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Electronic Discovery

Pizza Hut Pie Tops – The Internet of Things Keeps Getting Stranger: eDiscovery Trends

Editor’s Note: Jim Gill’s writing about eDiscovery and Data Management has been twice recognized with JD Supra Reader’s Choice Awards and he holds an MFA in Creative Writing from Southern Illinois University, Carbondale.  Before working in eDiscovery, Jim taught college writing at a number of institutions and his creative work has been published in numerous national literary journals, as well as being nominated for a Pushcart Prize.

Jim’s post below highlights the proliferation of “internet of things” (IoT) devices in our world (with a unique example) and how that can impact eDiscovery activities.  Great timing, as I will be talking about collecting data from IoT devices at the University of Florida E-Discovery Conference, which will be held a week from today – Thursday, March 29.  As always, the conference will be conducted in Gainesville, FL on the University of Florida Levin College of Law campus (as well as being livestreamed), with CLE-accredited sessions all day from 8am to 5:30pm ET.  I (Doug) am on a panel discussion at 9am ET in a session titled Getting Critical Information From The Tough Locations – Cloud, IOT, Social Media, And Smartphones! with Craig Ball, Kelly Twigger, with Judge Amanda Arnold Sansone.  Click here to register for the conference – it’s only $199 for the entire day in person and only $99 for livestream attendance.  Don’t miss it!

A couple of weeks ago, Pizza Hut announced the release of a pair of sneakers dubbed Pie Tops II – yes, real wearable shoes – which will link with your phone via Bluetooth to connect with the Pizza Hut app, allowing you to order a pizza with the single push of a button on the shoe’s tongue. An additional feature connects with TV receivers like Xfinity, Spectrum, and DirecTV, pausing whatever you’re watching when the pizza arrives at the door.

Yes, this is obviously a marketing gimmick, though it could be yet another sign we’re on the fast track to the world portrayed in the film Idiocracy. But when I saw this, I immediately imagined the possible eDiscovery implications. The IoT has continues to play more of a role in the law, particularly in criminal cases, such as the one where a man in Connecticut was arrested for the murder of his wife because of evidence attained from her Fitbit (covered by the eDiscovery Daily blog here). Now more than ever, criminal and civil courts are dealing with digital evidence that not so long ago didn’t even exist.

Many people in eDiscovery still think of ESI as email or documents. And for the most part, they’re right. But anyone working in the legal tech / data management industries should know by now that what isn’t a concern today, will be in a short matter of time. For individuals, short-sightedness regarding technology may not pose a huge concern on a day-to-day basis. For most of us, the biggest data risk we face is dropping our phones in the toilet. But for corporations, government entities, and other large organizations, getting caught off guard when it comes to the ability to preserve and collect data could bring significant costs, both financial and legal.

This is a where a robust information governance program can protect you from potential snags down the road. Not every new technology will apply to your organization but knowing what your current data landscape looks like gives you a head start on being prepared should something new arise. Housecleaning is also an important part of this process. Once you have a handle on everything, you can begin making decisions on what needs to be kept and what can be defensibly deleted. With data storage becoming more readily available, along with in-place preservation platforms, it’s very easy to keep everything and worry about it later. But more data is coming down the pipe in droves, and sooner or later it’s going to get unwieldy.

It’s also important to think about policies and contingencies regarding new technologies as they come into your organization. More and more people are using their own devices, particularly on the mobile front, which means a huge number of applications are creating ESI related to professional activity. If you don’t have a plan in place for dealing with these as far as preservation and collection, things could get stressful in a hurry should litigation arise. The flipside of that scenario is that too strict a lockdown on the types of devices and platforms that can be used could cut into productivity and dampen creativity.

The main thing to focus on is open and forward-thinking communication should happen continually between all stakeholders: legal, IT, business units, and 3rd party vendors. This way, if something unexpected does come up, everyone is on board and knows how to handle it.

It’s pretty unlikely that data from the Pie Tops II will come into play in your next big case (though I can imagine a modern-day Perry Mason-type drama where someone’s alibi hinges on the time and place they ordered a pizza from their shoes). But, their very existence should get you thinking about the data types that your organization is using, or may soon start using, and their role in litigation.

So, what do you think?  Have you seen a rise in new data affecting your organization?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Pizza Hut, LLC

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Brett Burney of Burney Consultants LLC: eDiscovery Trends 2018

This is the third of the 2018 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year (and some afterward) to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Brett Burney.  Brett is Principal of Burney Consultants LLC, and focuses the bulk of his time on bridging the chasm between the legal and technology frontiers of electronic discovery. Brett is also very active in the Mac-using lawyer community, working with lawyers who want to integrate Macs, iPhones & iPads into their practice.  Prior to establishing Burney Consultants LLC, Brett spent over 5 years at the law firm of Thompson Hine LLP where he worked with litigation teams in building document databases, counseling on electronic discovery issues, and supporting their technology at trial & hearings.  Brett graduated from the University of Dayton School of Law in 2000 and quickly became active in the world of legal technology. Brett speaks around the country on litigation support, eDiscovery, Mac, and iOS-related topics and today authors a variety of blogs and online courses for legal professionals.  Brett also served as the Chair of the ABA TECHSHOW 2015 Conference Planning Board and recently published the book “Macs in Law” for the American Bar Association. Brett is also the co-author the 2018 eDiscovery Buyers Guide.

What were your general observations about LTNY this year?

It seemed that the 2018 Legaltech/Legalweek Conference had a distinct flavor of maturity this year. The Exhibit Hall was a bit thinner and less wacky than previous years, and the pulse was more focused and business-like.

On the “future is coming soon so you better be ready” side, there were multiple warnings about GDPR and AI, with some Blockchain sprinkled throughout.  On the more practical side were continuing discussions on how to collect and monitor social media and IoT sources.

Overall, this year’s conference appeared to deliver what attendees were seeking in education and information.

If you were “king of LTNY” for a year, what kind of changes would you make?

While I fully understand the push last year to make this a “Legalweek” instead of just “Legaltech,” it’s still very confusing with all kinds of sessions and mini-shows happening at the same time. So I would simplify things as much as possible.

Second, I would try to reach out to small and mid-size firms outside of the New York area.

You and Chelsey with Lex Tech Review recently published a buyer’s guide to eDiscovery solutions. Why did you decide to publish the guide, who do you anticipate using the guide and how do you anticipate them using it?

That’s easy! We simply had a passion to provide a comprehensive set of eDiscovery resources for a section of the market that is routinely overlooked – small and mid-size law firms.

For some reason, most lawyers think that “eDiscovery” is only something that huge law firms have to deal with, and that if you’re a small firm you don’t have to worry about it … so they don’t. But just because you’re in a small firm, doesn’t mean you don’t handle large, important litigation matters. And if you’re involved in litigation today, then you are absolutely involved in eDiscovery.

We have two goals for the eDiscovery Buyers Guide: First to serve as a literal buyers guide to help practitioners find the products they need to use, and second to serve as a resource to help lawyers be more competent about products available for their clients and to understand the products being used by opposing parties.

As an eDiscovery consultant, you work with a lot of clients.  What are the “hot” topics and issues that you find your clients are most consistently encountering?

Honestly, while I love talking out AI and predictive coding and statistical algorithms as much as next eDiscovery tech nerd, the vast majority of my clients are just trying to get their heads wrapped around the day-to-day practical aspects of eDiscovery.  The “hottest” topic I get asked about today is how to confidently and defensibly collect social media content from Facebook, LinkedIn, Twitter, etc. Email is still the primary source of potentially relevant electronic evidence today, but it’s unbelievable what folks will post in social media.

In a similar vein, not a week goes by that I don’t have a client asking how they can collect text messages from phones and mobile devices.  Beyond that, many of my clients are just seeking to learn about the best tools and products that they can use to get through an overwhelming number of emails, documents, and electronic files … which is one of the reasons we developed the eDiscovery Buyers Guide.

If you could provide legal practitioners out there with one or two key pieces of advice about better eDiscovery practices, what would you tell them?

Keep it simple and practical, but that doesn’t mean you can be ignorant about the tools you need to use as a litigator in today’s world. For example, I still find so many lawyers using their own Microsoft Outlook to review email collected from a client. And that just completely baffles me that they are co-mingling live electronic evidence with their own work product in the same software! That’s negligent and ripe with risk. If you’re a litigator today, you need to use legitimate document review tools that preserve the evidence, allow you to code, tag, & redact documents, and then produce them in the form or forms in which the opposing party requests.

Second I continue to encourage practitioners to just talk with the other side about eDiscovery processes and procedures. Sure I understand the “strategy” behind the reasoning to keep the opposing party in the dark for as long as possible, but this legacy approach to discovery doesn’t help you or your client when it involves electronic evidence. Cooperation is a dirty word for most lawyers, but it’s absolutely critical for swift and successful eDiscovery resolutions.

What would you like our readers to know about things you’re working on?

Thanks for asking! On the non-e-Discovery side, I offer a fantastic online course for lawyers that want to incorporate iPads into their practice at www.ipracticeonanipad.com. I also host a blog reviewing apps at www.appsinlaw.com.

My latest course is called TextExpander for Lawyers where you’ll learn about the most brilliant software utility that can type FOR you and save you time in your day.

Lastly, I encourage every reader to download the FREE eDiscovery Buyers Guide that features CloudNine amongst many other platforms and products. The website also has helpful blog posts and videos.

Thanks, Brett, for participating in the interview!

Also, we’re getting ever closer to the University of Florida E-Discovery Conference, which will be held on Thursday, March 29.  As always, the conference will be conducted in Gainesville, FL on the University of Florida Levin College of Law campus (as well as being livestreamed), with CLE-accredited sessions all day from 8am to 5:30pm ET.  I (Doug) am on a panel discussion at 9am ET in a session titled Getting Critical Information From The Tough Locations – Cloud, IOT, Social Media, And Smartphones! with Craig Ball, Kelly Twigger, with Judge Amanda Arnold Sansone.  Click here to register for the conference – it’s only $199 for the entire day in person and only $99 for livestream attendance.  Don’t miss it!

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

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

ALSP – Not Just Your Daddy’s LPO, Part Four: eDiscovery Trends

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom also wrote a terrific four part informational overview on Europe’s General Data Protection Regulation (GDPR) titled eDiscovery and the GDPR: Ready or Not, Here it Comes (and participated with me on a webcast on the same topic) and wrote another terrific five part informational overview on Understanding eDiscovery in Criminal Cases.  Now, Tom has written another terrific overview regarding Alternative Legal Service Providers titled ALSP – Not Just Your Daddy’s LPO that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  We covered part one on March 8 and parts two and three last Monday and Thursday.  Here’s the final part, part four.

What does this mean for the future of ALSPs?

According to the Thomson Reuters report, ALSPs are likely to continue to expand as the complexity and specialization of legal services grows. Additionally, we can expect that even more areas of ALSP specialization will develop. Some of the AM Law 50 and Fortune 50 may still choose to keep their work in-house due to their high level of internal resource or pains endured in the past with ALSPs, but the overall market for ALSP services in the rest of the legal profession should continue to expand.

Specifically, the report showed that while only 38 percent of law firms use a litigation support ALSP now, another 15 percent said they would be likely to use them in the next year. And among regulatory risk and compliance services for corporations, the number of users increases 13 percent for new users within the next year.

The biggest driver? Technology. Firms and companies interviewed for the report identified a number of different technologies they hoped ALSPs would use in the near future, including:

  • artificial intelligence,
  • contract management,
  • process mapping, and
  • workflow technology.

Eric Laughlin, Managing Director of Legal Services at Thomson Reuters, noted that in many cases, these are technologies that are still in the nascent stages in firms or legal departments, saying:

“I think it shows that while legal departments and law firms either haven’t been able to adopt yet because of budget, or perhaps because of the scale, they have high expectations that ALSPs will use technology to their advantage.”

Will there be growth pains? Undoubtedly.  The Thomson Reuters report mentions several areas that law firms and corporations would like clarified before adopting ALSPs, including:

  • 59 percent of law firms that do not use ALSPs cited data security as the main reason,
  • 54 percent of law firms cited quality of service as an inhibitor,
  • 43 percent of corporate users also cited quality of service as a negative, and
  • 43 percent of corporate users cited failure to actually reduce costs as the most negative factor.

The Legaltech New York panel mentioned earlier highlighted these factors, with security getting the most attention. However, the panel suggested these issues may revolve mainly around market education and getting potential customers more familiar with and gaining experience using ALSPs, rather than being insurmountable barriers to continued growth.

The panel also discussed the potential growth in the ALSP market and opined that ALSPs may be viewed as complementary, rather than competitive to firms, helping firms be more efficient and competitive. Since an ALSP is not a law firm, it can often provide one or more services that law firms might offer, but at a lower cost with increased expertise, flexibility, and speed.

Also, because they do not have to adhere to the structure and hierarchy of a law firm, an ALSP can more quickly change business practices to increase efficiency using technology or other innovative practices. Since clients have traditionally preferred having a single point of contact for all their legal business, this would seem to open the door to the opportunity for the law firm or GC to partner with ALSPs to offer cost-effective models for their clients.

What will that future ALSP included hierarchy look like?  First and foremost, it will require good project management skills. Well known legal consultant Casey Flaherty, Principal of the legal operations consulting company Procertas, was recently quoted as saying:

“Most successful users of ALSPs will tell you that… once they took time to train the provider and work to establish a common understanding for the product, the returns on the investment were spectacular.”

So more and more, ALSPs will become partners in legal work more than merely hired vendors. And like all partners in the legal process, the relationship will be ongoing and not simply oriented around one deliverable task.

“The future is now,” Fenwick & West LLP’s Robert Brownstone, who led the Legaltech panel on ALSPs, tells any and everyone who will listen. Brownstone often points out that “it is the rare law firm or legal department that can adequately ramp up – and keep up – on technology, project management and innovation. By planting their flag, ALSPs have provided legal departments not only with a wider array of choices but also a lever to pressure law firms to adjust to the new normal.”

So, while the future appears to be bright for ALSPs, the future also appears to be now.

So, what do you think?  Have you used an ALSP before?  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Also, it’s notable that Tom’s post is today because I (Doug) want to thank JD Supra and its readership for CloudNine being named the Readers’ Choice Top Firm in eDiscovery for the second straight year!  And, Tom and I were named two of the top four authors in the Readers’ Choice awards for eDiscovery!  I’m honored to be named for the second year in a row!  Distribution of our posts via JD Supra has continued to grow our readership greatly and I really appreciate our partnership with JD Supra and thank all of you for reading our blog, whether it’s via JD Supra or the “old fashioned way” via our site!  Thank you so much!

And, today our blog has been around for 7 1/2 years!  And, we are up to 1,942 lifetime posts!  Thanks to all of you of support and readership of the blog and making it all possible.  We wouldn’t write it if y’all didn’t read it!  :o)

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Grants Key Parts of Motion to Compel Against Safeway: eDiscovery Case Law

In U.S. ex rel. Proctor v. Safeway, Inc., No. 11-cv-3406 (C.D. Ill. Mar. 08, 2018), Illinois Magistrate Judge Tom Schanzle-Haskins allowed the Relator’s motion to compel in part, ordering the defendant to conduct and complete a TAR process on 575,000 issue files previously produced based on key number search alone and also ordering the defendant to produce PDX pharmacy transaction data (PDX Data) – all by March 16.  However, Judge Schanzle-Haskins declined to order the defendant to produce the issue files as Image Files since it had previously produced them in native form and instructions only directed the defendant to produce image files if it created a litigation database.

Case Background

In this case regarding alleged overcharging for pharmaceuticals by the defendant Safeway to federal and state government programs, the relator served his First Set of Requests for Production of Documents to the defendant in February 2017, which requested the documents to be produced, as follows: “Unless otherwise agreed to by counsel, electronically stored information (“ESI”) shall be produced in its unaltered native form and as it is maintained in the ordinary course of business. If, however, you have created a litigation database to facilitate the production of documents, the ESI shall be produced in multi-page TIFF format (minimum 300 dpi resolution) with searchable text files and native files using ‘(beginning Bates number).(extension)’ for each document as the filename.”

The parties negotiated over the production of the requested materials and the defendant produced 260,640 Bates numbered documents and an additional 575,000 Issue Files in native format.  The defendant used a key word search to collect Issue Files, but did not otherwise review the Issue Files to determine the documents produced by the key word search were responsive to the relator’s request and some of the files produced were a mass of incomprehensible special characters and other symbols.  The defendant also had not produced PDX Data that had been requested.  As a result, the relator filed a motion to compel the defendant to review the Issue Files to identify non-privileged responsive documents and produce those files in Bates numbered TIFF or PDF format and to produce the PDX data immediately.  The defendant responded that “Proctor’s request is overly burdensome, cost prohibitive, and cannot be accomplished within the timeframe of the discovery schedule”.

Judge’s Ruling

Noting that “[t]he Request ESI Instructions directed Safeway to produce Image Files if it created a litigation database”, but that “Safeway…was not required to produce documents in more than one form”, Judge Schanzle-Haskins stated he “will not order Safeway to produce the Issue Files as Image Files.”

However, Judge Schanzle-Haskins also ruled that “Safeway must also place a unique Bates number on each Issue File produced”, noting that “Safeway stated during the parties’ negotiations that it would number Native Files with a Bates number.”  He also ruled that “Safeway must review the Issue Files to identify the responsive documents. A party must make reasonable inquiry and certify that discovery is complete and responsive. Fed. R. Civ. P. 26(g)(1). Under the facts of this case, Safeway’s key number search alone was not a reasonable inquiry under Rule 26(g).”

Also noting that “Safeway has had more than a year to respond to this request”, Judge Schanzle-Haskins ordered the defendant to produce the PDX data.  The defendant was ordered to produce that data and also identify the responsive Issue Files with Bates numbers by March 16.

So, what do you think?  Was the ruling correct or were the relator’s requests “overly burdensome”?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Mary Mack of ACEDS: eDiscovery Trends 2018

This is the second of the 2018 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year (and some afterward) to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Mary Mack of ACEDS.  Mary is the Executive Director of the Association of Certified eDiscovery Specialists (ACEDS).  E-discovery luminary and recipient of the Masters Conference Educator of the Year 2016, Mary provides ACEDS and its membership more than a decade of strong credibility and sound leadership within the e-discovery community. Mary is the author of A Process of Illumination: The Practical Guide to Electronic Discovery, considered by many to be the first popular book on e-discovery. She is the co-editor of the Thomson Reuters West treatise, eDiscovery for Corporate Counsel.

What have your impressions of LTNY been this year?

{Interviewed Mary the last morning of the conference}

We’re on the downhill slide today and I’m so happy – these shows are a lot of fun, but a lot of work too. A highlight for me was the gathering of our NYC chapter attendees followed by our annual #DrinksWithDougAndMary community happy hour at Ruth’s Chris, sponsored by our fantastic affiliates CloudNine and Compliance Discovery Solutions. Thank you so much for that!  It was packed from 4pm on with everyone representing from the Hon. Judge Peck to our newest CEDS certified person. The other thing that was fun was that our other chapter leadership was in attendance and our chapters look forward to this event every year.

Another highlight for me was the number of great people taking #eDiscoveryRockstar selfies at our booth behind our big backdrop!

I was on a session yesterday with David Horrigan, Bill Hamilton, Dan Katz, Laura Norris and Judge Rodriguez, which was fabulous. I thought it was well attended and the audience was a very mixed group. At the end, the panel asked for predictions and then we had buzzers where we could agree with the predictions, so it was like a round robin prediction. My prediction was The Rise of the Legal Engineer, which (I think) got three “yes” votes and one “no” vote from the other panelists.  Then, after the session was over, one of the attendees came up to me from Airbus with his name tag which indicated that he is a legal engineer.  I decided he had come from the future and they had figured that all out already!

That was a nice session and I’m glad I got to participate in it.  Other than that, this is (unfortunately for me) a business conference, so I’m not able to see as much content as I’d like to, session wise. I’m going to have to depend on the recorded versions.  There were some very nice keynotes, I heard, so I look forward to checking those out particularly.

ACEDS had a great reception Tuesday night at the offices of Thomson Reuters, who is one of our partners.  They very graciously put a reception in their Customer Experience Center, with a view of Times Square right where the New Year’s Eve ball drops down. We had three judges for the content part (Honorable Judges James C. Francis IV, David Waxse and Xavier Rodriguez), but we also had a meet-and-greet with the press, with video of the authors that have been so graciously contributing to get some visibility for the work that they’ve been doing.  Discovery counsel like Nick Ackerman from Dorsey and David Keyko from Pillsbury and Hampton Coley of Canon, former Cravath and Debbie Reynolds from Eimer Stahl.  As for the judges who participated, we had a lovely discussion with Judge Waxse who’s fully retired now and still bringing it down to a level that everybody can understand with storytelling and things of that nature.  And, we had Judge Francis who’s got his Microsoft Ireland case going up to the Supreme Court and he was handicapping how that ruling might go.   We also had comments from Judge Rodriguez, of course, who is so forward-thinking on access to justice and how we’re going to better do that and some of the other aspects of our practice.

Speaking of the Microsoft Ireland case, what are your thoughts about that case? Do you have any expectations or predictions as how it’s going to go?

It’s interesting because I think maybe last month I would have said that the Supreme Court would have said yes, you can get the data. And now, maybe this week I’m thinking with all the data privacy stuff that’s going on in the news that they might say no. That maybe they’ll take a look at it but it might really drastically hurt our commercial technical business, from a US perspective, unless we do something rational around it for privacy purposes.

You have the Microsoft case and then also you have GDPR looming. This year seems to be a particular focus on data privacy, more so than it seems in previous years. What are your thoughts about that, where do you think organizations stand in getting ready for GDPR?

I don’t think organizations are anywhere near ready. I think they’ll be still trying to get ready when the first fines come down. My sense is that there will be fines levied that are rather large and, to me, the climate feels like someone’s going to get a fine pretty early.  Though I may be way wrong on that, I thought maybe UK bribery would be big and it wasn’t. It turned out to be a non-issue, really.

Were there any other topics that stood out for you in this year’s session, that you think are the key topics that people are talking about here at the conference?

Business-wise, I think the most talked about topic is consolidation, and that the downstream effects of that are people’s employment and business aspects. I think that that’s palpable here.  It’s going to be really interesting to see the next quarterly business confidence survey that Rob Robinson does. It’ll be interesting to see if there’s a drop in confidence if the people who get consolidated out fill out a survey.  Who knows?  To date, it’s been pretty sunny, I think.  This conference certainly reflects the consolidation.  Certainly the number of people who are buying booths is lower.  Although, it’d be interesting to get the statistics for the satellite suites that aren’t here because that is still going on. For me, it feels less attended than last year — both from the exhibitors as well as attendees.

If you were queen of LTNY for a year, what changes would you make?

If it’s in January, I’d hold it in Florida. {laughs}  Seriously, though, I know that’s not possible. I do think it was a mistake to ‘X’ out the consultants and the partners – I feel that $2,500 entrance fee to the exhibit hall was punitive and many people didn’t come. I think one of the things I’ve always loved about Legaltech New York is that you could see everybody, in the course of three days. Now I’m not seeing that. People that have come for 15 years are saying they can’t do it now. I think that’s a shame.  I do appreciate that the “looky loos” that come with their little bags and just grab up all the swag, are not there. I do appreciate that, but I think we’re missing part of our population that contributes a great deal.

What else would I do?  I think I would look at how they’re sourcing speakers to make sure it’s more reflective of our community.

What would you like to tell our readers about what ACEDS is doing?

ACEDS is going to take a nap. {laughs}  Seriously, though, we are having all sorts of organic chapter growth all over the world. Last year our UK chapter made us global. This year, Benelux (Belgium, the Netherlands and Luxembourg) is up already. Toronto is coming soon and also Australia.  Then, perhaps Japan, perhaps Abu Dhabi and then around the country in places like Houston, where your CEO Brad Jenkins is the chapter president.  We’re also setting up in Dallas and San Francisco and getting inquiries from LA and Atlanta.  We’re getting an explosion in chapter demand. We’re doing all of that and we have some other things in the works I think that’ll be pretty exciting, especially for our partners, around combining technical certification with our more functional certification.

We’re also doing a ton of webinars.  It seems like we have at least one every week.  Sometimes, we have three.  We found that separating the pure education from the service product showcases where partners can brag on themselves and focus on their selling proposition works well.  As long as people know you’re doing a demo and that’s what you’re going to do and that’s what they come for, there’s no illusion.  I feel the program helps with the technical competence and the risks and benefits of technology.

And, we’re seeing more attorneys come to the webinars.  We started that last year as an experiment. We thought we’d get 13 people; instead, we’re getting 130 people and that’s for an intro demo. Then, for service providers, it’s people who’ve already self-selected you for a deeper conversation, like the people that are trying to do RFPs and things like that.  They get to do bit of research without necessarily engaging hot and heavy.  And, it’s good for the partners too, who can point people to those webinars to get started learning about them right away.

Last year, we also did the “Ask the Experts” series, which was really fun.  We did that with Jared Coseglia over at TRU Staffing and we’re going to expand that series. Jared is our anchor and he’s got a quarterly report and we will be bringing in some other experts on other areas of career development and technical development topics as well. The format is different: We conduct some poll questions and then the answers of the poll helps shape the conversation. It’s an unscripted, unplugged type of format and it’s highly interactive.  And, we’ve changed what we’re offering, how we offer it, how we talk about it, based on the feedback we’ve gotten from some of those subjects.  Even though you’re not in the same room, it’s about as close as you can get to that during the hour discussion.

Thanks, Mary, for participating in the interview!

Also, we’re getting ever closer to the University of Florida E-Discovery Conference, which will be held on Thursday, March 29.  As always, the conference will be conducted in Gainesville, FL on the University of Florida Levin College of Law campus (as well as being livestreamed), with CLE-accredited sessions all day from 8am to 5:30pm ET.  I (Doug) am on a panel discussion at 9am ET in a session titled Getting Critical Information From The Tough Locations – Cloud, IOT, Social Media, And Smartphones! with Craig Ball, Kelly Twigger, with Judge Amanda Arnold Sansone.  Click here to register for the conference – it’s only $199 for the entire day in person and only $99 for livestream attendance.  Don’t miss it!

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

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

ALSP – Not Just Your Daddy’s LPO, Part Three: eDiscovery Trends

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom also wrote a terrific four part informational overview on Europe’s General Data Protection Regulation (GDPR) titled eDiscovery and the GDPR: Ready or Not, Here it Comes (and participated with me on a webcast on the same topic) and wrote another terrific five part informational overview on Understanding eDiscovery in Criminal Cases.  Now, Tom has written another terrific overview regarding Alternative Legal Service Providers titled ALSP – Not Just Your Daddy’s LPO that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  We covered part one last Thursday and part two on Monday.  Here’s part three.

Who is actually using an ALSP?  And, why are they using them?

Who is actually using an ALSP?  And what is the specific breakdown of these services? The Thomson Reuters Legal Executive Institute report shows that more than half of law firms and corporations are already using ALSPs with 51 percent of law firms and 60 percent of law departments already using ALSPs in at least one service category.

John Munro, Vice President of National Markets at Blackstone Discovery, was a panelist at a Legaltech New York session discussing the ALSP market. He noted that traditional document review work was once 75 percent of the LPO market but now may be no more than 30 percent of the ALSP market. More and more, ALSPs are playing a bigger role in providing legal services.

Law departments seem to be using ALSPs in specialized areas ranging from regulatory risk & compliance services to specialized legal advice for IP managers and legal researchers.

Law firms however are most likely to use ALSPs for litigation support, especially eDiscovery, document review and pre-litigation investigation.

In a January press release, report co-author Mari Sako, Professor of Management Studies at Saïd Business School shared that:

“ALSPs are not just about lower cost, but also about access to specialized expertise and alternative modes of delivery.”

But why?

ALSPs were originally seen as a good outsourcing choice simply because of affordability in handling tasks without billing out to an attorney. In 2005, it was purely about the cost savings and the labor arbitrage.  And according to the Thomson Reuters report that still seems to be the case when it comes to tasks such as document review. 85 percent of law firms who use ALSPs said they do so in document review for cost savings and 52 percent said they use them to meet peak document review demand without increasing headcount.

While cost savings still remains a driver, the report confirms how ALSPs today are disaggregating legal processes, that is to say they are providing legal expertise not always available in-house and helping enable greater use of current technology.

Outside of document review though, the need for expertise is increasingly a key factor in selecting an ALSP.  About two-thirds of law firms reported using litigation and investigation support services ALSPs and said their primary reason was the need for access to specialized expertise not available in-house; only one-third cited cost savings as a main factor. A good example of this expertise is Attorney Kelly Twigger and her company, ESI Attorneys. She routinely engages as the eDiscovery expert for law firms and corporate clients because she can provide a depth of ESI experience which they simply cannot bring to the table.

In selecting a non-legal task ALSPs, the percentages were close to the same: 63 percent (expertise driven) and 38 percent (cost-driven), respectively.

For in-house counsel, the four most often selected types of ALSP services beyond eDiscovery and document review were regulatory risk and compliance services, specialized legal services, intellectual property management, and legal research services. The primary reason for selection of these services was access to specialized expertise not available in-house and the difference between this reason and cost was even more pronounced then with private firms, at 77 percent for expertise while only 27 percent for cost savings.

In a statement to Legaltech News during the Legaltech conference in New York earlier this year, Eric Laughlin, Managing Director of Legal Services at Thomson Reuters, noted that

“Having matured in their offerings a little bit, these alternative legal service providers are differentiating based on expertise. And that makes corporations more and more comfortable to reach out to them and use them.”

In addition to expertise, an ALSP can do a much higher volume of work than can the average law firm or legal department. For example, an ALSP specializing in eDiscovery may simply have many more tools and much more robust workflow processes for extracting electronic evidence from terabytes of ESI than any firm or GC office.

This higher volume capability allows their expertise to be applied in a manner that is not only faster but less costly.  The result is that law firms now see that subcontracting services to an ALSP can allow them to focus more on their own core competencies. And corporations which have become more focused on reducing outside legal spend see that using a specialized ALSP rather than a law firm may better serve that purpose.

We’ll publish the final part, Part Four – What does this mean for the future of ALSPs? – next Tuesday.

So, what do you think?  Have you used an ALSP before?  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Understanding eDiscovery in Criminal Cases: eDiscovery Trends

Criminal cases have long been thought of as an arena devoid of electronic discovery issues. But attorneys who regularly handle criminal cases know that’s not the case. So, are there any guidelines and best practices for handling eDiscovery in criminal cases?  There are, and we’re going to discuss them in a webcast next week.

But first, this week’s eDiscovery Tech Tip of the Week (which I forgot to post last Friday, oops!) is about Stemming and Synonym Searching.  When performing keyword searching, it may be difficult to think of every variation of a word to search for or other words that have the same meaning that may also be relevant.  Stemming searching is a way to catch those variations of terms and Synonym searching is a way to catch other terms that mean essentially the same thing as the desired term.  Both mechanisms help expand the potential recall of your search and enable you to locate additional important ESI to your case that might otherwise be missed, simply because those additional relevant terms weren’t identified.  You don’t want to miss an important document just because you didn’t think to search for a variation of the word, do you?  Didn’t think so… :o)

To see an example of how Stemming and Synonym Searching is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

Anyway, on Wednesday, March 21 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Understanding eDiscovery in Criminal Cases In this one-hour webcast that’s CLE-approved in selected states, we will take a look at the history of the development of standards and highlight specific issues of importance regarding eDiscovery in criminal matters. Topics include:

  • Overview of Rules for Criminal Matters
  • How Data is Acquired in Criminal Matters
  • Common Data Types and Examples of Cases
  • Data Exchange Formats and Protocols
  • Time Issues Specific to Criminal ESI
  • Working with Social Media as Evidence
  • Border Entry Considerations and Examples
  • Resources for More Information

Once again, I’ll be presenting the webcast, along with Tom O’Connor, who recently wrote an article about eDiscovery in criminal cases that we covered as a terrific five part informational overview.  I love it when Tom provides the topic and makes my life easier!  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you’re interested in eDiscovery for criminal law, this is the webcast for you!

{Side note: with two posts this week from Tom on his ALSP series, his thought leader interview tomorrow and this post, it’s unofficially Tom O’Connor week on the blog!}

Also, we’re getting ever closer to the University of Florida E-Discovery Conference, which will be held on Thursday, March 29.  As always, the conference will be conducted in Gainesville, FL on the University of Florida Levin College of Law campus (as well as being livestreamed), with CLE-accredited sessions all day from 8am to 5:30pm ET.  I’m on a panel discussion at 9am ET in a session titled Getting Critical Information From The Tough Locations – Cloud, IOT, Social Media, And Smartphones! with Craig Ball, Kelly Twigger, with Judge Amanda Arnold Sansone.  Click here to register for the conference – it’s only $199 for the entire day in person and only $99 for livestream attendance.  Don’t miss it!

So, what do you think?  Do you struggle with eDiscovery in criminal cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

ALSP – Not Just Your Daddy’s LPO, Part Two: eDiscovery Trends

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom also wrote a terrific four part informational overview on Europe’s General Data Protection Regulation (GDPR) titled eDiscovery and the GDPR: Ready or Not, Here it Comes (and participated with me on a webcast on the same topic) and wrote another terrific five part informational overview on Understanding eDiscovery in Criminal Cases.  Now, Tom has written another terrific overview regarding Alternative Legal Service Providers titled ALSP – Not Just Your Daddy’s LPO that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  We covered part one last Thursday.  Here’s part two.

What is an ALSP?

The first consideration in understanding new generation ALSPs is to understand how ALSP is defined. In general, ALSPs are niche companies that specialize in providing such high-demand legal services as:

  • Human Resources
  • IT Services
  • Document Review
  • Contract Management
  • Litigation Support
  • ECA
  • Analytics
  • Discovery and Electronic Discovery
  • Contract Lawyers and Staffing
  • Investigation Support and Legal Research
  • IP Management
  • Due Diligence

Industries such as banking started outsourcing IT services as a means to reduce costs almost 30 years ago. And now businesses and law firms are doing the same thing in the area of document services by turning to these new generation ALSP companies for even routine legal services that are too expensive and time-consuming to do in-house.

According to the Thompson-Reuters Legal Executive Institute report, there are five categories of ALSPs.

  • Accounting and Audit Firms that have a large amount of revenue in legal services. They tend to focus on high-volume, process-oriented work that’s complementary to accounting-audit work.
  • Captive LPOs that are wholly owned captive operations. Often located in lower-cost regions, they are focused on high-volume process work.
  • Independent LPOs, eDiscovery and Document Review Providers who perform outsourced legal work under the direction of corporate legal departments and law firms. They are typically engaged for matter- or project-based work often proactively managed and globally delivered. This category Includes eDiscovery services and document review providers.
  • Managed Legal Services Providers that contract for all or part of the function of an in-house legal team. They typically are engaged for ongoing work within scope and proactively managed.
  • Contract Lawyers, In-Sourcing, and Staffing Services who are providers of lawyers to companies on a temporary basis. Support can range from entry-level document review to highly skilled and experienced specialists.

So while the term ALSP is a reasonable capstone description for the multiple categories of ALSP specialization, it does appear that using only one term may, in some cases, be an over simplification of a complex grouping of services.

Another characteristic that defines an ALSP is the fact that it is not necessarily a law firm and does not engage in the practice of law nor does it necessarily have to be staffed by lawyers. Because of this characteristic, paralegals, legal assistants, and technical staff with the right type of legal expertise are in great demand at the new generation ALSP.  And more and more work is moving in their direction. According to an October 2013 article in ABA Journal, employment at traditional law firms peaked in 2004 and has declined moderately since then.  During the same time period, employment at ALSPs has doubled.

Although litigation and investigation support ALSPs are the third most-used category of ALSPs for law firms (behind eDiscovery and document review), the report found that they are used by just 28 percent of firms. Twenty-six percent of firms use ALSPs for non-legal factual research and 24 percent of firms use them for specialized legal services.

When breaking down the ALSP services used by corporations, there seems to be even more reluctance to adopt them. Regulatory risk and compliance services are the categories that see the most use proportionally, but even those ALSPs see adoption at only 29 percent. The only other category above 20 percent adoption in corporate legal departments is specialized legal services (21 percent).

Eric Laughlin is the general manager for Thomson Reuters Legal Managed Services. He expects continuing growth for ALSPs, saying this about the report:

“The data says that law firms are recognizing ALSPs for more expertise, so there’s a respect there for what ALSPs are doing. And then their experience in the market is that clients are pushing them more to disaggregate. They’re being asked to look at more models by their clients.”

The numbers in the report bear this out. But, as noted above, the uses go well beyond eDiscovery. ALSP services now extend to a wide variety of activities including not just LPO, managed services, HR, general accounting and so on. David Curle, Director of Strategic Competitive Intelligence for Thomson Reuters Legal, said in another panel at Legaltech that these non-traditional activities provide for roughly $8.4 billion in legal services each year.  While still a fraction of the $700 billion total global spend on legal services, it is an incredibly fast-growing segment of the market.

We’ll publish Part Three – Who is actually using an ALSP and why are they using them? – on Thursday.

So, what do you think?  Have you used an ALSP before?  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

ALSP – Not Just Your Daddy’s LPO: eDiscovery Trends

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom also wrote a terrific four part informational overview on Europe’s General Data Protection Regulation (GDPR) titled eDiscovery and the GDPR: Ready or Not, Here it Comes (and participated with me on a webcast on the same topic) and wrote another terrific five part informational overview on Understanding eDiscovery in Criminal Cases.  Now, Tom has written another terrific overview regarding Alternative Legal Service Providers titled ALSP – Not Just Your Daddy’s LPO that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

One of the biggest topics of discussion at the recent Legaltech® conference in New York was Alternative Legal Service Providers or ALSPs.  I was interested in the topic really because I was confused as to what the term ALSP meant. Like several other people I spoke with at the show, I originally considered an ALSP to be just a newer name that marketers had given to legal process outsourcing or LPO.

LPO was, of course, the exporting of legal services to low-wage markets either overseas (off-shore) or in the United States (on-shore). The LPO trend had been fueled by many factors, including:

  • Globalization
  • The rising cost of legal services
  • The growth of the Internet
  • Increased automation of legal processes
  • Developments in data security

In my experience, LPO offerings tended to be focused primarily on low cost document coding or data entry and were utilized primarily by law firms. But the recent rise of ALSP services, which have LPO characteristics, seems to be fueled by corporate law departments that are interested in partners providing software built specifically for their legal and compliance needs.

These growth factors for ALSPs are illustrated in a report from The Thomson Reuters Legal Executive Institute, in partnership with the Georgetown University Law Centre for the Study of the Legal Profession and the University of Oxford Saïd Business School titled The 2017 Alternative Legal Service Study – Understanding the Growth and Benefits of These New Legal Providers (you can download a copy here)  In this global report, more than 800 law firms and corporations were surveyed, and the results indicated that the growing use of a new generation of ALSPs is largely about expertise, not lower costs, as is often assumed.  Other factors in the growing use of ALSPs noted in the study included scalability, client demand for global solutions and greater access to technological innovations.

My focus for the following discussion will be a closer look at the new generation ALSP and the factors that define it.  We will take a look at what an ALSP is, who is actually using an ALSP, why they use them and how they will impact the provision of legal services in the future.

We’ll publish Part 2 – What is an ALSP? – next Monday.

So, what do you think?  Have you used an ALSP before?  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.