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Monthly Archives :

March 2011

Managing an eDiscovery Contract Review Team: Use the Team’s Knowledge

The document review effort is the litigation team’s first in-depth exposure to the client’s electronic documents.  The review staff will have more exposure to a broader range of documents than anyone else on the team, at least in the beginning of the case.  When you are using contract reviewers, they will go away when the review is completed.  You don’t want to lose what they’ve learned when the project is over, so you should take some steps to use their knowledge.  Here are two things you can do:

  • Ask for summary memos:  Ask supervisors on the project to prepare a summary memo for each custodian.  To get good summary information you should provide specific instructions for the information you would like included.  You could, for example, ask for this information about each custodian:
    • A description of the types of documents in the collection (for example, letter, monthly reports, work sheets, and so on).
    • A description of the general topics that are covered.
    • An approximate date range of the documents in the custodian’s files.
    • A list of key individuals (and organizations) with whom the custodian frequently corresponds.
  • Interview the review team:  Meet periodically with the group.  Spend an hour at the end of a workday and interview them about what they are seeing in the collection.  If there are certain topics you are hoping to see covered in the documents, ask the team about them.  Likewise, if there are certain topics that you hope not to see, ask about those as well.  This type of exchange will serve three purposes:
    • It will give senior litigation team members useful information about the document collection.
    • It will be useful for review team members to learn about what other team members are seeing.
    • It’s great for team morale.  It really reinforces that their work is important and that their input is valuable.

What steps do you take to make use of what the review team learns in the document review?  Do you have suggestions you can share with us?

This concludes our blog series on Managing an eDiscovery Contract Review Team.  I hope you found it useful!

Please share any comments you have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Trends: Tom O’Connor of Gulf Coast Legal Technology Center
 

This is the eighth of the LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and asked each of them the same three questions:

  1. What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?
  2. Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Tom O’Connor.  Tom is a nationally known consultant, speaker and writer in the area of computerized litigation support systems.  A frequent lecturer on the subject of legal technology, Tom has been on the faculty of numerous national CLE providers and has taught college level courses on legal technology.  Tom's involvement with large cases led him to become familiar with dozens of various software applications for litigation support and he has both designed databases and trained legal staffs in their use on many of the cases mentioned above. This work has involved both public and private law firms of all sizes across the nation.  Tom is the Director of the Gulf Coast Legal Technology Center in New Orleans.

What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?

I think that there is still a lack of general baseline understanding of, not just eDiscovery principles, but technology principles.  Attorneys have been coming to LegalTech for over 30 years and have seen people like Michael Arkfeld, Browning Marean and folks like Neil Aresty, who got me started in the business.  The nouns have changed, from DOS to Windows, from paper to images, and now its eDiscovery.  The attorneys just haven’t been paying attention.  Bottom line is: for years and years, they didn’t care about technology.  They didn’t learn it in law school because a) they had no inclination to learn technology and b) they didn’t have any real ability to learn it, myself included.  With the exception of a few people like Craig Ball and George Socha, who are versed in the technical side of things – the average attorney is not versed at all.  So, the technology side of the litigation world consisted of the lit support people, the senior paralegals, the support staff and the IT people (to the minimal extent they assisted in litigation).  That all changed when the Federal Civil Rules changed, and it became a requirement.

So, if I pick up a piece of paper here and ten years ago used this as an exhibit, would the judge say “Hey, counsel, that’s quite a printout you have there, is that a Sans Serif font?  Is that 14 point or 15 point?  Did you print this on an IBM 3436?”  Of course not.  The judge would authenticate it and admit it – or not – and there might be an argument.  Now, when we go to introduce evidence, there are all sorts of questions that are technical in nature – “Where did you get that PST file?  How did that email get generated?  Did you run HASH values on that?”, etc.  And, I’m not just making this up.  If you look at decisions by Judge Grimm or Facciola or Peck or Waxse, they’re asking these questions.  Attorneys, of course, have been caught like the “deer in the headlights” in response to those questions and now they’re trying to pick up that knowledge.  If there’s one real trend I’m seeing this year, it’s that attorneys are finally taking technology seriously and trying to play catch up with their staff on understanding what all of this stuff is about.  Judges are irritated about it.  We have had major sanctions because of it.  And, if they had been paying attention for the last ten years, we wouldn’t be in the mess that we are now.

Of course, some people disagree and think that the sheer volume of data that we have is contributing to that and folks like Ralph Losey, who I respect, think we should tweak the rules to change what’s relevant.  It shouldn’t be anything that reasonably could lead to something of value in the case, we should “ratchet it down” so that the volume is reduced.  My feeling on that is that we’ve got the technology tools to reduce the volume – if they’re used properly.  The tools are better now than they were three years ago, but we had the tools to do that for awhile.  There’s no reason for these whole scale “data dumps” that we see, and I forget if it was either Judge Grimm or Facciola who had a case where in his opinion he said “we’ve got to stop with these boilerplate requests for discovery and responses for requests for discovery and make them specific”.

So, that’s the trend I see, that lawyers are finally trying to take some time to try to get up to speed – whining and screaming pitifully all the way about how it’s not fair, and the sanctions are too high and there’s too much data.  Get a life, get a grip.  Use the tools that are out there that have been given to you for years.  So, if I sound cynical, it’s because I am.

Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?

{Interviewed on the final afternoon of LTNY}  Well, as always, a good show.  This year, I think it was a great show, which is actually a bit of a surprise to me.  I was worried, not that it would go down from last year, but that we had maybe flattened out because of the economy (and the weather).  But, the turnout was great, the exhibit halls were great, a lot of good information.  I think we’re seeing a couple of trends from vendors in general, especially in the eDiscovery space.  We’re seeing vendors trying to consolidate.  I think attorneys who work in this space are concerned with moving large amounts of data from one stage of the EDRM model to another.  That’s problematic, because of the time and energy involved, the possible hazards involved and even authentication issues involved.  So, the response to that is that some vendors attempt to do “end-to-end” or at least do three out of the six stages and reduce the movement or partner with each other with open APIs and transparent calls, so that process is easier.

At the same time, we’re seeing the process faster and more efficient with increased speed times for ingestion and processing, which is great.  Maybe a bigger trend and one that will play out as the year goes along is a change in the pricing model, clearly getting away from per GB pricing to some other alternative such as, maybe, per case or per matter.  Because of the huge amount of data we have do so.  But also, we’re leaving out an area that Craig Ball addressed last year with his EDna challenge – what about the low end of the spectrum?  This is great if you’re Pillsbury or DLA Piper or Fulbright & Jaworski – they can afford Clearwell or Catalyst or Relativity and can afford to call in KPMG or Deloitte.  But, what about the smaller cases?  They can benefit from technology as well.  Craig addressed it with his EDna challenge for the $1,000 case and asked people to respond within those parameters.  Browning Marean and I were asking “what about the $500,000 case?”  Not that there’s anything bad about low end technology, you can use Adobe and S1 and some simple databases to do a great job.  But, what about in the middle, where I still can’t afford to buy Relativity and I still can’t afford to process with Clearwell?  What am I going to use?  And, that’s where I think new pricing and some of the new products will address that.  I’ve seen some hot new products, especially cloud based products, for small firms.  That’s a big change for this year’s show, which, since it’s in New York, has been geared to big firms and big cases.

What are you working on that you’d like our readers to know about?

I think the things that excite me the most that are going on this year are the educational efforts I’m involved in.  They include Ralph Losey’s online educational series through his blog, eDiscovery Team and Craig Ball through the eDiscovery Training Academy at Georgetown Law School in June.  Both are very exciting.

And, my organization, the Gulf Coast Legal Technology Center continues to do a lot of CLE and pro-bono activities for the Mississippi and Louisiana bar, which are still primarily small firms.  We also continue to assist Gulf Coast firms with technology needs as they continue to rebuild their legal technology infrastructure after Katrina.

Thanks, Tom, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Managing an eDiscovery Contract Review Team: Keep the Staff Motivated
 

In the last blog post, we talked about steps you can take to ensure high-quality, consistent work from a contract review staff.  There is one more, very important thing you should do:  keep the staff motivated.  There is no question that a motivated, content staff will produce better work than a staff that is indifferent.  Here are a few things you can do:

  • Give them the big picture:  Let the review staff know how their work fits into the overall litigation process, how their work product will be used, and how important their contribution is to the case.
  • Keep them up-to-date on the status of the case:  Let them know what’s going on.  Tell them when case milestones have been met, when initial production deadlines have been met, and what the attorneys are doing.  
  • Have senior attorneys give them some attention:  Ask senior attorneys on the case to stop by periodically and speak to the group.  This, more than anything, will reinforce how important their work is to the case.
  • Give frequent feedback to each member of the team:  Each supervisor should be responsible for giving regular feedback to members of the team.  This should be a daily task, done with team members on a rotating basis.  Every team member – even those doing excellent work – should get one-on-one time with the supervisor. 
  • Make sure the work environment is comfortable and pleasant:  Things like good lighting, comfortable chairs, good ventilation and a comfortable temperature can have a huge effect on both morale and productivity.

What do you do to keep a contract review staff motivated?  Do you have suggestions you can share with us?  Please share any comments you have and let us know if you’d like to know more about an eDiscovery topic.