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Who doesn’t love an A-Team reference? Let’s get to the backstory. …

On September 26, Ken Koch (Managing Director, KPMG, LLP) and I had the privilege to speak to a roomful of healthcare and compliance lawyers on the subject “eDiscovery: A Tactical Approach to Managing Risk and Reducing Cost” as part of the Fraud and Compliance Forum, co-sponsored by the American Health Lawyers Association and the Health Care Compliance Association.

The subject matter was straightforward: why is planning for e-discovery so important? We started with examples of how e-discovery costs are directly impacted by handling it well, doing it just okay or doing it poorly. The cost can be many multiples more if handled poorly versus handling it with planning and forethought. Volume and types of data are huge drivers in the overall discussion of costs for e-discovery; other factors include record retention plans, discovery workflows, record collection initiatives (whether overly broad or more targeted) and search and culling methodologies or technologies utilized.

To the readers of this blog, none of this is necessarily new information. But one point in particular – that the review component of the EDRM model is often referred to as “the most expensive piece in the process” – is where I would like to diverge. During our discussion, I argued that the steps leading up to the review actually have more impact on overall cost of the review project: how a company deals with documents from a retention perspective; how it prepares and plans for the project; how the company targets its collection; and how the technology and methodology of culling and searching the data are bigger components of the overall cost and will directly impact the volume, time frame and budget of the review itself. Stay with me for the A-Team analogy. …

Being proactive on all of these steps is key. Waiting for litigation to hit before deciding on how to send a legal hold or to start training internal IT resources on the preservation (and perhaps collection) of data will only serve to increase overall project costs. Getting IT, Legal, Compliance, and Retention folks in the room to deliberately plan an e-discovery response before litigation hits will save a lot of money. Topics could include data mapping and choosing technology and review partners, or simply getting the IT and Legal departments to list out the steps each will take upon the sending of a legal hold notice.

When the review itself begins, the use of a core team of attorneys who are dedicated to the client over long periods of time and on multiple projects will enhance efficiency and contain costs on all subsequent review projects. This dedicated team will help provide guidance on each subsequent project for culling techniques, familiarity with your company acronyms, privilege terms, in-house and outside counsel names and the ability to track metrics will, working together, provide the most cost-effective review project.

Being proactive takes time and money on the front end, but that’s the short-term view. These costs will be recouped tenfold when you’re hit with your next e-discovery project and put the plan into action, so it’s time and money well spent. And when successfully implemented, maybe you’ll have the inkling to utter that famous Hannibal Smith line (George Peppard version, of course) from the A-Team: “I love it when a plan comes together.” Cigar optional.

Maybe we should explore who represents the Face, Murdoch and B.A. Baracus characters. ...
 

While the credit and debt crises and the political bickering in Washington have sent markets onto yet another roller coaster ride (and disgusted most of us) -- and on the heels of an interesting article in the Wall Street Journal on in-house hiring practices -- it’s worth revisiting the impact the last recession had on the legal marketplace – all of three years ago.

At that time (2008), law firms were just truly beginning to feel the burn of hiring masses of high-paid associates – the going rate in large markets was $160,000 for a first-year, but much of the work first-years were expected to handle (see: e-discovery) was already going away. When the economy’s bubble burst, the effect was quick and uncompromising: corporations instituted immediate hiring freezes, put off litigation and other large and expensive projects as long as possible, and there were dramatic reductions in legal spend. That was the whammy that sent giant and mid-size firms alike into a state of layoffs, mergers and dissolutions, as well as hourly rate reductions… which, of course, was soon followed by masses of news releases about alternative fee arrangements and value pricing for clients. It was what I have heard some refer to as the “we get it, you need to cut costs, trust us we can do it” age.

The reason for much of this was the movement by corporate legal departments to flesh out internal processes while operating on a very lean budget, which resulted in the identification of resources that could produce good work at a reasonable cost. In the fall of 2008, I spent many hours with our corporate clients working on alternatives to laying off in-house staff, and those sessions created a number of innovations in how some of the work gets done. Many of those innovations have “grown up” and will help those legal departments weather whatever storm may come their way in 2011 and beyond.  

The results of this maturation process have been outstanding in many instances – better communications, workflows and use of resources, a better work product, close partnerships with service providers, a more strategic use of outside counsel, and, ultimately, millions of dollars in savings. The reason: they (and we) gained a better understanding of the value of their legal work and how to appropriately allocate it, and business decisions -- not just legal decisions -- became a vital criteria for structuring work. Many corporations have now permanently instilled these processes and philosophies into their everyday practice and are well prepared to face a difficult economic environment if it comes again. While it might not all be caviar and champagne, they aren’t going to have as bumpy of a road when they had to lay down the law with their legal service providers in 2008. This is good news for everyone.

If anything, a double dip recession will only solidify that legal work is handled differently now than it was in 2008. It will prompt some corporations who might not have been pushed over the edge three years ago to further explore and develop new ways of handling their matters from top to bottom -- and there are plenty of existing frameworks to draw inspriation from. The values are a lot more defined. But most relevant to this post, legal work is a collaborative process and there are partners throughout the lifecycle of all legal services that can be effective, whether it be a piece of litigation, an acquisition or everyday contracts negotiation… and it’s clear that it's no longer a world dependent on one partner and there is no lone, single way of delivering legal services.
 

Social media is here. You know it from your personal life. You know its usage from political uprisings, natural disasters, other world events and the constant call to “weigh in” from news outlets or broadcast programs. And everyone wants to be your “Friend.”

It’s certainly growing in the legal community, too. In 2008, the ABA conducted a study that found that only 15% of lawyers used social media. That number went up to 56% in 2010 and no doubt continues to increase.

If you ever want to see an in-house attorney’s face lose its color, just bring up the subject of a company’s employees having free reign on open social networks anytime, anywhere. But that’s where we are, so now it’s time to discuss its impact in the business and litigation environments to see how corporations need to prepare for its proper usage in the ordinary course of business and prepare to deal with it in the inevitable litigation that will involve it.

That’s why this year’s first Discovery Symposium 3.0 panel discussed the impact of social media. The key factor is that everyone’s doing it, so there’s lots of it – whether on LinkedIn, Facebook, Twitter, foursquare, YouTube, photo-sharing sites, blogs or the dozens of other outlets most attorneys don’t even know exist. Businesses need to become savvy in the areas of usage policies and preserving and collecting this ESI as it becomes necessary for litigation, and to understand its impact on the overall costs of litigation. The E-Discovery 2.0 Blog just posted about these issues in particular and click on for more thoughts from the DS3.0 panel...

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That was the comment that got the most gasps from attendees of Discovery Symposium 3.0, our annual event for general counsels, directors of litigation and e-discovery managers.

The select group of attendees – approximately 50 senior attorneys from 40 corporate legal departments – come together to discuss the challenges they’re facing involving e-discovery, solutions we’ve collaboratively executed, and share stories about technology tools in the marketplace and different approaches with outside counsel, among other topics. The full agenda can be seen here. It’s a highly engaged and interactive group that has proven to consistently identify numerous best practices in the discovery realm and truly cares about seeing one another succeed.

Now, back to the byline… one of our attendees, from a Fortune 100 company with an extremely knowledgeable legal department that has taken the majority of its e-discovery work and processes in-house, shared with the group that the company conducted an in-depth study on the true costs of e-discovery. The report included issues such as outside counsel and vendor costs, retention and collection policies, internal resources and technology, the possibility of sanctions, and many other factors. The attendee’s full quote is this:

“For a $25 billion company, handling e-discovery very well costs approximately $3 million annually. Average e-discovery costs $10 million. Bad e-discovery costs $60 million per year.”

While results may vary for corporations, those are eye-opening numbers and we're glad we're helping them get on the right side of those numbers. It led the discussion about how a department can’t just let outside counsel handle all things e-discovery anymore (even though most are past that) and it’s now so much more – there has to be process at every stage, there has to be real management and monitoring, there has to be a real dedication to quality control, and IT and Legal must be on the same page. All help build a “great” process. If a company isn’t focused on these things, one attendee shared, it’s “borderline negligence. At best you’re costing your company millions of dollars a year.”

The attendee went a step further, saying that "this data shows that Legal can be a revenue generator, so to speak. We can stand there and make a very strong argument as to why we need to spend money on certain software, or why we want to partner with certain companies... or even not work with certain law firms or vendors."

We’d be interested to hear your thoughts on the numbers above. The legal industry certainly isn’t averse to hyperbole, but this report holds up against much of the client data and results we track and report. For instance, it’s not uncommon to save clients in the eight figures over the course of a year compared to previously utilized models that didn’t focus on eliminating data, experienced project management or incorporating client-dedicated teams of Counsel On Call attorneys.

We’ll also follow up with thoughts and quotes from some on the different DS3.0 sessions.
 

In previous entries, I wrote about enjoying the discovery work that I do. Recently I have given more thought to the question of why it is that I enjoy it; after all, so many attorneys view the work as transitional or laborious. For me, the autonomy is great. The subject matter changes from project to project. I have opportunities to meet and work with different attorneys, clients, litigation support staff, and vendors, all of which I consider an added bonus. These things would also be true if I were practicing in a more “traditional” manner as well, however. So my assessment is that it must be something deeper that compels me to choose this career path over any other.

It was only recently that, when introduced by Andy Branham of the Memphis office as somewhat of a “computer nerd who happens to be an attorney,” that I had an epiphany. He was right.

There is a subset within the legal profession comprised of attorneys who consider themselves specialist discovery attorneys. The attorneys I’m referring to consciously chose to work in this rapidly expanding area of the law. But where did they come from? Perhaps some attorneys have inadvertently found this career as a result of being the go-to person for technology-related questions in a firm. Discovery attorneys possess a genuine interest in the work and a desire to use their experiences to contribute in the discovery process. These attorneys appreciate the complexity of e-discovery, the intricacy of the collection, culling and review processes, and ultimately the end product, the production. Here at Counsel On Call, our attorneys also often have the opportunity to handle additional discovery-related work, such as privilege log, research and writing and witness prep, among other responsibilities.

Perhaps these attorneys can visualize the process more easily than their colleagues. Perhaps they consider how technology can provide them alternatives and understand and embrace it, not just the end product that the technology may provide. Discovery attorneys are problem-solvers with a twist, using the technology to their advantage. They may work for large corporations, law firm technology departments, or independent e-discovery organizations that fill the niche role of discovery counsel. They work in conjunction and partner with in-house and outside counsel completing what could be referred to as the three-legged stool model of client representation.
 

E-discovery is still in its infancy and for me, as well as others drawn to this work, it is a grand opportunity, one that allows us to continually improve upon our skill set and enhances our knowledge base. I am thankful to have experienced mentors at Counsel On Call who appreciate this desire and continually assist in the furtherance of my growth as a discovery attorney by providing advice, insight and other resources. They recognize the value in providing growth opportunities that will not only benefit the individual and the team but also provide added value to our clients.

There’s also no question technology helps my colleagues and me do our jobs better and faster, thereby amplifying that value we offer our clients. That’s a win-win scenario as I see it, and I think attorneys who are into learning about new tools are perfect for e-discovery work. I look forward to diving into the practical uses of this technology in subsequent posts.

Shawn DeHaven is a Counsel On Call attorney and team leader and has offered to post his thoughts on the discovery process and working with Counsel On Call on Lawdable. To learn more about Shawn, please see his bio or the profile piece in Counsel On Call’s newsletter from last summer.
 

Our annual Discovery Symposium (now in its third year) for corporate legal departments is a real labor of love for several of us here at Counsel On Call. A lot of time and consideration -- much of it with our in-house clients -- goes into the creation of the sessions, identifying the proper experts to speak and attorneys who will get the most out of the program, as well as creating an environment in which in-house attorneys are comfortable sharing their stories of trial, success and failure.

We're very excited about this year's program and our group of attendees. Some of the highlights:

• Leading off with a panel on the challenges presented by Social Media today and tomorrow. Our knowledgeable friends from FedEx and International Paper, along with Barry Willms, will lead the discussion.
• Search Validation, Intelligent Coding and Smartly Reducing Data Sets, a panel that has been in development for some time and a topic we've addressed in previous events. But this year there's certainly a heightened interest/debate about this topic due to the New York Times article on the subject that went viral, so we're looking forward to getting deep into this subject.
• Breakout sessions led by Cox Communications, Fidelity Investments and Southwest Airlines, as well as a session led by some of our Team Leaders, who will get into the finer points of creating effective, cost-saving discovery processes.
• Ten-minute 'snapshot' presentations from six of the leading in-house attorneys who oversee discovery processes at their respective companies. Each will offer at least one 'lesson learned.' 
• Our annual discussions on relationships with outside counsel, pricing structures, budgeting and technology tools. We get a lot of 'stories from the field' during these sessions and there's always ample audience participation.

The format/size we've created -- small panels, 40 corporate legal departments, 65-75 attendees -- truly seems unique in the dialogue it generates and best practices it fleshes out. It should be another great event and we're excited to host everyone in Nashville again.

Last week, I had the privilege of attending and speaking at The Project for Attorney Retention’s (PAR) annual conference in Washington, D.C. There were attorneys from various practice areas from across the country in attendance and the event was a great success.

As I listened to managing partners and general counsel discuss the importance of having attorneys working on a flexible basis, including reduced hours, I had to take a moment to reflect over the last 11 years (April marks Counsel On Call’s 11-year anniversary). In our formative years during hundreds, if not thousands, of conversations, the questions I would invariably get, with all sincerity, were "Who would do this? Who does not want to be a partner?" I will always remember receiving one e-mail stating that I was ”crazy” and that I would fail as there is “only one way to practice law.”

I also remember meeting amazing attorneys who were made to feel they had no value because they opted out of the traditional path. Those attorneys kept me going.

At the PAR conference, it was clear that very talented attorneys now choose to practice in a “non-traditional” way, and the focus was on how the profession should embrace and encourage this choice. That’s certainly an initiative I’ve been and will continue to get behind. PAR has done an excellent job of bringing these issues to make real change happen and keep the conversations alive. Realizing that our “little” company isn’t so little anymore – and that our attorneys worked in 33 states for dozens of law firms and Fortune 100 and publicly traded companies in 2010 – serves as proof that more and more people are realizing that there is indeed more than one way to practice law. Today, so many talented attorneys choose to practice in what used to be thought of as a non-traditional manner.

What a difference a decade makes… and that difference is changing the profession for the better.
 

Well, the ACEDS 2011 (Association of Certified E-Discovery Specialists®) inaugural annual conference is over. Beyond our own Discovery Symposium (I’m admittedly biased), for my money it was one of the best, most practical e-discovery conferences I have ever attended. And the venue: wow! Hollywood, Fl., in March sure beats New York or Washington in winter (no offense. I’m just saying….)

The schedule included a wide range of topics: social media and cloud computing, the inner workings of how a computer saves information, data mapping, and ethical considerations in e-discovery. Unlike other conferences I’ve attended, this one kept me awake for the most part with a fast-paced program and diverse speaker list.

Sessions were tightly controlled and methodical. The panels were three or four individuals with slightly different topics or emphases and each speaker was given eight or nine minutes to talk. This was followed by both orchestrated (pre-planned) questions in addition to audience participation.

The speakers themselves were a good mix of attorneys, litigation support and IT professionals each coming from and speaking to their unique perspective. The speakers acted like they wanted to be there (which you cannot always take for granted.) They were not solely focused on case law or an academic approach to e-discovery but each session was very practical, current and relevant. It’s also worth mentioning that the moderators did an excellent job of not allowing any one speaker or audience member to dominate the time.

One area for improvement for next year is to spend less time in the introductions of each of the speakers. Some sessions took 20 minutes or more to get going. We have the bios in the materials; no need for reading me their résumé. I also would have liked to have had a better sense of who was in the audience (attorneys, litigation support and IT professionals.)

While I certainly learned many things, my biggest takeaway from the event was confirmation that our team here at Counsel On Call is doing the right things, looking at the right issues and is, in fact, ahead of the curve on many of these topics. The world of e-discovery changes daily, it seems, and we are constantly making efforts to ensure that we don’t lose sight of the bigger picture while stuck in the weeds. Going to events such as ACEDS is very helpful to gain that perspective and hear from people working on many of the same issues as we are.

I hope to be at the Second Annual ACEDS conference in March 2012. Check out ACEDS on-line and on Twitter or at the conference hastag. I also hope to continue the dialogue with some of my new Twitter friends now that we’re each back at our desks (follow me here).

Speaking of being back at home, leaving the conference was difficult. Ft. Lauderdale was 78 degrees compared to Nashville’s brisk 40 degrees. Welcome back to reality.
 

Choosing a technology vendor is a critical piece in making a review project successful. There are literally hundreds to choose from as was recently seen again at Legal Tech 2011. Even with lots of consolidation in the industry there are still many national and regional players to consider.

While there are many factors that go into choosing a review platform, do not forget the impact of having the basics covered. Every review software platform should be able to do the following:

• Host in a stable environment that doesn’t go down very often
• Ease of ‘look and feel’ to allow for quick coding
• Organized folder structure
• Searchability among folders, documents and attachments
• Reporting on progress by reviewer, custodian, overall and every relevant field of coded information
• Handling of the volume of reviewers logged on
• Having sufficient server capacity to process the data at the pace needed

Also don’t overlook the basic package that is needed to make an efficient review for the type of document that you will be collecting. Scanned paper might not work in every platform, for example. Likewise, certain color files do not work on some platforms. And just the basic set-up can directly impact speed.

It’s always a wonder to me how many developers don’t seem to try their platform on actual end users of the product. I know of numerous platforms that could be improved simply by changing the placement of certain buttons, modifying the layout of the foldering structure, or if they would just consolidate and ease the number of clicks to finish coding a record. These steps would most certainly make the review faster and more efficient.

But assuming that you have the basics covered, it comes down to three additional areas: cost, relationship and service.

Cost
The cost is an obvious go or no go component of the decision-making process. Most vendors are flexible and will give you options based upon volume of project, volume of overall client, or certain discounts that come with a first-time use.

Relationship
You have to work with someone, so you might as well like them as you’ll be relying on them for the success of the project. This goes beyond seeing a good demo or having lunch. Can you rely on their responsiveness after the sale? Are they trustworthy in what they say? Sometimes a good old gut check is helpful in discerning whom to put your faith in.

Service
It doesn’t do any good to have a great relationship and low cost if the end service is horrible. You shouldn’t rely on a vendor demonstration for making your final decision; most vendors have very good presenters and trainers (although I’ve seen some really bad demos, too). In the end though, the software must actually be able to do what is promised. It must deliver and the people who answer the phone – even when trouble arises – must deliver as well.

The advice is this: get the review team’s leadership involved at some level in the selection of the review platform. Our project managers are familiar with dozens of vendors and their service capabilities and can provide the type of insight that can make the review maximize quality control, troubleshooting, efficiency and ultimately save you significant dollars.