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There’s a very good post on Clearwell’s e-discovery 2.0 blog about the process of bringing e-discovery in-house, or more importantly some of the questions that need to be asked during that process.

One particular observation in the post stuck out to me: “…every company today, believe it or not, has an e-discovery solution in place.” This is very true. Many companies who must scramble or shift work around internally to address a pressing matter or who automatically send any and all litigation straight to outside counsel might not characterize their approach as a “solution” (more of a default mechanism, maybe), but it is a solution, nonetheless. From that point forward, the steps and questions laid out in the post are certainly good ways to look at the in-house e-discovery process.

The statement also juxtaposes another observation in the post about in-house departments going through the RFP process and seeking an “end-to-end” e-discovery solution. These two statements, in my view, are actually directly related. Many in-house departments are not equipped to handle any significant e-discovery work, so in the past they simply sent that work to their law firm(s) because they could physically handle the review of the documents (and were already handling case strategy). Now that the in-house departments are under incredible pressure to cut costs, they must come up with a different solution, but still don’t have the resources or time to handle it internally. They want a simple, straightforward solution that they can hand off and know it will be handled in a quality, cost-sensitive manner.

I believe this encapsulates one of the most challenging issues we face in the e-discovery realm today, one that our company has spent an inordinate amount of time addressing internally and that

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There’s a great post up on the ‘3 Geeks and a Law Blog’ that frames the current discussion regarding project managers, or, more specifically, the professional background of and what potentially makes a good project manager.

We’ve discussed this topic on Lawdable before and it’s a worthwhile, ongoing conversation within law firms and other legal service providers like Counsel On Call (although no one is like us, of course). One can very quickly dive into topics ranging from law schools and their e-discovery curriculums (or lack thereof) to whether the disciplines of project management can truly be absorbed by a practicing attorney, among a host of other sidebars.

Here’s what we’d like to tack onto the conversation: excellent project management is completely dependent on the individual project manager. If you look hard enough, there are lawyers out there who are great project managers, who understand how to budget and track metrics, who know how to design and implement proven protocols -- and who have been doing this for years. On the flip side, there are undoubtedly non-lawyers who can come into a project management role, add a lot of value, and do a better job than 95% of the lawyers who currently have project management responsibility. That’s not a knock on those lawyers, but a nod to those non-lawyers’ skills.

The training PMs receive and their personalities affect the people most likely to stay lawyers in the first place. The old adage that ‘I didn’t become a lawyer to do accounting’ is true. However, those who’ve been in law for awhile also see that there are different career development avenues to pursue and to help their clients. (And who’s to say PMs can’t make partner in the law firm of the future? Clients want to work with great PMs; that can mean more business from a PM’s clients.)

Circumstances, experiences and exposure can also help you develop the skills and expertise to push you in the direction of project management. In the same manner that lawyers involved in e-discovery today may not have started with technological understanding or had any initial training; those who have been thrust into the fire might have had an interest created, and then received the training and knowledge to accomplish and even master the topic. So, too, some of those thrust into project management may find that they like it, are good at it and want to pursue it to create the necessary expertise to become premier in the field.

We’ve found great lawyers who make great project managers, but we’re also in a more unique position than, say, a law firm, for instance. Our lawyers were looking for a different way to practice law and that’s why we’ve found one another; that departure from traditional thought also helps us identify those who could potentially make great project managers. And while MBA-types might run individual departments at a law firm, it’s usually a lawyer from within their own ranks who serves as a project manager on a specific case or matter. Some of those lawyers make great PMs, but many are so grounded in traditional lines of thinking that it’s difficult to break away and innovate; great project management requires a balance of innovation and proven protocols.

That’s a long way of saying there are different ways to approach this issue, and it’s going to be a focus as more people become attuned to it. In the end, it’s great for our profession.
 

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The Judge of Zubulake fame (various decisions in 2004 and 2005 which became the handbook on e-discovery obligations and the precursor to the amended Federal Rules of Civil Procedure in December 2006), has written a lengthy opinion outlining the obligations of parties to issue a properly worded, written legal hold to employees who might be relevant to an anticipated litigation.

In late 2003, plaintiffs’ counsel was retained for a lawsuit, which was filed in February 2004. The case was stayed for a number of years and finally a document production was made in 2007. This was found to be deficient and having gaps in what should have been produced.

While the Judge did not grant defendants’ motion to dismiss the case, she did grant an adverse jury instruction, stating that plaintiffs were grossly negligent and that relevant ESI had been destroyed, which the jury may presume was favorable to the defendants. She also imposed monetary sanctions of reasonable costs, including attorneys fees for dealing with the declarations, added depositions and this motion.

So what was the evil done by plaintiffs in their preservation efforts?

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We've been privileged to get to know Chris Cotton over the last couple of years as he's become an integral part of Counsel On Call's Nashville attorney team. His stories from his time spent in Haiti are well-known in our company, and his work with the Hands and Feet Project has been a source for inspriation for many of us (at right: Chris in Jacmel with orphan Merci Dieu, which mean "good God" in Creole).

So when the earthquake struck Haiti last Tuesday, Chris instantly became a source of news for our staff through his communications with people on the ground in Jacmel and put an even more personal face on the tragedy. Chris was interviewed as part of a local news story and the HAF project has been profiled on several national media outlets in the last few days, and the stories change with each passing hour. Chris was able to break away and chat with us for a few moments:
 

What are some of the latest updates?

It’s been a really tough, but great weekend… as of Sunday morning, no aid had reached Jacmel since the earthquake last Tuesday… 40,000 to 70,000 people were cut off from medical aid, food and water for five days. But yesterday the first private planes began landing at the Jacmel airport, which was great. I think five or six were able to land during the day and they expect 25 today (Jan. 18).

How big of an area is Jacmel?

Geographically it’s not that big of an area, and it’s about 25 to 30 miles south of Port-au-Prince, but it’s only accessible by one road, which was completely destroyed in the earthquake. Jacmel is a base for about 70,000 people and we know that there are at least 5,000 dead, 20,000 to 25,000 injured, and 75% of the buildings were destroyed. So that means there are at least 30,000 people with no shelter in the community, which is really just hard to get your head around. 

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Like millions of others, we've been watching the developments in Haiti very closely and have been struck with the magnitude of the tragedy and the monumental job ahead -- in the coming hours, days, weeks, months and years.

It has been especially difficult for one of our Nashville attorneys, Chris Cotton, who helped build and open an orphanage in Jacmel, Haiti, in 2005-06, as part of the Hands and Feet Project. He has been communicating with friends in the area and the HAF website is posting updates from Jacmel; the stories are amazing, disheartening, tragic... the full range of emotions. Jacmel is completely cutoff from Port au Prince and other areas that could potentially provide supplies; the situation is truly dire.

We plan to post a Q&A with Chris on Monday, but in the meantime we'd like to pass along a link from CNN story on the HAF Project's orphanage. If you're in the Middle Tennessee area, Chris says to watch Ch. 4 (WSMV) at 6:30pm for a story they're doing on HAF and Haiti. In the meantime, we'll keep the people of Haiti and their families and friends in our thoughts and prayers.
 

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OK, this is just a different (some might say lame) way of asking what your goals are in 2010… but ‘tis the season, eh?

There’s never been more at stake in the legal profession than there is now. There’s a palpable sense of change in the air… especially concerning the new legal model of law firms and the impact it will have on the way law is practiced and billed. But I’m not one to wait around for that to truly happen, so why not start moving forward? Here are just a few of the things attorneys have to tackle in 2010:

True cost containment of legal expenses … If you’re one of the thousands of in-house managers who has taken the reigns of your budget, designed new processes, brought more work in-house, cultivated new outside counsel relationships, and engaged alternative legal services providers… well, here’s hoping that you get more sleep in 2010, because you’ve likely been busier than ever. Those who’ve undertaken the commitment to cost containment should be applauded and hopefully the work they’ve done will make life easier down the road. This process will continue to evolve for these good people, and thousands more will start down this path anew in 2010. The point: This is the new way of life for corporate legal departments.
 

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I have long argued that companies keep too much e-mail. There are numerous approaches to dealing with this problem that I have seen. First are the companies that have no policy at all. Well, actually they have as many policies as they have employees, as everyone is doing their own thing. This not only enlarges the company’s volume (and therefore cost), but it makes it very difficult to preserve e-mail for litigation or other investigations.

Second are those who have a policy but do not audit it through training or technological means. They’ve gone through the process of creating a policy but never quite got around to seeing to it that their employees follow it.

Third, there are those who have a policy, train on it initially, implement and audit but over time it becomes less important as everyone focuses on their job and no one is assigned the task of making sure there is compliance.

Finally, there are those who arbitrarily deal with their e-mail through a purely technological methodology and do not allow their employees to make any decisions about it at all.

Whatever approach describes your company, you also must deal with the issue of employees using their personal e-mail accounts to handle work e-mail. In a recent survey by Axway, 82% of employees surveyed said they use personal e-mail accounts to send large files that would otherwise not make it through their company e-mail systems. It’s not that they’re trying to hide anything; they are simply trying to get their work done and found that it’s just too much hassle to get IT to let that particular document through the system. Perhaps they even chose to have it sent via a disc of some kind but normally they need that e-mail immediately and thus resort to using their personal account(s) to access it.

This is the reality and thus has huge implications for security, record retention and litigation hold purposes. Is your trade secret and confidential information sitting in Gmail or Yahoo! accounts? Or on the personal computers of your employees? What if it’s the official record that the company has a legal or regulatory obligation to keep for a certain time period? What if that employee becomes subject to a litigation hold that requires the company to preserve that information? Can we simply put a hold on his/her shared drive and e-mail accounts at work or must we now make sure his/her home computers are impounded for the same purposes? Obviously there are privacy issues at work here as well.

The employee is usually doing this for work reasons, efficiency, etc. But do they realize the potential impact on their personal privacy if their home computer is subject to an evidentiary hold? Do the employee’s spouse and children realize that their information might be subject to an attorney reviewer looking at their e-mail if it’s co-mingled with corporate e-mail on a home computer?

If employees and companies start asking the questions and talking about these practical issues even more, perhaps we can come up with solutions that work for the reality of the world we live in. Follow Barry on Twitter.
 

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While calling 2010 the year of deletion might be over the top for most companies, it is a topic to consider during our current economic realities and the constant threat of litigation.

There is no time like the present to undertake a house cleaning of electronically stored information (ESI). Storage costs, poor organization and expensive restoration of backup tapes for litigation purposes are the norm, while at the same time there are many available tools to de-duplicate, organize and store inexpensively.

Most in-house lawyers now understand that a company’s ability to save money when litigation hits starts before litigation hits. That means having an understanding of how your company's ESI is stored and organized and proactively doing something about it. If you have no litigation hold pending that would require you to preserve certain ESI for the duration of the legal proceedings, now is definitely the time to act.

Record retention or ESI management have two parts: retain and delete. Many companies are pretty good at the “retaining” part, although they do need help implementing and organizing it. The harder part is often the “delete” part. This is true not just for the organization as a whole but also for the people who make up that organization. Many people are loathe to delete their lunch invitation e-mails, let alone anything that rises to the level of a substantive subject. It takes a shift in thinking, a shift in policy or, more often than not, a shift of money from your company to a vendor to process the ESI – and the lawyers to review it in a large e-discovery project – before a shift really takes hold.

It often takes that first million-dollar bill during the discovery phase of litigation to wake up a company executive or law department that it might make sense to deal with the excessive ESI issue. Actual money that affects the bottom line is often the only true motivator. Otherwise the expense and/or the mental capital to deal with the issue from a technology, planning and implementation perspective is often too much to handle.

Buy-in at the top is needed. Make your case for how this type of deletion and organization of ESI is critical to the company bottom line. Half of all in-house lawyers believe that their company is not ready to handle an ESI discovery project. I wonder if that’s the half that hasn’t yet been hit with huge litigation and believes that they won’t get hit with litigation this year?

2010 is fast approaching and the new year brings all things new. For many, dealing with ESI would certainly fall under the “new” category -- and makes for a great resolution.
 

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There’s almost nothing like the words ‘record retention policy’ to quickly put a group of grown adults asleep. If you’re lucky enough to be placed on the team to formulate said policy, you probably wonder who you ticked off and should remove from your holiday card list. Reminds me of the Dilbert where the boss starts a meeting and falls asleep while talking, slams his head on the desk only to wake up and ask what the meeting was about. They all said ‘the records retention policy.’

But hey, some of us actually like putting these policies and strategic plans together... they offer a lot of value when properly implemented.

I actually prefer to use the term ‘ESI Management Policy’ because that’s really where you get the most bang for your buck. While it’s important to know how long to keep certain vital records, almost nobody seems to care about the boxes piled up like the Pyramids in Egypt that you still pay monthly storage fees on. What they care about is the cost to store, identify, collect, review and produce electronically stored information (ESI).

In the old(er) days, the concern wasn’t about volume of ESI, but content. Everyone was concerned about the smoking gun e-mail – the stupid thing written that no one thought would ever see the light of day. While that’s still a major concern in this current era of extremely tight budgets, it’s not just the smoking gun that can cost the company, it’s also the mounting volume. There are real costs that must be identified and properly dealt with and managed via a policy that helps employees care about their own ESI management.

Don’t jump straight to technology for your solution, however. First, understand your company culture, where it is and where it needs to be regarding how employees create, send and store ESI. Second, create a policy that moves your company culture in the direction you want to go. Don’t try to make it all in one step; try the incremental approach. Grabbing for too much at one time only breeds unrest, and unrest breeds non-compliance. The only thing worse than not having an ESI management policy is to have one that no one follows.

Once you get the policy and the employees moving in the right direction, then it’s time to implement technology to help the company achieve its overall goals, which is cost savings through less volume, and, finally, organization of that remaining volume.

In a previous post, I stated that people and technology are both needed and must work together. Those words can be applied to most situations these days, but especially here. Training and buy-in on the part of your employees along with technology will help you achieve your goals.
 

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