl Mason, VP of litigation at HCA, who is incredibly knowledgeable about the litigation process and its role at HCA. She detailed how HCA's approach -- when they started to really create solutions regarding e-discovery several years ago -- was to create a defensible process, not necessarily a perfect process. And even if HCA's process isn't perfect, it is kept in the perspective of what is best for the company -- and where e-discovery fits into its priorities. Her level of knowledge and her calm deameanor are 'points of light,' as COC President Jane Allen says.

We're getting into the Retention/Holds & Preservation/Collection panel now with attorneys from FedEx, Equifax and Hilton Hotels. More updates soon.

4:15pm CST
We just finished the 'Software Decisions' panel, which I was very pleased to be a part of. Leading/directing the dialogue were Edward Efkeman (FedEx Express) and Mike Lisi (Fidelity), who have both been tasked with handling vendor relationships with all types of software companies. What was most striking -- and probably most encouraging for our guests, many of whom are at different stages of their software selection processes -- was that both FedEx and Fidelity were able to demonstrate a high level of value to their companies in going thru the processes. They clearly knew a lot about dozens of vendors, their capabilities, and how they could help their respective companies. They each spoke about the value of the IT department and good project managers -- and not letting information beyond their firewall. 

There were probably 25 questions from the audience, so this is obviously a hot topic. We'll have to post a more thorough recap next week.

The 'Working With My Law Firms' panel is off and running, then it's off to the Country Music Hall of Fame for what promises to be a great songwriter's night. More to come. 

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