DS6.0 Focuses on Big Issues

It’s hard to believe that our annual Discovery Symposium is here already. This is now our sixth year of hosting a select group of clients and Fortune 500 legal departments in Nashville for two days of programming from their in-house discovery professional peers.

As always, this is an event we plan in close consultation with leaders from both large and small legal departments, those who have a large volume of litigation to those who might only have one big case every few years. There are no law firms or vendors in attendance, which is a great aid in generating open and honest dialogue among the 75 or so attendees and getting to the heart of best practices.

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Simplifying the Legal Holds Process for Faster Digestion: Part 2

Last week, Counsel On Call attorney Tiffany Fox posted the first blog in her series on legal holds. She discussed the first stage of a legal hold, which is preparation. Tiffany elaborated on the importance of understanding when a legal hold requirement is triggered, and the need for having “triage capabilities” in place in order to determine what immediate next steps should be. You can read her first post here. Continuing with this series, this post discusses the second stage, which is identifying the scope of the hold.

  1. Preparation
  2. Identifying the scope of the hold: This includes the person or people who need to receive  the hold and what information needs to be preserved. Generally you will want to notify persons who have substantive knowledge of the facts of the case, and IT or HR personnel who can help you protect and preserve data.
    • Remember that a custodian of data is not necessarily going to be a witness at trial. You may obtain information from someone who never gets deposed, and you will certainly have custodians preserving information that is never used by either party. In smaller cases with smaller clients, the custodian and counsel together can cull through and identify the documents that need to be held, but in larger cases the safer and less expensive move is to archive email accounts and backup systems containing known relevant information. The balance of the cost of storage versus the man-hours needed to cull through the data needs to be evaluated by counsel and the client to produce the best solution for each situation.
    • Every decision you make about a legal hold, including legal holds you don’t issue, should be documented in writing in a consistent manner and location. Document the why, who, when and what of the hold. The reason for this is actually a helpful presumption for your client: The courts do not expect perfection. They know that in any situation, some information will likely be lost. A party claiming spoliation has the burden of proof, but a paper trail is the best defense. Again, because these decisions are so fact-specific, being able to show contemporaneous evidence of why something was decided a certain way will tend to show good faith.

Next week, I will be covering the third stage, which is “issuing a hold notice.” I will discuss the importance of documenting your steps in an auditable form as well as the best way to send holds.

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Simplifying the Legal Holds Process for Faster Digestion: Part 1

PreparationThis is the first post in a four part series by guest blogger, Tiffany Fox.

As the e-discovery world expands, and parties are looking for technicalities and advantages to further their interests in the process, legal holds (“lit holds”) are coming more and more under the scrutiny of the court. Between producing parties abusing the nebulous language around withholding standards and recipient parties looking to press every advantage and find any possible spoliation claim, the courts have had to chime in with guidance and a bit more clarity on just exactly what a legal hold entails.

The first thing to understand is that the term “legal hold” is often used to refer to multiple steps in a process, rather than a single document or notice.
The Sedona Conference Commentary on Legal Holds sets forth 11 guidelines that in turn expand Sedona Conference principles five and six. I am going to simplify things somewhat, for a faster digestion, but highly recommend that any attorney who may be faced with a decision regarding a legal hold read the Sedona materials carefully, along with current case law. Again, because this is currently a commonly-argued aspect of discovery, the case law is evolving rapidly.

The easiest way to understand the legal hold is to think of it in four stages, each with its own sub-steps. I will be detailing each stage in four separate blog posts. As in litigation, the strategy for legal holds is likely to vary depending on each lawsuit or investigation, but there are common principles that can help build a defensible legal hold in any case.


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DS5.0 Takeaways: Process is Still King

Last week we had approximately 50 of our discovery clients and colleagues in Nashville for Counsel On Call’s annual Discovery Symposium. It was a brief but content-rich event where 75 of the brightest, on-the-ground in-house counsel, discovery managers and IT leaders met to discuss challenges they’re facing and how they’re addressing them. You can see the agenda here.

We all learn so much every time this group assembles, and 2013 was no different. We dove into the mechanics of predictive coding and machine-based learning, the cloud and its discovery and technology challenges, proportionality, chain of custody, information governance, and a host of other topics that were widely (and productively) debated. But the one subject that stood out more than the others was the continued focus on process.

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Lessons Learned at the University of Florida Law/EDRM Conference

Post by guest blogger Tiffany Fox

I had the opportunity to attend the inaugural E-Discovery for the Small and Medium Case conference at the Levin College of Law at the University of Florida (UF) in the beginning of April. This was an effort by UF to educate attorneys who may not have had exposure to the world of ESI, typically because their cases don’t involve the large corporations who have been doing e-discovery for years. The purpose of the conference was to identify and explain best techniques in approaching e-discovery in smaller cases (for example, divorce or employment matters), but the net effect was a solid overview of the world of e-discovery.

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An Aerial View of the Association of Certified E-Discovery Specialists

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The third annual Association of Certified E-Discovery Specialists (ACEDS) Conference was held again this year at the Westin Diplomat in Hollywood, Fla. We had great lodgings for sure, but they did not order the warm weather in so-called sunny Florida. Next year’s conference will be moved to May in order to compensate for this unruly weather. I guess I can’t complain too much; there are colder places in February/March, especially this year.

The gathering seemed to be a bit smaller than last year, but it was a really good group of professionals. There were several good sessions in addition to lots of opportunities to mingle and meet everyone. The information presented focused on a number of areas but a lot of them could be labeled within technology assisted review (TAR), social media and various ‘best practices’ within the industry.

It seems everyone is starting to dabble in TAR by various names (computer-assisted, technology-assisted, predictive coding, etc.). Much of the discussion went beyond simply being comfortable with the subject matter but included discussions on how to properly validate the process, workflow and output to make sure to achieve your goals and benchmarks.

The use of social media in litigation has not become as big as it was originally projected to be in 2013. However, its presence in cases continues to grow. Tweets, Facebook pages and many other networks are more routinely being collected and produced in litigation than ever before. We can only imagine that this will increase over time. We were told, for example, that instant messaging is the norm for business communications in some Asian countries instead of email. It’s certainly something we’ve been anticipating for a couple of years here in the states and that our technology partners are well prepared for.

The ‘best practices’ within the industry sessions included the following: dealing with data privacy issues of the EU, preventing malpractice or having ethical issues overtake you, and following a process to meet your budget, review and production objectives. There it is again: Success always comes from having a process and following it. As we always tell clients, it’s the project manager’s responsibility to ensure there is a process that is documented, defensible and ultimately repeatable in a future matter. Here are a few quick hits on the good, the ‘OK’ and the bad of the conference:

The good: It was a gathering of practitioners of e-discovery, folks who actually do this day in and day out. Lawyers, consultants, paralegals, IT professionals and technology vendors provided a good mix. It was refreshing to hear war stories from those who deal in process and who want to perfect the best practices of a growing industry. While the conference overdid the ‘experts’ language a bit, it really was a good group of professionals who work exclusively in this industry that had a lot to share on how best to accomplish goals. In the end, process always wins out. It’s best for clients, budgets, meeting deadlines and your own sanity.

The ‘OK’: While the topics were timely, the presentations this year seemed a bit elementary. There were too many presenters on each panel and not enough variety of speakers from one panel to the next (seemingly lots of folks did multiple panels). Variety is good for the soul. I would encourage the ACEDS team to expand the speaker selection and let each panel have a bit more time to develop its topics and provide more time for Q&A.

The bad: My constant pet peeve: too much time on introductions. For example, the first session didn’t start on time and resulted in the panelists not being able to talk until we were more than 35 minutes into the program. This limited the Q&A time which is often a very helpful part of the conversation. Then again, I’ve been to conferences where this would have been a good thing!

The moral of the story is that it wasn’t perfect. But what conference ever is? I appreciate ACEDS’ attempt at bringing together the best of breed within e-discovery people who are well versed in this field. My philosophy is the more we focus on best practices, the more clients will rely on us to help achieve their goals. All in all, it was a good event filled with useful information and solid connections with other e-discovery specialists.


What We Learned: Legal Tech NY 2013

Last week, I made my annual pilgrimage to the Big Apple to wade among thousands of legal industry professionals, the majority of whom are involved in some phase of the discovery process. And as is normally the case, the three-day event became a blur.

There are just too many people to see, too many technology platforms to demo, too many sessions to attend. However, Legal Tech does provide that one time of year to focus on the wide array of technology and ancillary service offerings that are integral to our profession. Moreover, it provides a great opportunity to keep abreast of national and global trends in technology and its application to the legal practice.

This year was particularly fruitful, so I’ve come back with 10 observations that are related to the issue du jour: Technology-Assisted Review (TAR). I will delve into more detail in multiple blog posts over the next few weeks, but for now, here are my thoughts and summary on a panel that took on some of the bigger issues.

Part 1

TAR really took center stage at this year’s Legal Tech.  Unlike last year’s treatment of predictive coding technologies (now generically referred to as TAR, correctly or incorrectly), where the discussions largely focused on the uncertainties of computer review and “black box” technology, it’s clear that 2012 was a year in which TAR in all its different varieties was embraced by legal practitioners. This made the panels much less theoretical and much more practical.

Indeed, the panel entitled “Case Studies and Lessons Learned from the Practical Use of Technology-Assisted Review" offered a guided tour of how each of the four panelists uses TAR in his or her areas of specialty.

10 observations from the panel discussions

  1. There is no one-size fits all technology or methodology. Sorry, there is no ‘easy’ button. While all panelists had regularly used TAR, none of the panelists used the same technology or even the same approach to using the technologies. However, the panelists were consistent in that they each had clearly defined processes that they followed for each matter. We wholeheartedly agree that there are many tools with different features and benefits and the key to successfully and defensibly utilizing technology is to have customized processes.

  2. You can’t separate the law from technology. As technology continues to advance at warp speed, there’s still no substitute for “good lawyering.” To effectively use and defend the use of TAR, the attorney should follow the same principles that are part of any successful legal strategy. The first is to talk to your client. It is imperative that the attorney spend time with the client and ask questions that are designed to lead to identification of relevant information and examples of documents that can be used in creating seed sets. Ask for acronyms, where they store data and who they communicated with on other side to develop your collection and review strategy.

  3. There is no case that is too small. The potential benefits of using TAR for large data populations are generally well accepted. However, for smaller data populations the panelists agreed that TAR is still helpful in cases with as few as 15,000 documents. In fact, the obstacle in using the technology on cases under 15,000 documents is not that the technology can’t assist in the review; rather, that if doing so required that you seek out a new technology vendor with TAR technology, it may not be worth the additional time and effort. Conversely, if you have a relationship with a technology vendor and have processes built around the applicable TAR technology, the use of TAR is especially helpful to resolve smaller disputes as the costs can be reduced dramatically and the risks of using the technology are much lower.

  4. You do not have to be a technology expert to use TAR. The panelists were asked how many times they had to explain the mathematics behind the algorithms used to train a predictive coding tool. All but one – who happened to have developed her own proprietary TAR module and explained for other purposes – had never been asked to explain the underlying technology that was used in the review.

  5. Process, process, process. Create a process. Document your process. You should be able to clearly present the steps taken to identify responsive documents and that process should establish good faith and reasonableness. The processes described to “train” the computer in TAR methods differed from panelist to panelist, but each described their methodical process in which they followed to (1) create the “seed set” and (2) to validate the results.

  6. Utilize the entire tool box to create “seed set” to train the computer. This gets into the weeds a little, and I plan to post separately on this vital aspect of predictive coding, but the crux of the matter is that key terms and concept clustering are still used in many TAR platforms.

    Key terms as a method to create seed sets. One panelist “uses key terms for inclusion but never for exclusion.” So while she will populate a seed set with key term hits, she will not exclude those documents from the opportunity to be brought into the seed set using different methodologies (i.e. random sampling, concept clusters, etc., might be examples).

    Clustering as a method to create seed sets. One advantage of the clustering approach is that you are not limiting the scope of universe by using key terms, which are typically inadequate if the only methodology for identifying responsive docs employed.

    Note: In our experience, we have found that all concept/content clustering technology is not alike. In fact, some are virtually useless based upon the methodology used to create the cluster. Many programs “cluster” documents that seemingly have no substantive relation to one other and certainly not enough reliability to create “seed sets” for TAR. On the other hand, concept clusters that narrowly define the size of the cluster to only contain documents that are highly similar can be very helpful in creating useful seed sets and eliminating documents that have no value to the case or training. With the right concept clustering technology, sampling the documents in a “cluster” is similar to the old practice of going through a warehouse of banker’s boxes full of documents, which would entail looking at the outside of box for a label (or any available indices of boxes), opening them up and sampling the documents. Very quickly by viewing the folder names and glancing through the documents, the reviewer could make a reasonable determination as to the contents of that box and reasonably determine if box should be “in” or “out.” There would not be a need to look at every document to make this determination.

  7. There is no magic number with respect to how many documents should be reviewed to “train” the computer. The key is not the number but the richness/representative nature of the seed set. The goal of creating any seed set is to find as many representative documents in that population to allow the computer to apply analytics. This is often not all done at the outset, but rather it’s an iterative process in which you continue to “train” the computer as you find more and more representative documents (e.g. “active learning”).

  8. Human reviewers are critical to the TAR process. This is the case for two main reasons:

    • Training a predictive coding tool requires attorneys with significant experience (preferably litigation) and knowledge of the client, case and substance, as the decisions that are made to train the tool have much larger impact than an individual reviewer on an individual document.

    • Reviewing the documents predicted as “responsive.” The only unanimous point of agreement of the panel was that once the predictive coding technology identified the likely responsive documents, a 100% review, document by document, is recommended of documents that would be produced. Two primary reasons for the need to review the predicted relevant documents (1) privilege and (2) knowledge of your production. The panelists agreed that, to date, TAR technologies have not been as successful in identifying responsive PRIVILEGED documents; therefore, it is an important function for a human reviewer to carry out. All agreed that when you are producing documents, the attorney should be aware of documents being turned over. The first time they see a document should not be during depositions of their clients.

      That being said, there were a few situations noted that might warrant less than a 100% review of the predicted responsive set and instead utilize sampling of proposed results: second-request situations and third-party subpoenas.
  9. Effective utilization of TAR saves significant time and money, and is defensible. One of panelists explained he had a case in which he had performed in linear fashion originally, using 20 to 30 attorneys over a six-month period. By circumstance, several years later the court ordered a re-review of the data for different objectives. By using TAR, it took one attorney one-and-a-half weeks to complete the work of five associates. Depending on the tool selected and the methodology deployed, TAR has tremendous opportunity to cull through a lot of non-relevant materials and to eliminate much of the attorney review time otherwise spent on sorting through the mountains of non-responsive documents typically found in any given case (usually only 10% or less of documents are responsive in a document review). By utilizing TAR, it is possible to increase the responsive rate of any review to 50% or above, which permits the attorney reviewers to perform more in-depth and substantive analysis without wasting time and money reviewing spam or other clearly non-relevant material.

  10. Validate your results. Do your own validation/null set sampling. Be prepared to show a reasonable process was undertaken to identify documents not reviewed on a document by document basis. This is no different than any other data reduction methodology (i.e. like key term development, sampling, testing and refinement), but always a crucial step in tying up the loose ends of your process.

I’ll have follow up blogs of my LTNY series posted here in the upcoming weeks.

Legal Tech NY 2013 Panel
"Case Studies and Lessons Learned from the Practical Use of Technology-Assisted Review"

Thomas Lidbury, partner, Drinker Biddle & Reath
Alan Winchester, partner, Harris Beach
Maura Grossman, counsel, Wachtell, Lipton, Rosen & Katz
Jennifer Keadle Mason, managing partner, Mintzer, Sarowitz, Zeris, Ledva & Meyers

ACEDS Returns With A Splash

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Well, the ACEDS 2012 (Association of Certified E-Discovery Specialists®) conference is over: another practical e-discovery conference at a great location (the Westin in Hollywood, Fla.) is in the books.  It seemed to be much larger than its inaugural year and a good mixture of lawyers and other e-discovery practitioners.

It was especially good to return this year having passed the CEDS examination last fall, which tested many areas of the e-discovery process, from technology to project management to budgeting, etc.

Topics at this year’s conference included dealing with social media, best practices in project management, succeeding in catastrophic cases, e-discovery malpractice, and numerous others. The format was again fairly tightly controlled, with each speaker giving eight to nine minutes on a topic followed by questions and answers, with the moderators trying to keep everyone on task.

The speakers were knowledgeable and usually quite practical in their application of points, although too much time was spent on bios and introductory remarks, which took away precious minutes from the speakers (some of whom were slighted on time). This is always the most difficult component of a conference and for the most part it was pulled off successfully, however. I liked that so many different speakers were used, and while several spoke on more than one panel there were no domineering performances that left you wondering why they were on a panel.

One main takeaway on the programming is that I’m still struck (and somewhat amazed) that the industry has been slow to embrace that e-discovery projects require project management. While this is generally an accepted notion on the technology side of the process, it seems not everyone has accepted (or is just slowly adopting) that everything from budget forecasting to people management to documented repeatable processes also needs project management. Speaking from personal experience and watching it happen on dozens of projects the last few years here at Counsel On Call, that’s where you get your efficiencies, your productivity and in the end your success.

It is no longer acceptable, in my opinion, to take a project, throw people at it, and invoice the client when you’re done. Instead, you need to be able to know where you are at every step along the way and diligently benchmark, track and report it – and your client needs access to that same information as well. Budget awareness, project progression awareness, complications that might impact the budget or timeline, collaboration with inside/outside counsel and technology partners, etc., are each integral factors in a successful e-discovery project and for future matters.

In the end, clients hate the ‘gotcha’ moment. Project management and transparency of process are meant to reduce and hopefully eliminate those moments. At the very least, the steps along the way will identify those events that could quickly spiral out of control if not picked up on as early as possible.

One other note: This year there seemed to be more technology vendors than before. While it is important to have great sponsors for such events, I’m sure hoping it doesn’t become overwhelming with booths like so many other conferences. These vendors were each given a time to briefly speak and provide several tips but were not supposed to make it an infomercial. Many succeeded while others failed. Perhaps the ACEDS committee should have this segment pre-planned much like they do each of the other panels. The concept is good but the execution left something to be desired.

Overall it was another solid event for ACEDS, and I’m looking forward to more in the future. They are worth checking out if you aren’t familiar with the organization.

And then of course there were the fabulous accommodations. The beach is always a great place to learn about e-discovery. Just saying.

A Proactive eDiscovery Approach Would Make Hannibal Smith Proud

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. ...

In-House Departments Won't 'Double Dip'

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 Panel: Early Involvement, Where We're Going, What to Do

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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"Bad E-Discovery Costs $60 Million Per Year."

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.

Who Are the E-Discovery Attorneys?

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.

Discovery Symposium 3.0 Program Announced

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.

No Better Place Than Florida For A Little E-Discovery

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….)We love talking e-discovery, especially here.

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.

E-Discovery Review Platforms: Choices Abound

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.

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.

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.

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.

Efficiency v. Effectiveness v. Innovation: Why Draw Lines?

There’s a quiet debate among legal pundits that’s often played out on social media sites such as Twitter, one that probably not too many people pay attention to. It’s almost an ancillary argument to the “traditional” way of billing for legal services, but it a debate that I believe cuts to the heart of value and innovation in our profession.

On the one side is the “effectiveness” argument, and one of the most outspoken voices on the topic is Ron Baker of California-based VeraSage Institute. Mr. Baker is a proponent of the death of the billable hour, and frames many of his opinions regarding legal value with the “effectiveness trumps efficiency” argument. If you’re on Twitter, I would encourage you to follow Mr. Baker.

Another proponent of the demise of the billable hour is Pat Lamb of Chicago-based Valorem Law Group – you might recognize Pat from recent 'New Normal' posts on the subject on the ABA Journal website. In a blog post over the weekend, Pat addressed the notion that effectiveness comes at the sacrifice of efficiency, and that the pursuit of efficiency stifles innovation. Pat says it all very well, but I’d like to tack on a couple of thoughts.

When undertaken properly, the search for efficiency can undoubtedly lead to innovation. We see it firsthand when we look at the processes of our clients; how they manage their legal work, who touches the documents, if there are better ways to allocate resources, where money can be saved and work can be handled better, as well as many other factors. We put a new plan into action and, as the process evolves, we look at how our attorneys are working, if the quality (or “effectiveness”) is meeting or exceeding expectations, and how we can do even better work in more efficient ways. As long as the goal is better effectiveness, the search for efficiency can certainly lead to innovation.

A huge target for this is the multiple-level review of documents in the e-discovery process. A common practice is for a team of attorneys to handle a first-level review of the documents and then for outside counsel to re-review a certain percentage of these documents. This process is almost always ripe for efficiency, especially considering the cost of the law firm’s review of the documents. But is it effective for the lawyers trying the case to only see a select portion of the documents?

That’s sometimes a contentious subject, but with a thorough quality control process, adept use of technology platforms and experienced attorneys conducting the initial review (especially those with deep experience litigating cases both small and large), it’s become clear to us that outside counsel often needs to review decreasingly fewer documents. The key is to build an effective QC process alongside outside counsel, part of which includes having senior people on the review team who have a solid understanding of the case and who work closely with outside counsel; they understand what outside counsel is looking for to win the case and can build a process to feed them the right documents. In practice, with each ensuing matter these issues become both more efficient and more effective, but it takes a certain level of innovation to design and implement the process.

So yes, I strongly believe the search for efficiency can lead to better effectiveness AND innovation. In fact, I think efforts in any of the three of these areas can benefit the others.

"Degrees of Freedom," Empowerment Make for Successful Discovery Teams

My thanks goes out to Sarah Randag of the ABA Journal for her January 28, 2011, Question of the Week (“Can Document Review Work Help You Grow As A Lawyer?”), in which she quoted from my previous blog entry. After reading the posted comments, it seems that there are several takeaway points to consider should one decide to work in the discovery arena:

  1. Jobs are what one makes of them.
  2. Who one works for makes a difference.
  3. Degrees of freedom are paramount.

I readily concede the point that discovery and document review work is not for all attorneys. It is true that all document review projects and organizations focusing on providing these services are not equal. I speculate bad experiences with some organizations also contribute to the negative stereotypes of the work. Bad experiences, rather than good, tend to stay with us longer (so psychology suggests). In the end, there are two camps: those who have had good experiences and those who have not. Perhaps the distinction between the two camps, promoters and detractors, is perspective on experiences.

I too have worked on a “traditional” doc review project and understand the comments of the detractors. One thing that makes the Counsel On Call experience unique versus other organizations is that our company is run by attorneys, from the owners to the client liaisons to the project managers. These attorneys have spent years either as in-house counsels or at large law firms. They understand the process, what is needed, the objectives, and the goals – including how to reduce costs without sacrificing the work product. It’s also important to note that Counsel On Call works with dozens of corporate legal departments as well as with law firms; many doc review companies primarily work with law firms and simply provide a "staffing" solution.

My most recent project provided me with a direct line to in-house counsel. Leading the discovery team, I directly reported to the lead in-house attorney placed in charge of the review on which we worked. In this regard, we functioned as an off-site legal department under the supervision and direction of the client. It was not uncommon to provide examples, discuss why a particular record might or might not be considered privileged, and seek other guidance from the in-house attorney. These conversations were both welcomed and encouraged. I was provided with knowledge of the process from receipt of discovery request to actual production. Being involved in, and gaining knowledge of, the big picture changes how the work is viewed and done. We were always treated as a critical and integral part of the legal team.

Maybe that is the point as it relates to degrees of freedom. Because I have a background in Industrial and Organizational Psychology with an emphasis on the “O” side, a portion of my first training was in creating, developing, and maintaining efficient and effective teams. I use “degrees of freedom” in this context as a catchall for empowerment, and research suggests teams work better when they are empowered. Ingredients of empowerment include knowledge, a sense of belonging and the ability to make decisions. When a team is empowered, it develops a sense of ownership of both the work and the final product. The team is, collectively and collaboratively, a separate and distinct entity; distinguishable from the sum total of its parts, the individual team members. To that end, I would hypothesize the “traditional” doc review team which possesses no degrees of freedom, and consequently no empowerment related to its work would be far less effective and efficient than the empowered team of which I am a part.

As I said in my earlier entry, I enjoy my work and learn on each project. I’ve broadened my skill set and gained a better understanding of the discovery process. I’ve also learned more about what’s important to my clients and how I can help the team achieve goals. When it’s all put together, I know I’m a better and more valuable lawyer today than I was before I started working on these discovery matters. 

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.

Harried, But With Purpose

Follow Barry on Twitter

Harried. That’s the usual descriptive word for the week prior to the start of a discovery project (especially when it's been a week like this one: several new projects beginning while preparing to head to LegalTech NY next week). Assembling and familiarizing team members; developing and fine-tuning QC protocols; hour-by-hour updates from technology partners; constant discussion with outside counsel; making sure the client is getting concise and relevant information. Effectively relaying all the information to the people who need it. Logistics, logistics, logistics.

These challenges, as you might have noticed, are solved through collaboration, communication and coordination. It is the groundwork needed to achieve a successful and budget-conscious review project. The maestro of this orchestra is the project manager. It is his or her responsibility to have a plan in place, implement it, tweak it as necessary, manage the issues and move the process forward.

Much of a project manager’s time and expertise is best put to use in transitioning the project from a harried environment to one of streamlined communication and coordination. This includes accurate budgets and every member of the team knowing his or her role in the process. “A” comes before “B,” etc. Initially, ramp-up might be full of changes and the desired decision rates targets might not be met; the good PM will have a plan that accounts for the unexpected, avoid overreaction, correct what needs correction and get everyone and everything running at optimal levels.

Some may call it organized madness, but every review truly is one large learning process. It just has to be built into the process – knowing when and where the team could experience difficulties and being able to adjust on the fly. It is as critical as assembling the right team leadership and team members. It includes training on the substance of the matter and on any new software or technology that might be put into use during the review and preparing the materials that are needed for an efficient start and completion of the project. Again, each of these measures takes thoughtful collaboration and communication in order to maximize results down the road.

In the end, it all comes together to increase efficiency and effectiveness, save the client money and get the job done right and on time. Just know that the duck that appeared calm on the surface likely had its feet paddling like mad underneath to make it happen.

E-Discovery & Document Review From a Different Perspective

Note: 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 here. This is his first entry. To learn more about Shawn, please see a profile piece in Counsel On Call’s newsletter from last summer.

I received an email from a colleague recently with a link to an ABA article titled, “Paralegal Job Can Make Career Sense, But Document Review Is Dubious, Experts Advise.” Nothing like a great headline to get your spirits up.

The article suggests document review work should be avoided by new law grads so much so that, in some instances and if given the choice, it is better for said grad to take a paralegal job in lieu of a document review job. I would have acquiesced to the point since, on its face, the article appeared to be written with the new grad as the target audience… but for the fact that one linked blog attacked the industry as a whole.

The blog suggests that document review work is “totally meaningless” and describes it as “walmart for lawyers.” Continuing, the author states no actual lawyering is involved, that all one learns are some new legal concepts, results in the amassing of no new skills, and suggests “…it's valuable work for the client that we never meet and who doesn't give a ___ who we are…” I can only infer from the author that if one is not a litigator, they should not be called a lawyer.

I would like to thank all of the authors, the scores of bloggers and others who proclaim the professionally detrimental characteristics of document review work. I appreciate the categorization of it being dead-end and worthless work. The more negativity and misinformation there is out there means less people will be drawn to the work… and that keeps those of us who do the work employed.

All kidding aside, there is a dearth of commentary addressing the positives of discovery work. There are certainly scores of contract attorneys who don’t do such work, as my colleagues at Counsel On Call can certainly attest. But I’m sticking to what I'm currently working on, which is discovery work, and rare is the article or blog written by an attorney proclaiming how great the work is; maybe my team and I are different and actually see the work in this light.

I am an attorney. I have represented clients in court. I have provided legal guidance to companies. I do document review and discovery work. And I am happy.

How is this possible, the cynic might ask? Consider this: an attorney working on a discovery project has the unique opportunity to learn something new -- the use of technology in litigation. I posit that if all one learns from working on a document review project is to press ‘Shift 5’ all day, then one was probably not open to the work in the first place. That is not a bad thing. It’s okay, the work is not for you. As I see it, there are two different types of people, those who embrace the task they have been assigned, take pride in the work they do, and attempt to glean some big picture mastery… and then there is everyone else. It's kind of like that Jimmy Buffett song, “It’s My Job.” It's how you look at, it's about perspective.

Back to technology…. On each discovery project I’ve worked on I have been moved from regular reviewer to the quality control team because I identified ways in which the process could be improved through the use of technology. The full use of these tools allows the process to be a puzzle, a game of sorts and a challenge – every day is a little bit different than the last. It is challenging to learn about new technologies and shortcuts and how they can assist the process. To me, this is fun; and now that I have found my niche at Counsel On Call as a team leader, I enjoy going to work every day which, I have heard, is a rare thing for an attorney. But more importantly, I’m providing expertise and value to my client, and that is a big part of why I became a lawyer in the first place.

What Would Hal 9000 Do (WWH9D) for E-Discovery?

“Greetings, attorney 61432. Your security access has been confirmed. What type of documents would you like me to search and code for you today?”

Imagine e-discovery being that easy. Simply logging on and telling a computer to handle your process for you. Sounds like something out of “2001: A Space Odyssey.”

When I began my legal career, the dominant discovery work involved reviewing paper documents in cardboard boxes and inputting information onto coding sheets or onto computer ‘boxes’ with blinking orange or green lights and no internal drives. Not exactly the golden age of artificial intelligence, eh? That being said, very few could foresee the impact of the computer itself in the legal world, but with the advent of e-mail an entire industry was born to deal with the “E” part of e-discovery in particular. The jobs that many lawyers hold today did not even exist in that form just a decade ago.

Fast forward to today where the talk of the town is predictive coding using the ones and zeros to do the work that a human lawyer currently does (maybe "The Matrix" would've been a better analogy here). Predictive coding has received an increasing amount of discussion among the various forward-thinking lawyers involved in e-discovery (see a good example here). This trend and its impact will no doubt increase over time.

Predictive coding takes a number of forms but basically it involves someone with case knowledge starting to review documents, and then the computer learns from the documents marked responsive, non-responsive, privileged, etc., and applies that knowledge to categorize all the documents in the entire data set that has been collected. (Of course, the value that most discovery attorneys bring to a case is more than just tagging a document as responsive or privileged. They also analyze the documents and determine how they fit into the overall litigation. They can find problematic, hot or helpful documents too that might not be possible to find strictly from a predictive coding perspective.)

The question that remains is whether predictive coding will be good enough to rely on for production or will we still need to review the documents at a more “Quality Control level” before production. The upsides are definitely there if it can work. Speed, cost savings, accuracy, etc., could all be improved. As always, much depends on the accuracy of the initial information inputted into the process, but overall it bodes well for saving clients money.

And as cost-saving devices are created to meet the current technology challenges, the technology challenges themselves are also changing and increasing. The next challenges will likely involve social media sites, text messaging, audio and video files, and dynamic databases, each of which are only starting to rear their ugly heads in the discovery world.

Add all of this discussion to our current economic times and we once again have the concern about the impact on jobs and future careers. Will they still need me if a computer does all the review? The question is not unique to the legal world and the answer may surprise some of you.

While it took a decade for e-discovery to take over the entire discovery process and discussion, the new waves will likely come much faster as technology evolves and impacts everything that lawyers, especially attorneys involved in e-discovery, do. Attorneys may not be first-level reviewing any e-mails in five or ten years, but they could be looking at videos on an eighth-generation iPad! New avenues that currently don’t exist or only exist in their embryonic stage will be available to us all. There will certainly be new workflows and protocols created to incorporate technology into making the discovery process more effective and efficient – someone is always seeking ways to build a better mousetrap, and we at Counsel On Call fall into that category.

Part of my job as Discovery Process Architect is to continually analyze what’s working and what isn’t, what our teams can do to better utilize the available resources, how to deliver the best-possible work product, and ultimately what can we do to save our clients time and money. Predictive coding could very well be a part of that in the not-too-distant future. I do believe, however, that attorneys will still be an integral part of any smart and flexible discovery processes that are developed.

The bottom line: I don’t believe we’re anywhere near the Hal 9000/Space Odyssey scenario or a comprehensive predictive coding process eliminating the use of attorneys during the review.

But as the year nears its close, realize that change is constantly in the air these days. Change with it. Expand your skill set. Don’t get stuck where you are. Learn something new about technology this year. Read. Experiment. Become better at what you do.

I know these words have been uttered by every generation, but as one of the old guard who has transitioned into our brave new e-discovery world, I can speak to the value of its counsel.

Change to 11/16 Webinar

We've had a change to the Tuesday, Nov. 16, 1:00 p.m. ET Law.com webinar... Edward Efkeman, senior counsel at FedEx Corporation, will step in for Kristen Weathersby from Cox Communications. Kristen unfortunately had a conflict arise that will preclude her from joining us.

Edward is well-known in the e-discovery world and will discuss the process of bringing much of the discovery process in house, as FedEx has done in recent years. We're looking forward to sharing his knowledge with the audience, which is extensive and something we regularly rely upon.

If you haven't registered for MISSION:POSSIBLE: Successful Planning & Execution in the Discovery Process, you can do so here.

Coca-Cola, Cox and Counsel On Call Webinar Details

I guess that’s somewhat of a tongue twister, huh? Regardless, I am very pleased to announce that I will have the distinct pleasure of hosting a webinar via the Law.com network with two incredibly talented attorneys, Russell Bonds of The Coca-Cola Company and Kristen Weathersby of Cox Communications. The title: “MISSION: POSSIBLE | Planning & Execution in the Discovery Process.”

As the title indicates, both Kristen and Russ have been instrumental in helping their respective companies plan and implement discovery processes that have saved time and money while focusing on quality control and consistency. What I’ve found interesting is that both companies have gotten similar results while starting from very different places. Both Kristen and Russ are wonderful and engaging and we plan to have plenty of time for Q&A.

If you have time on Nov. 16, 1:00 Eastern, we hope you will join us for the free webinar. You can register here.

Consider "One-Stopping" Project Management, Not Technology

Imagine a world where the one-stop shop exists for all things discovery. Who wouldn’t want that? It’s easy. It’s predictable. It’s cost-effective and so ultimately it’s desirable. With all this I agree. One recent article explores this in greater detail and makes a very compelling case for Why One Stop Shops Will Rule The World.

One difficulty, however, in implementing a one-stop solution is that technology, in particular, is so incredibly mobile and forever changing. It’s a target that never settles long enough for you to really hit it dead on. Experience has shown that one vendor may be really good at a single component of the technology puzzle but not so good at another. For example, one technology vendor may be really good at culling data, another at hosting and review, another at clustering and searching, or another part of the process. Finding the one-stop shop for all of these functions is not only difficult but it also is hard for a technology vendor to maintain it once they achieve it. Someone smaller or quicker to innovate will likely supersede its competition in one area or another pretty quickly. If you become completely vested in one technology, you will find it very difficult to transition to another. That reluctance or inability to change ultimately limits the opportunity to continually reduce costs, and in today’s e-discovery of millions of documents and hundreds of gigabytes, the additional cost savings can be significant.

One example is the law firm that has certain in-house technology solutions that their attorneys are familiar with -- and is already paid for -- that they can provide to the client at a reduced cost. The problem lies in the fact that many of these ‘free’ technologies are much slower and contain less functionality than the more up-to-date technologies that are available and cost more to the client overall. If the law firm’s technology solution is two or three generations old – very common this day and age as quickly as the tools improve – there could be millions of dollars in efficiencies and data reductions left on the table.

To be technology neutral -- while vetting the many great options in today’s marketplace -- means that you look at each step of the process and find the best technology solution for that particular technology problem, and then piece it together in the best package possible. That’s really one major component of project management. Knowing what is best in the client’s particular situation and then putting it together in the seamless manner that provides the ease, predictability and cost-effectiveness that everyone ultimately wants is the goal.

Don’t settle for a one-stop technology shop or you may find yourself behind the technology curve pretty quickly. Instead, look for a one-stop project management shop that can bring the technologies all together for you that meet your particular requirements for your type of documents and budget for that particular case.

Understanding the client’s needs, the client’s documents, the client’s budget and timetable all play into the best possible technology selection -- and these are areas in which great project managers excel.

Discovery vs. Document Review Is Value vs. Cost

Counsel On Call has a Discovery Division while many other companies and law firms have document centers. We also have attorneys working on discovery teams, not document review teams. These might seem like subtle differences, but we are often asked why this is the case.

Many years ago, I met with a CEO of a large document review company that had several document centers. At the time, we really were not doing much of this work despite many requests from clients – it just didn’t seem to fit with our business model. During our discussion about the challenges of the document review business, he stated that he had “X number of seats” and explained to me how he had to get his cost per seat to less than $25.00 per hour. I asked, “By saying ‘seats,’ are you talking about attorneys?” He nodded. I left the conversation thinking, what are we doing here? I understood that it was a business and costs are important, but it was unsettling.

Continue Reading...

Popular Posts: Jan. 1 to June 30, 2010

July is the perfect time to reflect on the first half of the year. Things have been so busy here that we haven't had as much time to post as we'd like, but one of our second-half goals is to contribute more to Lawdable.

In the meantime, here are the five most viewed Lawdable posts to January to July 2010, in descending order:

#5: Legal Project Management: Fad or Focus? (Barry Willms, April 7)
More discussion on LPM, which points to some recent successes and the necessity for the project manager to have authority and follow several key guideline. This follows other popular posts on LPM from Richard Stout (January, see #3), Dennis McKinnie (June 2009) and Candice Reed (June 2009), among other LPM musings.

#4: E-Discovery Tools: Evaluate, Collaborate and 'Lawyer the Problem' (Barry Willms, May 21)
One of the summaries of a Discovery Symposium 2.0 panel session with Barry, co-author of Lawdable Richard Stout, and Edward Efkeman from FedEx. A synopsis of the process and decisions in-house departments factor regarding technology tools and how they fit with their respective teams and culture.

#3: The Spotlight Shines on Project Management (Richard Stout, Jan. 21)
This post was part of a multi-blog dialogue about whether PMs should be lawyers or non-lawyers as LPM truly cemented itself in the vernacular of the legal profession at the beginning of the year. Richard even suggested that LPM could provide an alternate path to partnership in law firms in the future. There were many great observations on the 3 Geeks and Hildebrandt blogs and plenty of back-and-forth on Twitter.

#2: Q&A With Attorney Chris Cotton: Haiti Update (Jan. 18)
Chris is a real leader within our E-Discovery Division and a trusted tactician and voice on our teams. He has also spent significant time in Haiti, helping build and launch an orphanage through the Hands and Feet Project before he came to Counsel On Call. He was in regular contact with several people on the ground after the earthquake, spoke to the media, coordinated with Tennessee's congressional delegation, and took a few minutes to speak with us about the situation in Jacmel.

#1: Alternative Fee Arrangements Gain Traction (Candice Reed, Feb. 3)
Talk of AFAs was deafening in the early part of the year and has only slightly quieted down in recent weeks, so it's no suprise a post on the subject drew plenty of interest. We also heard a lot about it at Discovery Symposium 2.0 and have written often about the subject on Lawdable. We're confident it will continue to be of interest for the foreseeable future.



Opportunity Missed?

There’s an article today in the ABA Journal regarding a survey of the 50 largest law firms in the U.S. and their use of outsourced legal services.

The only eye-popping numbers you’ll see in the survey results, however, are that 83% of the law firms surveyed declined to participate. The surveyors cite ethical and proprietary business concerns about law firms admitting the use of contract or outsourced attorneys, but in reality this is the fine line firms feel they must walk concerning their image. To be sure, Big Law has taken its lumps in the press during the last couple of years and they probably don’t see much that can be gained by participating in a survey like this.

But here’s what we’ve been hearing and seeing in meeting after meeting with hundreds of corporate legal departments in recent months: 1) they have demanded that their law firms outsource work like e-discovery, due diligence, contracts, patents and many other labor-intensive matters, or 2) they have partnered with law firms who have proactively brought outsourced solutions to them and ended relationships with law firms that haven’t been so forward-thinking.

It's also worth mentioning that we’ve also met and worked with a large number of top law firms in the last year, and call several of the AmLaw 100 some of our best clients -- and a handful have been with us for nearly a decade.

So while the survey results might not be that surprising, it does seem like an opportunity lost for firms who are constantly trying to gain market share and differentiate for their competition. Orrick, for one, has been very outspoken on their plans to utilize contract attorneys. While its “associate track” model is still in its early stages, it appears a promising – and differentiating – model that speaks not only to the needs of clients, but to the ever-changing needs of the attorney workforce.

At some point in the not-too-distant-future, none of this will be an issue... it will simply be part of the business that large chunks of legal work are outsourced (even though that’s the case already -- but shhhhh).

DS2.0 Panel Recap: Working With Outside Counsel and Gaining Control

It what was undoubtedly one of the most anticipated discussions of Discovery Symposium 2.0, Sue Dyer (HCA), Jan Mendel (AT&T Mobility) and Carlos Provencio (Morgan Keegan) served as panelists and led a lively discussion that detailed approaches to working with outside counsel in the discovery process. Anne Whitaker moderated.

Main Takeaways:

  • Set a line in the sand with outside counsel; Say, “This is how we’re doing it”
  • Building a “virtual law firm” controls outside counsel spending
  • Regional law firms and a collaborative model result in great value
  • It is important to set parameters on the front end
  • Law firms “will not change until we make them change”

Sue Dyer began the session by discussing the “virtual law firm” model, which includes the use of regional law firms and a HCA-dedicated team of Counsel On Call attorneys for discovery. Not only has this approach reduced costs, but it has made the discovery process more straightforward and efficient and eliminated the dependence on one law firm’s process versus another. HCA brings that consistency to each matter, wherever the matter takes place.

The panel and audience also discussed that as far as law firms are concerned, “not much has changed.” Some who came from the law firm background empathized with the law firm argument regarding the use of less expensive attorneys, specifically that “they sign the pleadings” and their work is attached to it. The counter to this, according to Carlos, is that it’s a matter of assigning value to types of work, and he sees the law firm in a more strategic role in litigation. He will pay law firms “for inspiration, not perspiration.” Audience members and panelists agreed saying that “law firms will not change until we make them change” and going as far to say that value pricing should be “part of their corporate responsibility.”

Panelists also discussed e-discovery and its addition to their workload, as well as to the budget difficulties they once experienced. While it was somewhat frustrating, panelists agreed that it has been more disappointing that law firms simply “do not get the team approach.” The turf battles and desire to handle everything on a case only impedes what in-house departments are trying to do. For Jan, this has given her the opportunity to be more creative with her budgeting and thought process, and she has seen dividends already and expects more in the coming months.

The cost of legal services was also discussed at length. Several attendees said they will not pay more than $500 an hour in attorney fees. The suggestion that law firms will continue charging high prices as long as “Corporate America” allows it created a lively discussion with the audience. One participant said she believes it is “offensive” to pay someone $900 to $1,000 an hour and will not approve partner hourly rate increases; she will, however, approve some associate increases (once she gets to know the associate’s work product). Since many big firms are not making changes to their hourly rate approach or insist on rate increases, many companies have utilized a virtual/regional firm network, which is much more in line with hourly rates under $300 per hour.

One audience member said she believes the root of the problem is costly law schools and student loan agencies. Because law school loans are due so soon after graduation, lawyers feel compelled to charge an unusually high hourly rate to pay back loans right away. Another audience member then said he believes the problem is law firms competing for higher profits, that it’s not the law school but the “economic model of the law firm.” He cited the cost of a paralegal at one firm of being more than $300 per hour, which indicated a complete lack of understanding regarding value. He also discussed two of his law firms’ stated goal to be on the “top profit per partner list,” which he said they achieved… but his company no longer works with those firms because of it. He said his company’s goal is to never pay more than $300 for an attorney (they are at the $500 cap currently).

The issue of how to tell a law firm “this is how we’re going to do it” was then discussed. While it can be a difficult conversation, all who spoke agreed that it’s important to set a hard line in the sand. Many stated that it’s become clear that whether or not law firms do realign their business model, there’s a better way to handle litigation and discovery anyway. One panelist noted that she doesn’t know if law firms are ever going to “get it,” but that they haven’t waited around for their firms to do so.

The importance of setting parameters on the front end of a working relationship was also discussed. Several participants stated their desire to get better in this area; clearly defining roles and who will handle what work are important issues to address that aren’t always black and white. Including law firms in the decision-making process regarding the distribution of work and budgeting was one approach highlighted; giving firms the opportunity to match prices for discovery work has been utilized by some, but no firms have “met that offer.” Within that context of collaboration, Carlos discussed Morgan Keegan’s approach in using similar-size regional law firms and how, much like Sue and HCA, Morgan Keegan is already seeing benefits. The firms work well with one another and his Counsel On Call team; when a matter arises that a firm needs assistance with, another firm in his network will step up “seamlessly.”

E-Discovery Tools: Evaluate, Collaborate and 'Lawyer the Problem'

It’s hard to believe that after all the planning from Discovery Symposium 2.0 that it’s over. It was a very fast-paced, informative and fun two days. But now it’s time to recap – if it’s possible to capture in a blog post the back-and-forth dialogue from panelists to audience -- and figure out what we learned… and where better to start that the first session of the first day?

On the ‘Software Experience, Culling and Early Case Assessment’ panel, I had the pleasure of sitting on stage with Edward Efkeman from FedEx and the director of our E-Discovery Division, Richard Stout. Edward has co-chaired FedEx’s internal e-discovery initiatives for the last three years, and if you’ve been to a major e-discovery event, you’ve likely seen his name on the program. Edward and his FedEx colleagues have a great discovery model in place.

We had a lively discussion with a lot of interaction with and questions from the audience. The most important takeaway for me was a comment from Edward: “Don’t forget to lawyer the problem.” FedEx definitely walks the walk in this regard and their in-house team is incredibly hands-on and detailed-oriented. His point: it’s not enough to throw technology at a matter or process; it must make sense and it must still meet the legal standards of reasonableness, defensibility and good faith. This is wonderful advice that I believe gets lost in the noise of the thousands of technology tools, webinars, conferences and white papers that engulf us.

In the spirit of ‘lawyering’ the problem, we were also reminded that lawyers have been doing early case assessment (ECA) from the beginning of the profession… it’s just now they must use technology to help solve a technology problem, which is volume. One still must interview custodians, decide what’s in and what’s out, strategize, etc. Using technology to solve a technology problem is really the only thing that has changed, and when utilized properly certainly makes life easier. (There is also a good post on E-Discovery 2.0 surrounding the discussion of the interviewing process.)

So your software selection must be understood and used by your lawyers. It’s not good enough that IT is impressed with the technology; the lawyers are the ones who must understand how it works. And bringing the process in-house is not the only option that a corporation may consider, obviously. They can also partner with an outside vendor to help guide and staff the process, review and ultimately produce what needs to be produced.

Along with risk tolerance, these decisions also come down to cost and results. Cost savings are found in reducing the amount of data and then reviewing the remaining data faster. Content analytic tools, clustering, and improved search functionality have aided review teams to speed the process and thus save money. Good tools and consistent protocols also provide more reliable cost predictability, which has generally been lacking in the discovery world in most cases. Using experienced attorneys who understand how to use the full capabilities of a review tool helps with speed, accuracy and overall project cost.

Relationships – internally and with outside counsel, IT vendors and other service providers – are also keys to success in the discovery arena. Everyone must understand roles, collaborate and communicate, and problem-solve. These were consistent themes throughout DS2.0, actually, and success with the above factors leads to results that are difficult to top, the panel agreed.

We also discussed several specific tools and platforms. ECA platforms such as Clearwell, Lateral Data and Equivio, among others, were detailed; the number of companies that have started to use one ECA platform or another has risen dramatically in the past year; reducing up to 90% of the data to review will clearly open some eyes. Some have even tried various purported “all in one” tools, though the general consensus was that no one tool excelled in all areas of the EDRM. The majority of companies that have the resources to pull chunks of the EDRM in-house don’t seem overly concerned with the “all in one” solution – they want the right tool for the specific case or matter, or have identified particular tools that fit the majority of their work (or at least ECA and the review). Others find the idea of off-site hosting/processing very appealing, and along these lines the panel and audience discussed platforms and services that offer “seamless” use of multiple tools, but with no real consensus. Regardless of the path, it's always wise to "test drive" a tool or platform before making any decisions.

Another takeaway worth noting: since it’s the lawyers who must be able to use the tool, a vendor may have already lost the sale if its software requires a full day (or even a multi-day) training session to fully utilize and comprehend it. That time commitment just isn’t realistic in today’s environment, and it certainly doesn’t affirm the “ease of use” mentality that so many in-house counsel seek. Understandable, practical and cost-effective are what matter. Without those, the in-house lawyer will not even give a tool or platform a second look.

We’ll have more on our other sessions in the coming days.

Discovery Symposium 2.0: Brief Notes & Quotes

Everyone is back in the office and looking fresh this morning, having wrapped up our 2nd annual e-discovery client event, the Discovery Symposium, with GCs, heads of litigation and those managing the e-discovery process. It was a fast-paced two days, with nine sessions covering a healthy spectrum of issues. All indications are that it exceeded last year, of which the general consensus was “the best discovery event put on by a wide margin.”

What makes the event so unique are the panelists who volunteer to participate and the open dialogue they help generate from the audience. The group is relatively small by design – we capped it at 55 in-house attorneys from 40 corporations – and there are no vendors in attendance. We also don’t put strict parameters on the content; we want the conversation to flow to what the attendees want to talk about. In the end, it’s peers speaking frankly about their experiences with the goal of identifying best practices and new ideas.

The group is diverse, with numerous Fortune 50 companies to small legal departments, with attorneys managing discovery in a variety of practice areas. What is especially rewarding to us is that our attendees have truly connected and reach out to one another to share ideas once they've returned to their respective offices.

Posted below are a handful of the great comments made during the sessions by our panelists and attendees. We will likely have several posts in the next couple of weeks recapping specific sessions.

“What differentiates some of the (software) tools often comes down to whether or not a lawyer can actually use it… I shouldn’t need two days of training, and no one on our team has 16 hours for that anyway.”
- ‘Software Decisions’ panel

“We truly develop and invest in our relationships, whether they’re with outside counsel, our IT department, or partners like Counsel On Call… otherwise it’s constant re-education.”
- Fidelity Investments panel

“I tell them it’s my risk, not theirs. And it’s what we’re doing, so you’re either in or you’re out.”
During discussion about law firms who regularly ‘fight’ when e-discovery is shifted in-house and Counsel On Call attorneys are utilized. The group cited instances in which the law firm said, ‘Well, it’s my name on the pleadings and I won’t risk it.’

“Let’s get real: you can’t budget everything. We’re creating budgets during the summer for the following year... we ask everyone to track key metrics and forecast their work volume, then make mid-year projections.”

“Yes, the action is in the forecast.”

- Discussion during ‘The Budgeting Puzzle’ panel

“I have gotten religion about value. I’m focused on cost and how to reduce it. The events of the past 18 months… there is no turning back. This is the way of life moving forward.”

I’m a lawyer with a practice who has to report to my clients. This IS a legal practice and we have to show we’re providing value. I communicate that to everyone on my team.”
- ‘Litigation Leaders’ panel

Two of our law firms made a conscious decision to pursue inclusion on the best ‘Profits Per Partner’ list. Well… they made it. But they’re no longer working with us."
- ‘Working With Outside Counsel’ audience member; his company has more than 1,000 cases annually

Energetic Group for Discovery Symposium 2.0

In May 2009, we hosted our inaugural Discovery Symposium, a Counsel On Call client event for a small group of heads of litigation, general counsel and e-discovery managers. We thought that by keeping the group small it would increase the likelihood of candid dialogue about what our clients are experiencing on a day to day basis, where they are struggling, and hopefully result in some real information sharing and best practices… and to help our E-Discovery Division improve and better meet their needs.

The feedback we received from the 35 in-house attorneys who attended the event indicated we achieved these goals, and several attendees made us promise that we’d organize the event again in 2010. So not only are we hosting it again (May 12-13), we’re stepping it up a notch with what we believe is even better programming that is more tailored to the diverse e-discovery knowledge levels of our attendees.

Best practices surrounding early case assessment and technology platforms will be a significant part of the program, as will process management, collaboration, budgeting and outside counsel relationships. We’ve also developed breakout sessions for those attendees without “robust” IT departments and for those highly knowledgeable about the litigation hold and ESI policy processes, among other topics. Panelists are from companies such as AT&T Mobility, AutoZone, Cox Communications, FedEx, Fidelity Investments, HCA, International Paper, Partners Healthcare, and SunTrust Banks, among others.

The response to the DS2.0 program has been tremendous, so much so that we’ve had to cap the registrations at 55 attendees from 40 legal departments across the country. It's a diverse group of Fortune 25 corporations, mid-size companies and smaller departments and we’re really looking forward to the event.

We’re also excited to once again “live blog” from the event, so please check in next week for recaps from each session. For more timely updates, you can also follow Chad Schmidt on Twitter (others to follow are listed on the menu to the right).

If there are any questions you'd like us to pose to our distinguished panelists, we'd love to hear from you... please just post in the comments.

Legal Project Management: Fad or Focus?

Like alternative fee arrangements, Legal Project Management (LPM) has become somewhat of a new fad – or at least a very popular topic to discuss and write about. While it’s still unclear how much attention the broader legal landscape truly gives this discipline (although some are making a noticeable commitment to it), I’m of the opinion that LPM should be a key focus of the legal profession moving forward.

LPM is not only about getting things done cheaper and on time, it’s about using best practices and process to accomplish desired goals and budget predictability. To accomplish this, the project manager (PM) must have authority, as Paul C. Easton states in a recent blog post. It’s key, and not only with the attorney team, but with the different departments and personnel involved in any project. That level of responsibility requires experience and a track record – the ability to develop and oversee processes, meet benchmarks, stay on or below budget, and develop consistency -- and having done it many times over. Simply pushing the task down to the lowest possible billing rate, a practice Easton frowns upon in his post, is counter-productive in most instances.

While we commonly see its use in discovery-related matters today, LPM should be the focus of any-size project requiring coordination of more than one person and there have been many successful PM-led initiatives in other areas of the law. It doesn’t matter the area of law, really, because budgets, organization, timelines, process, quality standards, and repeatability are universally necessary considerations. Each is part of the LPM role, and each can be improved dramatically with a great PM. A PM who understands a client’s bigger picture is even more valuable and can help bring core disciplines from one department to another, building on previously successful practices (e.g. e-discovery to due diligence or employment work).

However, without authority – or at least a seat at the decision-making table -- the PM’s power to generate results is effectively non-existent. Spinning wheels, waiting for sign-off by the higher-ups on everything, direction that differs from previously successful results, and choices that are subject to constant overturning… this breeds confusion, stagnation, indecision, and ultimately higher costs.

If you go the route of project management, don’t go halfway. Make a commitment and give it the resources (and power) it needs to be successful.

Early Case Assessment Provides Bang For Your Buck

It’s been nine months since my Review less data, and review it faster post -- a lifetime in the e-discovery universe -- so I thought it time to brush off the dust and revisit the post's underlying principles.

First, let me note that I think in-house decision-makers have become more informed consumers of all things e-discovery since that post (and others) was written. More people understand the basic concepts around reducing legal costs and more people know the right questions to ask. So while I agree with much of what what was written on the '3 Geeks' blog regarding the question “if clients are smarter now,” I believe that the overall knowledge level within the in-house community has increased.

That being said, I have been involved in several discussions with potential clients recently and when I ask questions on how they currently handle the e-discovery portions of their cases, it has often been apparent that a key component to reducing costs has been overlooked (or at least has not been the focus of cost-reduction efforts). It is still common to hear of strategies focused on the hourly rate of the attorney reviewer. While the cost savings from a law firm attorney to contract attorney are certainly substantial and save big dollars, the cost savings of a contract attorney versus another contract attorney is not significant in the overall cost of litigation. In fact, it is not uncommon to see the lowest-cost provider produce a result that’s higher in total costs due to the layers of review required to ensure a consistent work product.

A real opportunity to save major dollars in e-discovery is through an effective early case assessment (ECA) strategy. This requires implementing a repeatable and defensible process that is targeted toward finding relevant information and safely eliminating non-relevant information. Through advanced ECA technologies, one can filter out clearly non-relevant email domains from a review, limit the universe of reviewable documents by date parameters, and most importantly apply AND TEST well-crafted key term searches to the collected data. The importance of comprehensive and effective key term searches cannot be overstated. Done correctly, it can consistently reduce the amount of data to review by 85% or more.

Well-crafted key term searches are not a one-time task. Rather, effective (and defensible) key term development requires application of key terms, sampling of the results of those key terms, and expansion and narrowing of the search terms. It is critical to properly document every step of this process so that you can demonstrate the good faith efforts in targeting relevant information and eliminating clearly non-relevant information.

A little bit of Early Case Assessment can go a long way. This became apparent in one of our year-end reviews with a client in which we compared 2009 to 2008 numbers. It did not surprise me at all that we handled twice as much data for the client in 2009 versus 2008. The client simply had more litigation in 2009. What popped off the page was that despite this significant bump in volume, we reduced costs by almost 60%. That’s mainly because we implemented an early case assessment protocol for all the client’s matters, which not only reduced the number of hours our attorneys spent reviewing documents, but sliced the client’s overall technology/review software expenses as well, saving millions of dollars over previous years’ expenditures.

So while application of key terms prior to review may not always be possible in a matter, the principles of early case assessment are. Spending a few hours on the data prior to batching for review can ultimately save significant dollars. There are several great ECA tools on the market – including a couple of new ones we’re experimenting with – and the costs are comparatively small. And if you’re looking for some bang for your buck, ECA is a great place to start.

Speaking of ECA, our friends at Clearwell posted an entertaining video today (it’s April 1, lest we forget).

E-Discovery is Trust and Commitment

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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The Spotlight Shines on Project Management

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.

Pricing In The Alternative

The “alternative” in an Alternative Fee Arrangement (AFA) can be defined as “affording a choice between two or more things…mutually exclusive so that if one is chosen the other must be rejected.”

In the arena of legal fees, the alternative is compared to the standard billable hour. One potential alternative is a fixed fee. For other AFAs, see this interesting article where Pat Lamb argues that the “real point” should be to “shift risk from the client to the firm,” among other things.

The questions to ask are: what is the goal? What is the incentive and who should have it? Who takes the risk? Who should benefit from taking that risk?

Blended rates and known budgets provide predictability. Is that the real issue for clients? Is the debate between low cost and predictability versus unknown budgetary costs, or does it involve the ability of the legal provider to use reproducible cost-effective services over time for the benefit of the client?

I would argue that these types of arrangements will have a short lifespan. After a certain period of time, all a fixed fee arrangement offers is what the cost is going to be, not how the work can be done more efficiently, for less money, more intuitively, or in a manner in which you can best meet your goals. It also encourages a law firm to use minimal staff or attorneys billing at the lowest hourly rate, which may or may not be in the best interest of a client. The lack of value will be exposed at some point.

The bottom line is to define the goals you are trying to achieve. Is it predictability? Cost savings? Particular expertise? Time reduction? Maximum manpower? All of the above?

This is the point I was attempting to make last week: it’s imperative to think how these arrangements can work for both parties, because if it’s tilted one way or the other, it’s not a great system. Someone loses. And there’s just not a great understanding in the marketplace of how these “alternatives” truly function or if value is really received.

So I like to look at what I know. I know my company’s costs of doing business. I have a pretty good idea how long it takes for attorneys to review a gigabyte of data on most software tools. I know a lot of different ways we can reduce the amount of data to review. I know how we create efficiencies throughout the discovery process. Knowing all of this, I feel very confident we can provide several different pricing options for our clients, whether it’s per document or per gigabyte (the ‘fixed fee’ options, more or less), by the hour, or some other structure. (Although I’m talking about discovery here, the same basic principles apply to different types of work that might see alternative fees, like contracts, employment matters, IP issues, etc.)

If I didn’t really know all of what we know about our business, well … I would be basing everything on a lot of subjective data. That’s simply not necessary in today's marketplace. But because we do have the objective data and we understand our capabilities and costs, the client gets a great work product at a low cost, achieves measurable efficiencies, and ultimately the predictability and consistency that are sought. That’s a win-win arrangement, which is a great goal to shoot for from the beginning.

Alternative Fee Arrangements Need Precise Understanding

There’s little question Alternative Fee Arrangements (AFAs) have gained in popularity in recent years, and that interest seems to only be increasing. In a recent survey of in-house attorneys we conducted in Atlanta, 46% of those who planned to implement new strategies in 2010 said they planned to use AFAs. After all, what in-house department wouldn’t want cost certainty in a time when most are being asked to reduce costs?

However, it’s a difficult matter to pin down and price properly. Today’s post from the 3 Geeks and a Law Blog says it very well: you have to understand what goes into your costs before you can manage or reduce them, and thus create a valuable proposition for both you and your clients. And therein lies the rub.

For many matters, there are way too many variables to be able to create a fixed cost forecast that benefits both you and the client. That’s a terrifying predicament for a law firm to be in and roll out on a pricing platform to a client. But is that really the issue? I agree with the 3 Geeks post: many lawyers just don’t understand how these arrangements can (or do) work, and I’d add there’s a question whether they should even be pursued at all if that’s the starting point of the discussion.

I have previously worked on these types of arrangements prior to joining Counsel On Call, in particular, data mapping and record retention projects– two areas in which we had a pretty good understanding of the time it took to create the work product necessary to implement. And ultimately our clients understood and appreciated the certainty of the fixed cost. But the interesting thing was that when we would initially provide the fixed fee amount, our clients would sometimes balk, shocked at the total amount staring them in the face. But then when we broke it down on an hourly rate basis and they realized they were getting a significant discount, they were all for it. (It would often go like this: Us: “The cost is $75,000 for the work on a flat fee basis.” Client: “That much?!??! Are you kidding?” Us: “OK, tell you what, we’ll do it for $250 per hour and it should take at least 300 hours.” Client: “Great! Let’s do that!”)

So for many, certainty outweighs cost, even though they think it’s the opposite. Many law firms cater to that notion, which allows them an easy way out when trying to determine actual costs and value. It’s pretty simple to estimate how long certain projects will take, and then multiply that number by an hourly rate, provide a small discount and come up with an “alternative” fee; but that’s not really very creative and doesn’t truly solve the cost/value challenges the client is facing. In fact, one can argue that deriving a flat fee from this foundation actually de-incentivizes a law firm; it’s going to get paid that amount no matter the quality of the work or how long it takes to complete. That being said, a strong case can be made that AFAs should be incentive-based as a core feature, and we know several clients who are utilizing those types of models. When everyone has a skin in the game, priorities become a lot more transparent. Value is, at a minimum, more apparent in that model.

At Counsel On Call and especially in my role in the E-Discovery Division, it’s pretty simple: We have to understand all of the costs of a typical project and how to make the work product better and operate more efficiently. If we don’t do that, it’s not going to matter how we package our costs because we wouldn’t be providing value to our clients. You have to take care of the former to be able to create options for the latter.

(I'd also be remiss if I didn't at least mention Patrick J. Lamb at Valorem, who posts often on the subject of AFAs.) 

Pilot Program to 'Play Nice' in E-Discovery

As we all know by now, in 2006 the Federal Rules of Civil Procedure were amended to standardize how litigants should deal with their electronically stored information (ESI). Soon thereafter, courts at both the Federal and State levels started putting out their own rules (See Tom Allman's Article and a listing of links to state e-discovery rules.)

In addition to the rules themselves, the various courts are trying to find implementation language and protocols that govern the specifics of what the opposing sides must actually do. One example is the 2007 Administrative Order 174 in the Middle District of Tennessee, which spells out what the judges want to see happen at the meet and confer and during the whole discovery process.

Then in 2008, The Sedona Conference published its Cooperation Proclamation in an attempt to codify the steps that opposing counsel should take on the intricate and expensive matters related to identifying, preserving, collecting, searching, reviewing and producing ESI.

Now the 7th Circuit has taken the next step and announced a Pilot Program to last from October 1, 2009 to May 1, 2010, whereby selected cases will have to follow specific principles of cooperation.

The stated purpose is to assist the courts to, among other things, “promote…the early resolution of disputes regarding the discovery of electronically stored information (“ESI”) without Court intervention.” Basically, the Courts are tired of dealing with the lawyers who don’t play nice on matters of e-discovery.

The proposed standing order contains the following (paraphrased) duties: (1) Attorneys not cooperating will be sanctioned; (2) ESI requests should be proportional to the case; (3) Duty to meet and confer, including discussions on identifying ESI and format of production; (4) Identification of an e-discovery liaison to handle disputes; (5) Creation of appropriate and specific preservation requests; and, interestingly, (6) a friendly reminder that the attorneys should become familiar with ESI prior to filing an appearance in one their courtrooms.

First came ESI and the high cost of e-discovery; then came the rules; now comes cooperation and specific actions to follow … all in an attempt to lower costs, deal with the huge influx of discovery disputes and have lawyers play nice.

It's Vital To Have An (E-Discovery) Architect

I will not attempt (or bore you with) analogies about architects and house building and e-discovery protocols ... but as rapidly as things change in the e-discovery world, it is increasingly important to provide clients prescient and valuable guidance and to build processes that are consistent and reliable. That’s why it’s my pleasure to announce that Barry Willms has joined Counsel On Call’s E-Discovery Division as Senior Attorney + Discovery Process Architect.

It's a unique title, but an accurate one. Barry spent the last 14 years managing discovery matters for two prestigious law firms, King & Spalding in Atlanta and Bass, Berry & Sims in Nashville. He’s overseen and directed large teams of attorneys and has consulted numerous clients on the tactical use of technology to improve quality control methodologies and results during reviews. His ability to design and implement efficient, repeatable e-discovery processes – along with his background as a great lawyer – synchs perfectly with our E-Discovery Division.

We’ve known and respected Barry for many years and have always been impressed by his forward thinking and knowledge of the issues affecting the discovery process. We are particularly excited about his expertise in the document retention arena – those “pre-discovery” issues many of our clients continuously encounter. But he is also the type of e-discovery expert that our clients seek for project management, creating and implementing protocols, and managing quality control for reviews large and small. With his addition to our corporate team, we’ve truly strengthened our ability to provide our clients services up and down the EDRM.

Barry will also provide another voice on this blog that we believe you will find informative and interesting. Please feel free to peruse his bio or e-mail him some suggestions for a post. No word yet if he has any advice on home building.

A Lawsuit Delayed Is A Dollar Saved

I know that's a really bad take-off on a common expression, but it can be used to describe the prevailing attitude in legal departments toward filing suit against another company -- or even defending against a suit brought against your company. More accurately, the mindset is, “a lawsuit avoided is many, many dollars saved,” and those savings can directly effect the bottom line.

In past downturns, the Bar has been able to take some solace in the loss of transactional work knowing that the litigators would soon have more than enough cases to carry the load. Everyone expected that to be the case this time around as well. The common thought was that corporate work goes down, litigation goes up. But this recession is not like any other in so many respects, so why should it follow that course?

Since the beginning of this year, I’ve taken note of the lack of an appreciable increase in litigation. Companies are not willing to make the huge investment that even the smallest case requires; big cases can quickly become a massive drain on resources. Has the recession created an incentive to avoid these cash sponges? I believe it’s coincidental for a lot of legal departments.

Monday’s National Law Journal contains an interesting and well-written article by Karen Sloan. In it, she notes that there seems to be a dramatic shift in how corporate America is thinking about litigation as a result of the recession. Ms. Sloan shares my humble opinion that you cannot blame this change in attitude totally on the recession and cites other logical reasons why there has been a shift. There are many, many factors that lie outside of the current economic climate which have, through the course of time, changed the mindset of our corporate colleagues. The reality is that it’s just too darn expensive to enter into a courtroom battle where there are other options for dealing with the problem that are infinitely more cost-effective and efficient.

For years now we have been working with corporate clients on how best to tackle some of the more costly aspects of litigation in the most cost-effective and efficient manner. That being said, there’s little question that most changes or strategic shifts regarding litigation policies are reactive; there is usually something on the front end that demands a change. After all, in our profession the tried-and-true path gets worn bare unless a giant boulder is thrown across it. The recession certainly has provided the needed incentive for many to produce a new course of action.

But for many of our clients, that boulder was placed in front of them long ago, during better economic times, whether it was with rising outside counsel costs, new company standards or policies, or simply an early recognition that e-discovery was going to become more difficult to deal with in the future. So they started looking working with regional law firms instead of the AmLaw 100, or enacted procedures when dealing with specific types of litigation, or they expanded their in-house litigation teams and created strict e-discovery and data storing policies. Collectively, these changes meant there was a new approach to litigation, how and when to respond, and how to manage it. These clients were the early adopters of this shift and forged the path for others to follow. Once the recession set in, the shift accelerated somewhat uniformly throughout the profession.

Sure, we haven’t had a surge in lawsuits like has happened in other challenging economic times. There are many positives to this fact, though. The practices that have been developed during the good times are playing a role in decisions whether or not to sue (or to enact procedures when one is sued). They are certainly playing a big role in how to conduct a piece of litigation.

Holding (E-Discovery) Hands In Public

News of the O’Melveny-H5 partnership was heralded by some -- and likely lost among a list of news blurbs for many in the industry. For those who missed it, the partnership means that one of the globe’s leading law firms has partnered with a legal information retrieval (or “search”) company to offer a uniform litigation support service to clients.

The benefits of this partnership have been outlined by industry bloggers Chris Dale and Ron Friedmann, among others. But moving beyond the deal’s strategy-and-search foundations of service, the partnership is good news for all companies providing litigation support/review services and supplies another indication that law firms are moving towards a different business model. Coming out with a news release is particularly noteworthy, as partnerships like this one have previously been seen as damaging to a law firm’s reputation. Not anymore.

What we consistently discuss with our in-house clients is how to take advantage of the resources they have. In litigation, they have outside counsel to handle and shape the strategy. That’s what law firms do best and why their partners’ hourly rates are often justified (and many of our clients agree with this). That expertise is invaluable and the strategic decisions they recommend can save millions of dollars immediately and on future matters. That is a resource.

Litigation Support providers are another resource. We know how to run an efficient discovery process with strict quality control measures. We have teams of experienced attorneys that can be dedicated to only one client. We have the proven protocols and know how to benchmark and track data. We design our services to save money now and in the future. This is all contained in our value proposition for litigation support services; that's not traditionally the case for a law firm.

So while our methods and costs of actually conducting the review of documents differ from a company like H5, and without knowing how O’Melveny will package and bill its clients for this service, the messages that this partnership sends are 1) some law firms are accepting the need for and creating new business models, 2) they recognize exactly how they are a resource to clients in litigation, and 3) They aren’t afraid to tell the world about it. I don’t think it’s a coincidence that our Litigation Support Division has seen increased interest from law firm clients in recent months.

Ultimately, these are all good signs for the profession (and especially clients).

An E-Discovery Event With Substance

We're not in the habit of event promotion, especially with the sheer number of e-discovery-related conferences in the marketplace, but one in particular has us excited. If you're looking for good, substantive programming and a great line-up of speakers, consider:

ACI’s 7th Annual Advanced Forum on E-Discovery & Document Management

We don't have a dog in the hunt, so to speak, but know and respect many of the panelists involved. Collectively, the in-house counsel on these panels have experienced most, if not all, conceivable challenges related to e-discovery and have developed and/or overseen many efficient and cost-saving solutions. 

If you're weighing different conference options -- and your 2010 legal budget-planning process is fast-approaching or will be in-progress -- it would be hard to go wrong with this event. And if you're planning to attend, drop us an e-mail so we can introduce ourselves while on the same plot of South Broad Street space.

The Forum is Sept. 22-23 in Philadelphia.  

Is 'Project Manager' The Next Big Legal Job Title?

Once upon a time, there were really only a handful of titles in the legal profession: Associate, Partner, Paralegal; General Counsel, Associate General Counsel; or simply Attorney. Sure, there were mini-steps between these positions and other classifications, but for the most part these titles offered a good snapshot of the profession – especially the way business was done. Everything that couldn’t be handled in-house was sent to the law firm. There were no Account Executives, no Client Liaisons, no Information Systems Administrators ... no other business partners to lean on.

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Legal Budgeting: It's The New Black

Remember your days as a law firm associate when you were told the exact number of hours you must bill to receive a bonus? You focused your attention on the research memo, brief or closing binder at hand and only looked up to count up your weekly hours to make sure that you were hitting your billable quota. You didn’t pay attention to your receivables or whether the partner wrote off your time (you’d worry about those business-related matters later, perhaps during your 7th or 8th year of practice when you were up for partnership), because you knew that if you met that magical 2200 hours at the end of the year, your annual bonus was as good as deposited in the bank.

However, for corporate in-house counsel (and even those same law firm associates just one year later), those days are quickly fading into the rearview mirror. We are now entering the Golden Age of Legal Efficiency -- meaning that an attorney now needs equal expertise with Lexis, Westlaw and Excel.

Budgeting is a huge part of in-house counsel’s struggle for legal efficiency. There is no endless supply of revenue coming into the legal department; there are no bottomless pits of outside counsel spend. Every dollar is under a microscope these days; the ends must justify the means; and we all must do more with less – all points echoed in an article in Metropolitan Corporate Counsel magazine. This trend has had a notable effect on all facets of the legal profession: as an attorney or legal services provider, you better understand your client and know the actual cost of your services in order to survive this tightening of the belt.

Litigation is a great example of the legal-efficiency trend because it’s an enormous line item for many in-house departments. There is so much more data available to in-house counsel now that it has become relatively easy to break down costs and identify areas of savings throughout process, particularly in the discovery phase. The number of documents to review, processing costs, software platforms, attorneys’ review rates, hourly bill rates . . . these all are areas for significant cost savings. And when in-house counsel focuses on getting the work done properly and efficiently, it causes all of his or her partners/vendors to budget properly or risk losing the business. With everyone on the same page (or spreadsheet) and keeping an eye of the bottom line, it helps the client budget for future matters more accurately and to make prudent business decisions on every piece of litigation going forward.

The point is that there are many items that can now be budgeted that previously weren’t observed with a honed eye. You want to charge $200 per hour for your associates to conduct the review? That’s fine, but show me the actual benefit, don’t just pitch me on the law schools they attended. You want to use your preferred hosting company? OK, but give me the cost analysis. You want to handle our litigation moving forward? Give me detailed estimates on all the costs involved and explain to me how you’re going to make our process better and less expensive for the next case.

The emphasis on budgeting is by no means specific to discovery. Due diligence, trademark and copyright, contracts and employment matters, among others, are each just as conducive to scrutiny. It is no longer good enough to simply say, “Sure, we have great attorneys who can handle these cases” or “We can do that for one-third what you’re accustomed to paying.” The service providers who are differentiating themselves are the ones who demonstrate, “Yes, we have the experienced attorneys who can handle these cases. Here’s how many hours we expect it to take, here’s the data to back that up, and here’s what we can do to make it work for your budget.”

Transparency in budgeting and in project execution are here to stay. It is a much better starting point for many clients, or should I say the only starting point. I recently read an article where a senior partner at a large multinational firm in D.C. stated, “I’m not really interested in the business of the law,” explaining that as lawyers focus more on the bottom line their role as a trusted advisor diminishes in value. Well, in my opinion, it’s possible to do both – serve as a trusted advisor, while also recognizing and planning for the costs involved in the legal representation. And if you don’t believe me, just ask an in-house attorney – most of them have to do it every day.

Two Words For E-Discovery Savings: Less and Faster

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.

Leadership on a Matter -- It Matters

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.

Recap: Creating Your Own Discovery Team

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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Is That Thunder In The Distance?

There’s an interesting phenomenon happening in the litigation arena right now: nothing.

Well, that’s not entirely true. There is plenty going on, of course, but the sour economy has put a different spin on how litigation is being managed. Cases are not marching in lock-step with a normal timeline. For instance, some companies are putting everything related to a piece of litigation on hold until they are required by time, or the case itself, to act. And action this time around is preceded (in most instances) by a lot of anxious planning and budgeting.

Now this isn’t anything new – many companies have longstanding policies not to act on litigation until forced to do so. It’s often a cash-flow-versus-workflow approach. However, I am seeing a palpable sense of hesitancy with regard to litigation and case management. Companies are taking an ‘I’ll believe it when I see it’ stance, whether it’s regarding the various stimulus measures and burgeoning economic turnaround, or the stability of a company and their department's budget, or any number of other things. That attitude is impacting case management. These companies know that eventually they are going to have more work (i.e. revenue), but they simply do not want to spend the money now, when times are tight, addressing litigation matters unless they have to.

All is not dour under this approach. One great side effect is that companies are taking this time to create, refine or institute their approach to e-discovery for when the storm finally does come. If their ducks aren’t already in a row, they are briskly walking toward the line.

We’ve participated in dozens of planning or strategy meetings that are seeking to solve the bigger issues: how to create repeatable discovery processes, how to budget discovery costs, the software tools to use, the action items surrounding a litigation hold, the data collection and management process, analyzing the benefits of early case assessment tools, and creating processes that facilitate collaboration with outside counsel and all their legal vendors, among many, many other issues.

All of this is ultimately focused on cost and efficiency, of course. And it’s never too early to make that a priority – or in some cases, it’s not too late.

How E-Discovery Has Helped Legitimize Contract Work

Nine years ago when we started Counsel On Call – we celebrated our anniversary on April 3 -- we had to work our tails off just to get a courtesy meeting with a client. We spent a lot of time in those meetings addressing uninformed stereotypes about contract lawyers who ‘couldn’t get a job in a real firm’ or were ‘too lazy to do the work.’ After talking in detail about the quality of our attorneys and how they simply didn’t want the big firm life, or had another interest they wanted to pursue in addition to practicing law, or wanted to spend more time with family, we started to get beyond those initial hurdles. Realistically, most everyone we met with knew an attorney that fit our model.

I’m glad to say that many of these prejudices have dissipated over the last decade, and I’m especially pleased to see that so many talented attorneys now choose to practice law in a non-traditional way. It’s more rewarding that clients recognize this as well. Most of our clients refer to our attorneys as Counsel On Call attorneys, or employment attorney, bankruptcy attorney, corporate attorney or discovery attorney … there is certainly more awareness that not every great lawyer works in a “permanent position” within a firm or in-house. It’s helped us get to the pressing matters at hand – ways we can provide our clients with effective business solutions that incorporate low-priced, experienced and highly qualified attorneys.

So what was the tipping point? This is difficult to say. First, the attorneys who have worked with Counsel On Call the last nine years have helped change the perception of our clients. Second, once clients started working with our attorneys, they realized how easy it really was, and how much value each attorney offered. Third, our clients were willing to share their experiences with others – most of our business has grown through referrals.

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Podcast: What Works In E-Discovery, Cost Savings

The second podcast with LegalTalk Network's In-House Legal show is now up.

Richard Stout, director of our Litigation Support Division, and Dennis McKinnie, executive director of our Atlanta office, discuss all things e-discovery: Why the review rate is important, early case assessment tools, what e-discovery savings should really look like, the importance of outside counsel, and why every in-house department should have a discovery process it controls, among other things.

The 13-minute interview begins around the 13:45 mark. The podcast is also available on iTunes for free download.

We hope you'll check it out and let us know what you think.

In E-Discovery, It's Not About The Hourly Rate

The billable hour has received a lot of attention in recent months as it relates to associate salaries and the value the client receives, among other issues. But it has been especially relevant in the e-discovery field in recent years, as more in-house departments have realized that much of their discovery work can be done for under $65 an hour versus the $200-400 they were accustomed to paying.

So now that this is the norm in our profession – paying $45-65 an hour for e-discovery work – the real question becomes, ‘What am I really getting for that money?’

Once you’ve driven down costs to the $45-65 per hour level for e-discovery, I would argue that the hourly rate makes little, if no difference, on your bottom line. The most important factor is the review rate of the attorneys. In fact, it’s really very simple math.

Let’s take a medium-sized matter: 30 gigabytes of data, or 400,000 e-mails.

Using a traditional (linear) review tool, an average review rate would be approximately 50 document decisions per hour for an attorney. By increasing the attorney review rate by 20 decisions per hour, the cost savings over the life of the project would amount to $125,000 and cut the project’s time by 25-40%. That more than compensates for a $20 per hour difference in an attorney's hourly rate, too.

That’s also a very conservative answer, because many companies now utilize a content analytic review tool that clusters documents together by topic versus a linear tool that only organizes data chronologically. Using the content analytic tool is likely to produce a 300-500% increase in the review rates, which saves in excess of $300,000 and 70% in time on that same 30GB of data. Content analytic tools cost more, but you can see where that difference can be accounted for.

So if you can accept this concept, it truly becomes a question of what you’re getting for your money. Many in-house departments have $48 an hour attorneys handle their e-discovery work, but ultimately the work is re-reviewed by outside counsel, there’s no fluid process in place and the client has no idea what kind of productivity the attorneys are generating. How would they know if they could be doing it better?

The question really becomes about how to increase review rates and thus productivity. There are many ways to do this, but it starts with experienced attorneys who know e-discovery and the technology. It’s supported by proven processes and talented project managers. Everything must be transparent: work closely tracked, benchmarked and learned from. It’s a collaborative, highly communicative process with outside counsel. And it can be repeated from matter to matter, creating more opportunities for learning and efficiency.

Focusing on the process and maximizing productivity -- not the hourly rate -- is where money is truly saved in e-discovery. The math really will speak for itself; all a client has to do is ask for it.

LegalTech NY: Review Less Data - and Do It Faster

Themes from 2008 and before: Review data faster
Theme for 2009: Review less data

After a jam-packed three days of meetings, panel discussions, and visiting with software vendors from across the country at LegalTech New York, it wasn't difficult to discern the two primary objectives for cost savings in the e-discovery realm: (1) Review the data faster and (2) Review less data. These topics aren't new, of course, but in particular the level of discussion about reviewing less data has clearly reached a new level. 

Reviewing Data Faster

For the past few years, the latest technology trends were utilizing content analytic tools when reviewing data. Leaders in this area include Attenex, Stratify, Metalincs, and Cataphora. In our experience, content analytical tools have proven to be three to five times faster than traditional linear tools. The result: hundreds or thousands of attorney hours saved and thousands or millions of dollars saved in performing the review of electronic data.

The benefits of content analytical tools is now well accepted, so much so that traditional linear software tools have upgraded their platforms to include content analytical capabalities. Indeed, over the past year Content Analyst Company has announced strategic alliances with KCura's Relativity, Onsite's eView, and most recently iCONECTnXT.

Why is this so important, other than the obvious benefits of getting the review done faster? Because it makes the hourly rate of the attorneys less relevant. For a company deciding to conduct a review with an LPO and its low hourly rate, it doesn't necessarily mean it's going to be less expensive if an onshore company's attorneys can produce review rates that are two or three times faster, even if the hourly rate is double. So when considering this type of work, it's always good to ask the e-discovery company about the review rates their attorneys typically achieve -- it makes it easier to compare apples to apples. 

Reviewing Less Data

In addition to software platforms adding content analytical capacity to their arsenal, the major players are also focusing on the next-largest cost associated with e-discovery: the amount of data collected for review. In the majority of our visits with software review vendors, the common theme was that either their tool now had early case assessment features or they were in the process of adding to their platform. To that end, we had a chance to visit with representatives of Clearwell, Metalincs, Planet Data, and Inference, just to name a few.

In utilizing the technology for our corporate clients, we have seen the benefits first-hand. We have found that by processing through an Early Case Assessment tool that one or two attorneys can quickly and dramatically cull down the data to be reviewed (see our previous posts). In an instant, you can eliminate all e-mails that do not fall within the relevant time periods by performing advanced date searches and filtering those results.

The next step is to identify all sender and recipient domains related to the particular custodian’s files that you are reviewing. With this feature, the attorney reviewer can eliminate thousands of e-mails that clearly have no relevance to a particular matter based upon the sender or recipient information. For example, all e-mails sent from eBay, Travelocity, newspapers and other subscription-type services provide fertile ground to eliminate thousands of irrelevant e-mails across all custodians collected. The ability to search across all data, based upon domain names, also provides opportunity to quickly and comprehensively identify all communications to and from legal counsel. With one click of the button, a single reviewer can segregate as “potentially privileged” all of the documents originating from or involving legal counsel into a separate workflow for a second-level determination of privilege. In addition, by typing in the law firm name you can quickly and comprehensively identify all attorneys associated with that law firm and all e-mail accounts associated with that attorney that have been collected. This feature adds an extra layer of confidence that you are capturing all attorneys involved in a particular matter.

By spending a small amount of time on the front end with these early case assessment tools, it is very achievable to reduce the amount of data that requires review by an additional 25-50% over the initial 20-30% filtered through traditional automated culling processes (de-duplication, file-type suppression). The net result – huge savings with a potential total reduction of 50-80% of files that require review.

One of the most popular drivers of visitors to this blog are searches for 'early case assessment tools,' which on a much smaller scale illustrates how much this issue is in the collective consciousness of the profession. And why wouldn't it be? If there's less data to review -- and we can review it faster -- it's going to make achieving significant cost savings a lot more realistic.

E-Discovery Pet Peeves

I attended a CLE recently that dealt with the topic du jour -- e-discovery. Seems you can’t pick up a CLE calendar without seeing at least two sessions dedicated to the subject, which I guess speaks to just how much it's dominating our thoughts these days.

I must admit this particular program was pretty good, however. At the end of one of the panels -- dealing with corporate costs for e-discovery -- someone asked the question, “What are some of your pet peeves?” The list was insightful so I thought I’d share the panelists' thoughts:

  1. Do not overpromise what you can deliver.
  2. You cannot approach discovery, particularly e-discovery, as a risk-less enterprise. That only creates unnecessary costs and burden and it will never be risk-less.
  3. Don't charge me for “futzing” with the technology. You should know the technology and if you don’t, learn it on your own time.
  4. Every case is matter-specific. It is ridiculous to say “this is the way we do e-discovery” and apply it to every matter.
  5. Clients pay for experience. You better have some.

And last but not least amongst the peeves was:

      6.   Lack of Predictability.

This last one we hear all the time and Counsel On Call has spent a lot of resources creating procedures to address. Our repeatable litigation support processes, and the data that we track and gather on each project for a client, enables that client to better budget each project going forward. In addition, we have done so many of these projects that our experience can add a large degree of certainty with respect to projected costs for even that first engagement.

I was glad to hear some interesting discussion on this subject, and it's clear that a larger percentage of in-house counsel are really taking control of their e-discovery matters -- and, whether working with their internal team or with their legal service partners, are developing progressive concepts of what they want their litigation processes to look like. We're fortunate that we have many clients that fit this mold, and it's exciting to see the results that some of these great concepts produce.

The LegalTech Jungle

It’s hard to believe that the annual Legal Tech conference is just around the corner, Feb. 2-4 in New York. Hundreds of vendors and thousands of attendees will descend upon the Hilton New York Hotel in what has become a must-attend event for those of us on the technology side of the profession.

If you’ve been to LegalTech, you know it can be a little overwhelming and it’s important to go in with a plan. While sorting through the masses, we have several distinct objectives while we're there:

  1. Review the latest technology tools that can reduce the time and expense of litigation in a number of areas. We are particularly interested in technology that can reduce the amount of data to process and review (see: early case assessment tools)
  2. Learn from legal and corporate counsel the challenges they face and the measures they have taken to address . Panels of interest include: "Executing eDiscovery Inside the Corporation," "Corporate Legal Department vs. Law Firm Perspectives," "Managing eDiscovery in an Alternative Fee Envrionment," and "State of the Art in eDiscovery Automation and Early Case Assessment"
  3. Meet with technology providers and share what we’ve learned about their services and discuss ways we can work more efficiently together

All of this will help us better serve our clients now and in the future. eDiscovery can be a jungle, and LegalTech aids our efforts to be the best safari guides we can be. In a couple of weeks I will post a post-conference summary with information you’ll hopefully find helpful.

Until then … wish us luck.

Early Case Assessment + Content Analytics = True Savings

We often hear about the most important factor in creating a cost-effective e-discovery review: the review rate of the attorneys. Without question, the use of a content analytic review tool has greatly enhanced the ability to increase review rates for attorneys who know how to use these tools -- by 3 to 10 times versus a linear tool.

This improved productivity goes directly to the bottom line and dramatically reduces the largest component of the e-discovery cost structure: the attorney reviewer expense. Content analytic tools also greatly reduce the manpower and duration required for review.

Here’s where people often get stuck: The upfront cost of using a content analytic tool is (usually) significantly higher than that of a linear review tool. But as many have discovered, those upfront costs are typically recouped many times over by the end of a case because of the efficiencies that are gained in using a content analytic tool. The additional good news is that there’s a way to decrease the upfront costs by culling the amount of data needed for the review. These early case assessment tools are equally, if not more important, to the bottom line.

Early case assessment software platforms (such as Clearwell, Metalincs, and Autonomy’s Aungate Investigator & ECA, among others) enable corporations and law firms to dramatically and intelligently reduce the amount of data that needs to be reviewed. These programs offer a sneak peak at the data at a fraction of the cost of loading for review with a typical content analytic tool. In addition to standard culling methods like de-duplication and file-type extractions, early case assessment tools provide a means to develop legally defensible keyword searches, identify key players in the litigation (or more importantly identify non-players), and allow for bulk coding of clearly non-relevant materials or potentially privileged documents prior to loading into the review platform.

A quick example: A company's initial collection totals 300,000 documents for review. Using an early assessment tool, that number is dramatically reduced through de-duplication (20%), excluding privileged documents eliminates (another 10%), performing a multi-phrase keyword search (25%) and identifying the responsive data set (70%). The final number of documents to be loaded into the content analytic tool: 48,600 (or just 16% of the original collected documents).

Common volume reduction achieved through an early case assessment tool is 70-80% (the companies mentioned above have case studies on their respective websites that detail even greater reductions). The point is clear: reducing the volume of data, combined with the increased speed in which it can be reviewed via a content analytic tool, is a winning combination for corporations and law firms seeking to better manage e-discovery matters.

It’s always fun to be part of a meeting in which the realization sinks in that not only will the work product be better, but it will save hundreds of thousands (if not millions) of dollars.

Q&A: Sue Dyer, Senior Litigation Counsel, HCA - "A Repeatable Process"

Sue Dyer has spent the last seven years in Hospital Corporation of America (HCA)’s 50-attorney legal department and, as Senior Litigation Counsel, has been on the front lines of HCA’s development of a national e-discovery approach and protocol, a ‘repeatable’ process from which the company is already seeing benefits.

The largest for-profit hospital operator in the U.S., HCA had $26 billion in revenue in 2007 and was #87 on the 2007 Fortune 500 list. Ms. Dyer was nice enough to speak with Lawdable about HCA’s litigation (and specifically e-discovery) initiatives:

Lawdable: Discuss how the management of the e-discovery process has changed in the last 2-3 years, and/or how HCA’s approach has evolved.

SD: We are light years ahead of where we were just two years ago. Even though we’ve been focused on e-discovery for several years, in the last two years we’ve spent a lot of time educating ourselves about our IT systems and the multitude of e-discovery products on the market. Our goals have included the development of accurate and cost-effective processes that are repeatable. We’ve identified partners that share our belief in collaboration and that can help us accomplish these goals and, as a result, we have been able to implement many initiatives in the last year. Our approach also evolves with the evolving law in this area and the development of available technology.

What we’ve seen is that, with a repeatable process, we are able to collect data from one e-discovery project that guides us on each subsequent project. The data collection also helps us to better predict the expense of subsequent and/or similar cases.

L: Talk about your e-discovery communication process (and what you establish) with outside counsel and other legal service providers. How do you manage the process?

SD: We are actively involved at the beginning of each project in order to get the team acquainted with each other, to identify the location of the effected data and to participate in the project planning. Due to our large geographic footprint, we work with a lot of

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"IM" Reviewing That Data

All the discussion in e-discovery typically revolves around e-mails, and obviously that’s where the bulk of electronic communication takes place. But we can uncover some very helpful information from Instant Messaging, too.

Yes, that’s correct – all IM conversations can be collected and processed for review when using the right review software tool (and there are many good ones out there). That means all those employees who keep their Yahoo or AOL messaging open all day represent another significant source of data than can be classified as electronically stored information (ESI).

While there’s been a moderate amount of discussion about this issue, in many industries it has flown under the radar screen or been pushed to the side because it was seemingly too difficult of a matter to deal with properly. That’s not the case. A recent example: I managed a team of five attorneys that utilized Attenex software to review the e-mails and IMs of a corporate client. As a content analytic review tool, the challenge with IMs is that the slang used in texting is very distinct from normal communications and offers a different type of challenge when trying to organize these files by their concept. However, by segregating the IMs and combining them with advanced timeline and keyword searches, we were able to review the universe of IMs in context and with great efficiency. In fact, each reviewer averaged more than 3,000 document decisions per day (e-mails and IMs), which resulted in dramatic cost savings in reviewer expense for the client.

There are certainly some very robust tools that can make the IM part of the review go smoothly; the point is that it should not be forgotten (or avoided) in the process and to make sure your project manager is asking the right questions on the subject.

The Client's Best Interest

Recently I participated in a conference call with a prospective client about a voluminous e-discovery assignment. The call involved all of the players: several of us from Counsel On Call, the corporate legal department and its outside counsel (a prominent East Coast firm). These collaborative meetings are occurring more frequently now, which is refreshing. 

This trend roots from the determination that most law firms were not created to handle today’s e-discovery, but are better positioned to oversee and manage the discovery phase of litigation at a macro level. The client wants to save money on the review, let the law firm manage the process, and have an efficient communications process -- so a team approach involving corporate counsel, law firm lawyers and companies that provide litigation support services is practically a requirement today. It is this collaboration -- and open communication from the assignment's onset -- that ensures an excellent work product, as all of the players are working at their best use from Day 1. The process is more efficient, quality control is central and it ultimately better serves the client's interest and goals. It’s a business-partner approach.

Buyng into this approach is a big step for a law firm to take, but a very necessary one because legal departments need real business solutions and cost containment. The days when a firm can justify the cost of 50 associates (at $250+ per hour) conducting a large e-discovery review are over. What was somewhat surprising about the conference call, however, was that the law firm was Counsel On Call’s biggest advocate, as opposed to viewing us as the competition. But it seems that many law firms realize -- some organically, some by necessity -- that developing quality partnerships can be an asset to their practice (and put them in a better position with their clients). The ABA also seems to recognize (and bless) this outsourcing trend, as its Standing Committee on Ethics and Professional Responsibility recently came out with Formal Opinion 08-451 outlining lawyers’ obligations when outsourcing legal support services.

Much like what this law firm coordinated (and what legal departments are insisting upon these days), it's always good to get everyone at the table together, bring all the challenges/issues out, and discuss the best possible solutions. We're seeing a lot more of this, and it's because a lot of money can be saved throughout the process by collaboratively hammering everything out on the front end.