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.)

This was the genesis of the Discovery Symposium seven years ago when 35 in-house attorneys first gathered in Nashville in a law firm- and vendor-free environment to discuss the challenges they were encountering. Counsel On Call coordinated the topics and stepped out of the way. Today, the issues of 2009 are not only still present, but are also more complicated. Roles have changed. Brilliant people have changed their respective outlooks. Priorities and strategies have changed. And so has the programming.

We limit the number of Discovery Symposium attendees to 75 because we’ve found that number consistently produces the most open dialogue in the room for each panel. This year did not disappoint in that regard.

From panels on “Getting Maximal Results in Information Governance” to “Broadening the Big Data Model” to “Quantifying Success with Business Intelligence,” the topics were fresh and garnered enthusiastic audience participation. For IG in particular there seems to be a fair amount of frustration with policies that must be written and can’t be enforced consistently, but panelists Jessica Watts (Hewlett-Packard), Mike Lisi (Fidelity Investments) and Scott Veenendall (UnitedHealth) provided very helpful examples of what has worked and what hasn’t at their respective companies that the audience appreciated.

The “Business Intelligence” session was particularly enlightening. Led by two well-known experts in the financial services industry Counsel On Call is proud to partner with on these initiatives, the session began with a simple question: “Why?” Why is it important to track the data you want me to? What is the benefit of providing you access to our data to do it, or to lock down our resources to help you? From there, the panelists provided examples of the data that is most meaningful to them: data that provides the basis for judges to rule on reasonable amounts of discovery, data that wins cases and allows them to budget with precision.

But it was an evergreen topic of interest at Counsel On Call’s Discovery Symposium that garnered the most discussion this year: Technology Assisted Review (TAR). In one form or another, we’ve covered this topic since the first Discovery Symposium, but it’s only now that there is a true critical mass of regular users, as well as an educated group of in-house attorneys who have an understanding of TAR but have not yet deployed it for a variety of reasons.

Led by John Tredennick (Catalyst) and Susan Hammond (Regions Financial), the session began with an overview of what TAR really means, encompassing Continuous Active Learning, predictive coding and even early case assessment-focused platforms. But the two issues that drew the most interest asked: What are the best cases to utilize TAR, and does it really provide the value in-house departments are searching for?

For the former, the general consensus was that TAR could be used on any case, but for those without an overwhelming volume of litigation there was a ROI level after 50,000 documents. This number was reaffirmed in a survey we conducted with our attendees about their use of TAR prior to the symposium.

For the latter, related question, there is still much debate. Many attendees firmly believe that aspects of TAR are continually utilized (and fully utilized on large cases), but with core teams of client-dedicated discovery attorneys who know the technology and consistently get results. That is certainly a principle at Counsel On Call – no matter how much a platform can reduce a data set or how quickly it can identify the responsive documents, it is only as good as the attorneys who train the tool and work within it.

For smaller departments or for those companies that do not have significant litigation portfolios, it is a hard proposition to sell internally. Many of these companies are very dependent on outside counsel and are vulnerable regarding technology decisions. To a person at DS7.0, however, these attorneys said the discussion on this topic was going to help them shape new policies for either anticipated litigation or to be ready with their own process for any potential litigation.

Again, DS7.0 was a great event and the post-event survey scores – an average 4.39 out of 5.0 for the panels – were outstanding. We are already planning next year’s event, which will be held in late April or early May in Nashville. If you are an in-house attorney or manager of the discovery process and are interested in learning more about DS8.0, please visit the Discovery Symposium website and contact us to get on the event distribution list.

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

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

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

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

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

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

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

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

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

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

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

Discovery Symposium 2.0: Brief Notes & Quotes

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

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

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

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

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

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

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

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

“Yes, the action is in the forecast.”

- Discussion during ‘The Budgeting Puzzle’ panel

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

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

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

Energetic Group for Discovery Symposium 2.0

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

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

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

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

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

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

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.
 

Live from DS1.0 ...

Greetings from the packed Discovery Symposium!

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

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

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

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

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

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

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