Artificial Intelligence, Lawyers and What The Future Might Hold

The following post is related to the upcoming Vanderbilt Law School’s conference on artificial intelligence, April 13-14 in Nashville. More information and registration can be found on the event website.

Our robot overlords are actually much nicer than we anticipated. Helpful, even. And we’re excited to be part of a great event at Vanderbilt University Law School on April 13-14 talking about our digital friends. More on that in a moment.

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DS7.0: Fresh Topics, New Challenges and Solutions

Counsel On Call’s Discovery Symposium 7.0 was recently held in Nashville, Tenn. The annual two-day event was a good balance of relevant large data topics, fun networking between in-house attorney peers, and open dialogue on the issues challenging the legal industry today.

The Symposium’s program is full of experts, but not the typical people one sees at other events. Instead, our speakers are the in-house attorneys who are actually in the trenches for their companies, trying to solve challenges that are ever-changing while learning new technologies and processes – doing it all on a shrinking budget. The Symposium provides our attendees – some are GC’s, others Heads of Litigation or Discovery, and others manage specific parts of the process – some of the intelligence necessary to do all of these things. (See the DS7.0 agenda and panelists here.)

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Three Factors that Make the Case for Lawyers Using Social Media

In a recent article in Law Technology News, there is a discussion about social media usage among law firm associates. As is usually the case when technology moves forward, there are those who embrace it and those who do not.

No surprise here that lawyers have been more reticent as a group to embrace the use of the latest technology than others. But times seem to be a-changing, and by 2014, investing in social media will no longer be a luxury – it will be a necessity, according to a recent Forbes article.

Glen Gilmore, a New-Jersey-based solo practitioner and social media expert (ranked number 15 on Forbes’ list of social media influencers), found it surprising that only one-third of mid-level associates are “leveraging social media [because] the failure [of] law firms to ‘get’ social… [it] is a terrible disservice to their clients, most of whom are using social media for personal and business purposes.”

What are the factors causing lawyers to participate in social media networks? My list would include: more personal usage, seeing other lawyers surpass them in knowledge and use of social media, client demand and the ability to bill their time, and the ease of research and networkability. I’ve elaborated on these points here:

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A Summary of the Proposed Amendments to the Federal Rules of Civil Procedure

This is a guest post by Counsel On Call attorney, Tiffany Fox.

In June 2013, a series of proposed amendments to the Federal Rules of Civil Procedure was opened for public comment. Most of the proposed changes affect discovery and the growing use of technology in the preservation, collection and production of ESI.

The changes addressing discovery can be broken into four categories: (1) Improvement of judicial case management, (2) Proportionality of discovery, (3) Advancing cooperation, and (4) Creating a higher standard for sanctions for spoliation.

  1. Improvement of judicial case management: In the first category, the changes focus primarily on the case management aspects of litigation. There is a clear intent to speed the process through increased cooperation and specific restrictions on certain stages of litigation. Rules 4(m), 16(b) and 26(d) would reduce the time allowed for filings or issuing scheduling orders, and would allow for discovery requests to be issued earlier in the process. By forcing the parties to keep things moving, the idea is that a judge will spend less time cajoling responses and can get cases in and out of court a bit faster.
  2. Proportionality of discovery: In the second category, proportionality is being added explicitly to Rule 26(b)(1), which limits the scope of discovery. Currently, proportionality is implied by the language used and has been interpreted that way in case law, but as ESI has increased exponentially in recent years, the new, stronger language would give parties less “wiggle room” to request additional discovery. Parties requesting discovery would now have the burden to prove that the requested discovery is proportional to the needs of the case. Additionally, reductions in the number of depositions and interrogatories and time allowed for each (Rules 30, 31, 33, and 36) would ideally create reduced expectations in the minds of practitioners; even though a judge may still adjust the number of depositions according to what is appropriate to a given case, having a smaller presumptive baseline would encourage a smaller total. 
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Simplifying the Legal Holds Process for Faster Digestion: Part 4

Finishing her series on legal holds, Counsel On Call attorney Tiffany Fox gives specifics on how to properly follow up with custodians to ensure legal holds are received, understood and complied with, as well as a summary on the changes to Rule 16(b)(3), 26(f)(3) and 37(e).

Simplifying the Legal Holds Process for Faster Digestion (for review):

  1. Preparation: The first step in a defensible legal hold is preparation.
  2. Identifying the Scope of the Hold: The second step is identifying the people who need to receive the hold and what information needs to be preserved.
  3. Issue a Hold Notice: Only after you have spent at least some time identifying custodians should you take the third step of issuing a hold notice.

The fourth and final step in a defensible legal hold process is follow up. It’s not sufficient to ask custodians to preserve data and then do nothing to ensure that they do. Courts will sanction a party that turns a blind eye to what a custodian does or doesn’t preserve, regardless of how innocent counsel was in making the decision. As an attorney you have an obligation to take reasonable steps to ensure that legal holds are received, understood and complied with.

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Simplifying the Legal Holds Process for Faster Digestion: Part 3

Continuing her series on simplifying the legal holds process, Counsel On Call Nashville attorney Tiffany Fox identifies the third step, which is issuing a hold notice. After you've preserved the information that may lead to discoverable data and identified the scope of the hold, you must issue a hold notice.

Simplifying the Legal Holds Process for Faster Digestion (continuing the series): 

  1. Preparation: The first step in a defensible legal hold is preparation.
  2. Identifying the Scope of the Hold: The second step is identifying the people who need to receive the hold and what information needs to be preserved.
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Know Your Technology and Its Best Use

We have built our E-Discovery Division around the principle that we are “technology agnostic,” meaning we have never purchased or developed our own platform, or partnered with one software provider that might tie the hands of our project managers and attorneys on different matters. We always want to be able to recommend the right tool for the data that needs to be collected and reviewed.

In practice, this means we’ve worked with more than 75 different platforms and have a robust understanding of the technology marketplace – whether it involves predictive coding, linear review or anything in between. We know the platforms that perform well with different types of data and the vendors that have the infrastructure and service to support projects of varying sizes, complexity and deadlines. The objectivity we offer in a confusing and rapidly changing segment of our industry is very appealing to our clients.

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Discovery Symposium 5.0

It’s Discovery Symposium week here at Counsel On Call, which is one of our favorite times of the year. We invite many of our clients and e-discovery managers to Nashville for 24 hours of high-level programming, with plenty of fun mixed in.

It’s hard to believe this is our fifth year hosting the event. The symposium has grown from a dedicated group of 40 clients in 2009, who wanted to speak candidly about discovery issues to a larger event capped at 75 people this year. The goal has always been to foster open dialogue about practical issues and to identify best practices. We’ve found throughout the years that to accomplish this we couldn’t allow the group to get too large.

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Understanding Legal Technology Terms and Pricing

I am not an information technology vendor nor do I play one on TV. However, I do interface with many technology vendors and get asked by clients to interpret technology terms and pricing structures all the time. Here are some tidbits to chew on that may help you at least understand the issues and decision points that will need to be made (so you’re not making them in a vacuum devoid of pertinent information).

For all the IT professionals or vendors that may dispute what I say, remember that I am just trying to simplify for lawyers what you do on a day-to-day basis. Let’s start with some terminology that can cause confusion to lawyers.

What do these terms mean?

  • Processing – I have often heard from lawyers that this is the most mysterious component, the least understood and, quite frankly, the most questioned term when they look at the bills. Processing is what has to happen to take the documents out of their original/native system (Outlook, Lotus Notes, Word, PowerPoint, etc.) and move it to the review software (unpack it,  index it, etc.) – extracting the mysterious metadata.
  • Metadata – Everyone always says it’s “the data about the data,” which is about as helpful as your mother telling you to look up the spelling of a word in the dictionary. Here’s a simple example. When you create an email it has the message that you wrote. But it also has a date, a "To" field and a "From" field. That’s metadata. Or if you create a Word document you create the text of the document, but Word also captures you as the author and the date the document was created. That’s metadata. There’s much more to it, but that’s enough to get you started.
  • De-duping – For most vendors this is a normal function of eliminating or suppressing duplicate documents so the review team only needs to look at one copy of it (For example, think of an email sent to seven different people. The attorney review team will only look at one copy of it.) This greatly reduces review and storage costs, increases the overall speed of review and provides for consistency of coding between identical documents.
  • Early Case Assessment (ECA) – The most overlooked portion of an ediscovery project. This is the time you should be spending on reducing the volume of documents that need to be reviewed. Key word searching, eliminating irrelevant documents and sampling and validating terms are all part of ECA.
  • Predictive Coding – This means a lot of different things to different vendors. Basically it’s using the computer to help you get to the most relevant documents first instead of reviewing every document one at a time. It is often a means to prioritize the documents so you’re looking at the most relevant ones first.

The other area I am asked about a lot is how to compare pricing between technology vendor bids. What do all these terms mean? Processing. Monthly user charges. Per GB pricing. Production costs. PM time. It becomes almost impossible to properly compare pricing sheets.

The way I advise clients to handle this is to give each vendor the same task. Have them tell you what it would cost to deal with a case of 50-gigabyte size or 250,000 documents (mostly emails), and then what other parameters you might add that are unique to your project. Total technology project cost is the best way to truly compare bids that you receive.

See? It gets confusing quickly, and it’s easy to hide costs in bundled pricing offers. As lawyers in 2013, we have to better understand technology if we are to zealously represent our clients. Hopefully this is just a little start to help de-mystify some of the terms you will begin to encounter. This will help you on the road to a deeper understanding of the processes and things that are ultimately your responsibility. It is imperative to commit these terms and their definitions to memory in order to perform your job duties with excellence using most current methods available.


My, What a Difference a Year Makes

Disclaimer (A bit tongue and cheek, but I do think this is necessary as there are some critiques below):  The views and opinions expressed herein are solely those of the author and should not be attributed to Counsel On Call, Inc., or any of its officers, attorneys or employees.

I’ve had the good fortune to attend the past two annual conferences for the Association of Certified E-Discovery Specialists (ACEDS) in Hollywood, Fla., held at the superb Westin Diplomat.  In comparing the two conferences, all I can say is, “What a difference a year makes.”

First, and purely incidentally, the weather in 2012 was sunny, warm and generally quite pleasant. This year, the weather was overcast, rainy and a bit cooler. 

Just as the weather cooled a bit I think I detected a slight “cooling” of the conference attendees’ collective enchantment with the so called predictive coding technology.  In 2012, predictive coding was going to cause an industry and professional upheaval, eliminating the need for discovery (contract) attorneys, cutting costs, improving accuracy and possibly shifting influence between different stakeholders in this area.  One year later, we have experience  – more reported court decisions directly on point and more vendor entries into the marketplace.  With this collective experience, the conference attendees had a cooler, more nuanced view of the technology.

Please don’t misunderstand, there’s no question that predictive coding (also known somewhat synonymously as technology-assisted review or simply “TAR”) is here to stay and should only improve with time.  Rather, the bloom has worn off, and practitioners are discovering that, although at times and for certain types of matters, TAR improves efficiency, overall quality of a review and can significantly lower overall costs. Nevertheless, it is neither a cure-all nor the disruptive technology that some claimed last year.

I think there are several reasons for this maturing of the collective view:

  • The term predictive coding (trademark issues aside) seems to mean different things to different people, hence the use of the more generic TAR designation. This causes confusion among potential customers.
  • Some technology vendors may have rebranded older technology as TAR, perhaps thereby lessening the user experience.
  • Different TAR tools have different “blind spots” that limit their utility, e.g., image files and spreadsheets may not be considered by the analytics.
  • Far from removing human judgment from the process, TAR applications may increase dependence on human judgment.  For example, mistakes by “subject matter experts” can be amplified.  Alternately, I suggest trying your hand at picking “exemplar” documents to teach the computer – a document might be technically non-responsive to the litigation but would nevertheless have excellent teaching parameters.
  • TAR itself is not inexpensive.
  • TAR reduces data but does not eliminate the need for some linear review, either with quality control or during the construction of a privilege log.
  • Not all matters are suitable for TAR, ether due to the size of the case or the type of data.

Counsel On Call has always been a solid proponent of predictive coding as well as an early adopter.  Vendors now, however, call their technology predictive coding without the functionality.  There is no question that predictive coding is here to stay; rather, its potential is still less than hyped.

I’m looking forward to attending next year’s ACEDS Conference.  While not perfect (panels are too large and too much time is spent on speaker introductions), it’s the only conference of which I’m aware that is focused on the e-discovery practitioner.  ACEDS also seeks to professionalize this field, and this is a good thing.

Maybe next year the weather will be warmer.  It will be interesting to take the attendees’ temperature on TAR as well.


Video Interview: Discussing the role of social media in litigation with LXBN TV

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Following up on the post I wrote about social media in 21st century litigation, I had the opportunity to speak with Colin O'Keefe of LXBN on the matter. In the interview I discussed how social media evidence is becoming more prevalent in corporate litigation and offered my thoughts on how companies can prepare for it. 

The Use of Social Media in 21st-Century Litigation

Recently I traveled to Birmingham, Ala., to attend a Symposium titled "The Use of Social Media in 21st-Century Litigation," hosted by the American Journal of Trial Advocacy. It was held in the moot courtroom of the school of law, and was well attended: probably more than 200 attorneys and law students in all.

The Symposium was a precursor to an article that will be published this spring on social media issues in the American Journal of Trial Advocacy. It consisted of two panels and one keynote speaker. The presenters were very knowledgeable and the moderators kept the discussion relevant and at a good pace.

Panel One, “Pretrial and Discovery,” was very practical in its application and instruction. Each speaker was given 10 minutes to present, which was followed by a panel discussion with some Q&A. The panelists included:

  • Judge John L. Carroll, dean and Ethel P. Malugen Professor of Law at Cumberland School of Law
  • Steven C. Bennett, partner at Jones Day (New York)
  • John G. Browning, partner at Lewis Brisbois Bisgaard & Smith (Dallas)
  • T. Roe Frazer III, attorney and managing executive for Digome and Cicayda (Nashville)

Here are some of the nuggets that stuck with me from the session:

  • Frazier noted that three quarters of internet users use social media or blogs every day, every app is social media and “social media is like an uber-diary.”
  • Browning continued along those lines, stating that this ‘diary’ consists of what you’ve been doing online, where you’ve been and where you’re going.
  • Bennett mentioned that “Twitter has over 400 million users per day (2012)” and that “competent representation includes knowing about and pursuing social media.” He cautioned us by stating that “there is a ‘wayback’ machine coming for social media similar to the current internet ‘wayback’ machine and because of this nothing is ever erased.”

Something to consider before posting anything on social media.

The keynote speaker was The Honorable Paul W. Grimm, District Judge for the United States District Court for the District of Maryland. His talk and his paper were focused on authenticating social media at trial. He stated that “social media shows state of mind and authenticating social media gives practitioners the most difficulty.” His talk was both informative and entertaining. Attendees could tell he was looking for a case where he could expound on the steps necessary to authenticate social media.

The second panel was moderated by The Honorable John E. Ott, chief magistrate judge, United States Northern District of Alabama, and the following panelists:

  • Dr. Cathy Parker, professor of journalism and mass communication, University of North Carolina, Chapel Hill
  • Eric P. Robinson, professor at City University of New York Graduate School of Journalism
  • J. Paul Zimmerman, attorney at Christian & Small (Birmingham, AL)

Panel Two was entitled “Issues at Trial.” These issues related to First Amendment rights to know what’s going on in the courtroom versus the use of social media. The discussion covered the use of social media by journalists, the public, the jury, the lawyers (voir dire) and even the Judge. The topics ranged from the annoyance of hearing someone typing on a laptop, to the invasion of privacy of jurors, to whether you had to notify someone that you were investigating them via social media. It ended with whether it’s appropriate or not for a juror to friend the Judge on Facebook.

I’ve presented on this subject several times myself, and our discovery teams are seeing more and more of it with each passing review. But as this panel reminded me, there’s no such thing as being “up to speed” on social media – the ways people interact and communicate keep changing, and there are always new vendors and tools that are adjusting to deal with these platforms.

In many ways it’s a nightmare for our clients to manage and regulate, so to speak … but it’s not going away, that’s a certainty. Events like these are a great way to hear how others deal with these challenges and where they anticipate issues down the road.

Each of the panelists and the keynote speaker wrote articles that will be published this spring in the American Journal of Trial Advocacy. This would make a good addition to your law library.

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.

"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.

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.

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.

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.

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.

It's 2 a.m. Do You Know Where Your E-mail Is?

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

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

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

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

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

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

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

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

ESI in 2010: Trash or Treasure?

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

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

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

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

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

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

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

Don't Hit The Snooze Button On ESI Management

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

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

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

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

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

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

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

Cost Predictions Rely Equally on Technology and People

I’m a little late on this one, but this article outlines the use of technology to budget and control the cost of a document review project and could be helpful to some folks. It's sometimes an overwhelming topic, but there's no question that law-related technology tools have advanced in recent years and, when used properly, can drastically reduce the overall data set that is needed to review, code and produce. De-duplication, near dupes, key words, clustering of some type or another and document-ranking technology all can be very effective steps to take. In fact, if you are not using the available technology to reduce the data set needing to be reviewed, it’s practically scandalous.

I've seen more than a few very professional, normally sane in-house counsel practically lose their lunch when they hear about the initial amount of data that must be reviewed on a case. When the word "terabyte" is uttered, or there are three digits in front of "gigabyte," it can be somewhat alarming... that cash register sound starts to go off inside your head. But once everyone has calmed down, reason sets in and the processing stage begins. A majority of that data is going to be culled out. If using an early case assessment (ECA) tool, another huge chunk of data will be eliminated. All told, as much as 95% of the data could be vanquished. Now we have an amount of data we can work with. It can certainly be budgeted, too -- and if the review partner knows what it’s doing, it can be very accurate and for even less money than anticipated.

So technology by itself is not the final answer. Technology combined with knowledge and experience are the keys to understanding the complexities of such projects and bringing back a semblance of simplicity and predictability. Yes technology, used skillfully, can reduce the overall data set and the volume that needs budgeting. But when coupled with skilled, professional reviewers and experienced project management – known quantities that understand the entire collection, processing and review stages, software, and how to measure results and benchmark data – you can better prepare a cost forecast that can be relied upon for the duration of the project and on subsequent matters. I feel confident in stating that any in-house attorney who has worked with a good project manager in particular will gladly share how invaluable that PM has been to his or her department.

So if you aren’t using 1) e-discovery specialist project managers and attorneys and 2) data reduction and/or ECA tools, there are significant savings to be had.

Additionally, in the normal course of business you can also reduce the overall cost of a review project by creating and following a record retention policy, as well as using project management consulting to help with other pre-litigation planning. These measures reduce the overall data set, help you understand where your data is located, and give more certainty and predictability in later creating the review budget.

Data is key in today’s world; technology has made it readily available, but you also need a cohesive approach to tap all of its benefits. It might sound like a tall hill to climb, but there are some very simple steps that can be taken to start the process without causing too much pain. In the end, the cost savings and improved processes that are gained will make all that work worthwhile.

It's Your Fault! No It's Your Fault!

I decided I would begin my Lawdable blogging career with a look at a somewhat light piece of e-discovery case law … if there is such a thing. I do follow case law and I hope that my future posts on the subject will offer more of a “this is the potential bottom-line effect” versus a strictly academic viewpoint – I find that to be much more practical (and interesting). In the meantime, I look forward to your suggestions or thoughts. Here we go:

Lawsuits are about conflict and not always just between the parties. Is there a client that hasn’t complained about its attorney, or a lawyer who hasn’t bemoaned the actions of his/her client? It’s just part of human nature. But what happens when one or both of you fail to fulfill your preservation obligations, and this leads to sanctions? Who pays the piper?

The obligations of the client and the lawyer are clear: you must preserve Electronically Stored Information (ESI) that is relevant to the case at hand. The lawyer must provide the legal advice on what is potentially relevant and the practical advice on how to preserve it – and then monitor the client’s implementation of that advice. Having and implementing consistent best practices will be your best shot at fulfilling this obligation.

In Green v. McClendon 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009), ESI was lost when the client had “the son of a friend” re-install the operating system on her computer. The lawyer apparently did not properly implement a litigation hold and did not properly inspect and search for relevant ESI on that computer before the son of a friend “helped out.”

The court sanctioned both the client and the lawyer for the costs of the motion to compel and noted that if the court found out later that bad faith was involved in the loss of the ESI, the court would impose an adverse inference.

The final issue for the court was this: how to allocate blame between the client and the lawyer? The court concluded that they should work it out amongst themselves and present the court with a plan. (Really, how do you think that conversation went?) If, however, they are unable to agree on cost allocation then they could present the issue to the court “for determination.” (If that were to happen, does anyone else see any potential conflict there?)

The bottom line is this: the lawyer and the client must understand their obligations to preserve ESI. The lawyer and the client must work together to implement the plan. Working together and following best practices to fulfill the preservation obligation will keep your side moving in the right direction and prevent sanctions – instead of battling each other when sanctions are imposed.

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.

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.

Continue Reading...

The Document Retention Policy: A Tough One

As part of its ongoing series of discovery savings throughout the discovery process, Clearwell’s e-discovery 2.0 blog has a post up about document retention policies. This issue was a very hot topic at Counsel On Call’s Discovery Symposium 1.0 in May and panelists on our “Retention and Holds” session said it is one of the most pressing issues facing litigation managers today.

Attendees at DS1.0 cited several very specific examples of why they have a difficult time implementing company-wide document retention policies, including:

  1. Different departments within the company are required to hold onto different documents for different periods of time. While a corporate employee at headquarters can likely delete e-mails at any time, an engineer in a field office may need to retain documents for reference purposes, often for years.
  2. Some departments/employees do not have computers, so they have everything in hard copy form. The cost of reviewing these documents would be a considerable expense, and the company cannot simply dispose of the documents without reviewing them.
  3. How do you decide what to keep and appropriately define it so that everyone is on the same page? Try defining “necessary business records.” The scope of this phrase is often difficult to get one’s arms around and can be very arbitrary.
  4. The goal is to make the document retention process both “defensible and practical,” but questions linger about how to balance the scales between these two goals.

These challenges are independent of a company’s size; we heard the same issues discussed by both small and large companies. There were several companies that had implemented successful procedures, and a common theme was that their respective IT departments were running point on the process with support from legal and security.

Some of the solutions to these challenges – along with policies for litigation holds -- were discussed at length during DS1.0, summaries of which can be found here. We’re also looking forward to updates on the implementation of successful protocols from attendees during future discussions and at Discovery Symposium 2.0, and we’ll post updates as they become available.

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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Recap: Working With My Law Firm(s): The New Dynamics

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

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

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

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

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

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

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

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

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

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

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Recap: Software Decisions Good and Bad

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

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

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

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

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

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

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

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

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Recap: Retention and Holds, Preservation and Collection

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

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

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

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

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

1. Identify when the preservation obligation begins.

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

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

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

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

3. Who is in charge with respect to technology?

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

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DS1.0 - Day 2 Begins

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

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

I'll post more later today...

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

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

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

Live from DS1.0 ...

Greetings from the packed Discovery Symposium!

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

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

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

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

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

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

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

Discovery Symposium 1.0 Promises To Share Best Practices

Next week, we will have the pleasure of welcoming 35 senior in-house litigation managers, representing 25 companies, to our home base in Nashville for the inaugural Counsel On Call Discovery Symposium 1.0. It’s very exciting for us, as it provides the opportunity to get several of our clients in a room together and talk about best practices in discovery and litigation support.

We tried to limit the event to about 30 attorneys to foster a healthy environment for exchanging experiences, and we’re pleased that the demand has been so high. It's a great program – discussing all areas of discovery – that is completely led by the attorneys who are in the trenches and dealing with these challenges on a daily (hourly) basis. We’re proud to be by their side, but in this instance we’re merely facilitators and believe that’s going to help generate the best possible dialogue among some of the brightest minds in the in-house profession.

Here are a few of the session titles:

  • “Good Policies for Retention and Holds; Standards of Care in Preservation and Collection”
  • “De-dupe, Near Dupe and Being Duped: Software Decisions Good and Bad”
  • “Working With My Law Firm: The New Dynamics”
  • “Creating Your Own Discovery Team”
  • “Budgeting for E-discovery: Not a Pipe Dream”

We will likely produce a recap that shares some of the best practices discussed during the event, and if you’re an in-house attorney interested in reading it, please send us an e-mail and we will add you to the distribution list. Also, based on the response this year, we are considering opening up the event to non-clients in 2010 (event will be in Atlanta or Boston), so please indicate if you would like to receive information when it becomes available.

And if you like Twitter, we’d recommend following Dennis McKinnie, formerly a general counsel of two publicly traded companies, formerly with PoGo’s IP litigation group, and a past Staff Counsel to the Supreme Court of the United States … he’s been the Executive Director of our Atlanta office the last four years, and he just got his Twitter account up and running and will tweet during the program. Dennis is well-known for his txt/Blackberry skills, so we’re going to put him to the test.

Richard Stout will also post on this blog from the event, so don’t forget to check back May 13-14. Subscribing to the blog (on the right side of this page) is the easiest way to make sure you don’t miss an expanded update.


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.

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.

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.

"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.