Outsourcing Archives

eDiscovery Case Law: Practicing Law and Discovery Services Companies Don’t Mix

February 2, 2012

At least, not in DC.

Vendors seeking to assist attorneys in offloading substantial portions of discovery-practice need to be careful not to cross the line into the unauthorized practice of law, according to a new ethics opinion by the District of Columbia Bar. On January 12, 2012, the District of Columbia Court of Appeals Committee on the Unauthorized Practice of Law released Opinion 21-12 regarding the “Applicability of Rule 49 to Discovery Services Companies.” This opinion provides guidelines for attorneys and discovery vendors regarding supervision of large-scale document reviews and vendors’ marketing practices, which are intended to prevent the unauthorized practice of law (UPL). Under these guidelines, the role of discovery-service providers in the e-discovery process must be limited to administrative, technical, and logistical tasks. This opinion and these guidelines additionally make clear that the onus of supervising a discovery project rests squarely on the shoulders of the D.C. Bar member who holds the attorney-client relationship with the client.

Rule 49 of the District of Columbia Court of Appeals provides:

No person shall engage in the practice of law in the District of Columbia or in any manner hold out as authorized or competent to practice law in the District of Columbia unless enrolled as an active member of the District of Columbia Bar, except as otherwise permitted by these Rules.

The ‘practice of law’ includes “[f]urnishing an attorney or attorneys, or other persons” to provide legal services. Rule 49(b)(2)(F).

Opinion 21-12 provides the following “principles” to provide guidance regarding “the permissible scope of services that may be performed [by document services companies]” without running afoul of the UPL rules. Opinion, at 7.

First, Rule 49’s UPL rules apply only to the provision of legal services in the District of Columbia. To the extent a discovery provider advertises itself as being able to assist with any discovery project occurring in the district, even if the vendor is not physically located in the district, then Rule 49’s prohibitions apply because such company would be viewed as “holding itself out” as being able to provide legal services in the district. Opinion, at 7–8.

Second, in line with the committee’s prior 1999 Opinion 6-99, contract-attorney companies cannot make the final selection of contract attorneys to staff on a project, nor can the companies provide legal supervision over the contract attorneys. Both of those tasks must be handled by a member of the D.C. Bar with an attorney-client relationship with the client. The company’s role should be limited to the administrative aspects of the review (i.e., finding and interviewing reviewers, handling payroll and taxes, making sure the reviewers show up to work, etc.). A company is allowed to provide and supervise a person doing non-legal work if that person is not identified to the client as a lawyer. Opinion, at 8.

Third, a discovery-service company cannot use broad-based statements in its marketing materials (i.e., that the company is an “end-to-end” vendor or can provide “soup-to-nuts” solutions) without including a UPL disclaimer. This disclaimer must appear on the same page, in the same font, and in proximity to the potentially misleading statement. Statements regarding the legal expertise of the company’s staff also must contain similar disclaimers. Opinion, at 8–9.

Although the committee previously examined Rule 49 and its applicability to legal-services providers in 1999 and 2005, the committee saw fit to re-examine its prior decisions because companies providing discovery services “have dramatically expanded the scope” of their offerings. Opinion, at 4. The committee noted that these companies “offer a host of related services, from e-discovery consulting to database management to the eventual production of documents in litigation,” and that the companies also may “offer the physical space where the document review will take place, computers for conducting the review, and servers for hosting the document review.” Id.

The committee was concerned with the companies’ use of broad language in their marketing materials, including “one-stop shopping” and “comprehensive review and project management,” and about the marketing of companies’ management staff as having legal expertise that would be used in the discovery process. Opinion, at 4–5. Although the committee noted that some services provided by the companies may not “cross the line into legal practice,” such as administrative tasks, allowing discovery companies to make broad-based statements could mislead the public by implying that the companies are providing a legal judgment. Opinion, at 6.

Opinion 21-12 provides clarity to discovery-services vendors by outlining more clearly their role in the discovery process, which is limited to administrative, technical, and logistical functions. The opinion also will assist attorneys overseeing such projects by reminding them of their supervisory role over document reviews.

So, what do you think? Is this a good idea? Should it be adopted in other jurisdictions? Please share any comments you might have or if you’d like to know more about a particular topic.

Source: American Bar Association

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

eDiscovery Trends: Our 2012 Predictions

January 12, 2012

Yesterday, we evaluated what others are saying and noted popular eDiscovery prediction trends for the coming year. It’s interesting to identify common trends among the prognosticators and also the unique predictions as well.

But we promised our own predictions for today, so here they are. One of the nice things about writing and editing a daily eDiscovery blog is that it forces you to stay abreast of what’s going on in the industry. Based on the numerous stories we’ve read (many of which we’ve also written about), and in David Letterman “Top 10” fashion, here are our eDiscovery predictions for 2012:

Still More ESI in the Cloud: Frankly, this is like predicting “the Sun will be hot in 2012”. Given the predictions in cloud growth by Forrester and Gartner, it seems inevitable that organizations will continue to migrate more data and applications to “the cloud”. Even if some organizations continue to resist the cloud movement, those organizations still have to address the continued growth in usage of social media sites in business (which, last I checked, are based in the cloud). It’s inevitable.
More eDiscovery Technology in the Cloud As Well: We will continue to see more cloud offerings for eDiscovery technology, ranging from information governance to preservation and collection to review and production. With the need for corporations to share potentially responsive ESI with one or more outside counsel firms, experts and even opposing counsel, cloud based Software-as-a-Service (SaaS) applications are a logical choice for sharing that information effortlessly without having to buy software, hardware and provide infrastructure to do so. Every year at LegalTech, there seems to be a few more eDiscovery cloud providers and this year should be no different.
Self-Service in the Cloud: So, organizations are seeing the benefits of the cloud not only for storing ESI, but also managing it during Discovery. It’s the cost effective alternative. But, organizations are demanding the control of a desktop application within their eDiscovery applications. The ability to load your own data, add your own users and maintain their rights, create your own data fields are just a few of the capabilities that organizations expect to be able to do themselves. And, more providers are responding to those needs. That trend will continue this year.
Technology Assisted Review: This was the most popular prediction among the pundits we reviewed. The amount of data in the world continues to explode, as there were 988 exabytes in the whole world as of 2010 and Cisco predicts that IP traffic over data networks will reach 4.8 zettabytes (each zettabyte is 1,000 exabytes) by 2015. More than five times the data in five years. Even in the smaller cases, there’s simply too much data to not use technology to get through it all. Whether it’s predictive coding, conceptual clustering or some other technology, it’s required to enable attorneys manage the review more effectively and efficiently.
Greater Adoption of eDiscovery Technology for Smaller Cases: As each gigabyte of data is between 50,000 and 100,000 pages, a “small” case of 4 GB (or two max size PST files in Outlook® 2003) can still be 300,000 pages or more. As “small” cases are no longer that small, attorneys are forced to embrace eDiscovery technology for the smaller cases as well. And, eDiscovery providers are taking note.
Continued Focus on International eDiscovery: So, cases are larger and there’s more data in the cloud, which leads to more cases where Discovery of ESI internationally becomes an issue. The Sedona Conference® just issued in December the Public Comment Version of The Sedona Conference® International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation & Discovery of Protected Data in U.S. Litigation, illustrating how important an issue this is becoming for eDiscovery.
Prevailing Parties Awarded eDiscovery Costs: Shifting to the courtroom, we have started to see more cases where the prevailing party is awarded their eDiscovery costs as part of their award. As organizations have pushed for more proportionality in the Discovery process, courts have taken it upon themselves to impose that proportionality through taxing the “losers” for reimbursement of costs, causing prevailing defendants to say: “Sue me and lose? Pay my costs!”.
Continued Efforts and Progress on Rules Changes: Speaking of proportionality, there will be continued efforts and progress on changes to the Federal Rules of Civil Procedure as organizations push for clarity on preservation and other obligations to attempt to bring spiraling eDiscovery costs under control. It will take time, but progress will be made toward that goal this year.
Greater Price/Cost Control Pressure on eDiscovery Services: In the meantime, while waiting for legislative relief, organizations will expect the cost for eDiscovery services to be more affordable and predictable. In order to accommodate larger amounts of data, eDiscovery providers will need to offer simplified and attractive pricing alternatives.
Big Player Consolidation Continues, But Plenty of Smaller Players Available: In 2011, we saw HP acquire Autonomy and Symantec acquire Clearwell, continuing a trend of acquisitions of the “big players” in the industry. This trend will continue, but there is still plenty of room for the “little guy” as smaller providers have been pooling resources to compete, creating an interesting dichotomy in the industry of few big and many small providers in eDiscovery.

So, what do you think? Care to offer your own predictions? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: 2012 Predictions – By The Numbers

January 11, 2012

With a nod to Nick Bakay, “It’s all so simple when you break things down scientifically.”

The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year. I know what you’re thinking – “oh no, not another set of eDiscovery predictions!” However, at eDiscovery Daily, we do things a little bit differently. We like to take a look at other predictions and see if we can spot some common trends among those before offering some of our own (consider it the ultimate “cheat sheet”). So, as I did last year, I went “googling” for 2012 eDiscovery predictions, and organized the predictions into common themes. I found eDiscovery predictions here, here, here, here, here, here and Applied Discovery. Oh, and also here, here and here. Ten sets of predictions in all! Whew!

A couple of quick comments: 1) Not all of these are from the original sources, but the links above attribute the original sources when they are re-prints. If I have failed to accurately attribute the original source for a set of predictions, please feel free to comment. 2) This is probably not an exhaustive list of predictions (I have other duties in my “day job”, so I couldn’t search forever), so I apologize if I’ve left anybody’s published predictions out. Again, feel free to comment if you’re aware of other predictions.

Here are some of the common themes:

Technology Assisted Review: Nine out of ten “prognosticators” (up from 2 out of 7 last year) predicted a greater emphasis/adoption of technological approaches. While some equate technology assisted review with predictive coding, other technology approaches such as conceptual clustering are also increasing in popularity. Clearly, as the amount of data associated with the typical litigation rises dramatically, technology is playing a greater role to enable attorneys manage the review more effectively and efficiently.
eDiscovery Best Practices Combining People and Technology: Seven out of ten “augurs” also had predictions related to various themes associated with eDiscovery best practices, especially processes that combine people and technology. Some have categorized it as a “maturation” of the eDiscovery process, with corporations becoming smarter about eDiscovery and integrating it into core business practices. We’ve had numerous posts regarding to eDiscovery best practices in the past year, click here for a selection of them.
Social Media Discovery: Six “pundits” forecasted a continued growth in sources and issues related to social media discovery. Bet you didn’t see that one coming! For a look back at cases from 2011 dealing with social media issues, click here.
Information Governance: Five “soothsayers” presaged various themes related to the promotion of information governance practices and programs, ranging from a simple “no more data hoarding” to an “emergence of Information Management platforms”. For our posts related to Information Governance and management issues, click here.
Cloud Computing: Five “mediums” (but are they happy mediums?) predict that ESI and eDiscovery will continue to move to the cloud. Frankly, given the predictions in cloud growth by Forrester and Gartner, I’m surprised that there were only five predictions. Perhaps predicting growth of the cloud has become “old hat”.
Focus on eDiscovery Rules / Court Guidance: Four “prophets” (yes, I still have my thesaurus!) expect courts to provide greater guidance on eDiscovery best practices in the coming year via a combination of case law and pilot programs/model orders to establish expectations up front.
Complex Data Collection: Four “psychics” also predicted that data collection will continue to become more complex as data sources abound, the custodian-based collection model comes under stress and self-collection gives way to more automated techniques.

The “others receiving votes” category (three predicting each of these) included cost shifting and increased awards of eDiscovery costs to the prevailing party in litigation, flexible eDiscovery pricing and predictable or reduced costs, continued focus on international discovery and continued debate on potential new eDiscovery rules. Two each predicted continued consolidation of eDiscovery providers, de-emphasis on use of backup tapes, de-emphasis on use of eMail, multi-matter eDiscovery management (to leverage knowledge gained in previous cases), risk assessment /statistical analysis and more single platform solutions. And, one predicted more action on eDiscovery certifications.

Some interesting predictions. Tune in tomorrow for ours!

So, what do you think? Care to offer your own “hunches” from your crystal ball? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Year in Review: eDiscovery Case Law, Part 2

January 4, 2012

As we noted yesterday, eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases! Yesterday, we looked back at cases related to eDiscovery cost reimbursement, form of production and international discovery issues. But, there’s many more cases to recap. As Lt. Col Frank Slade would say, “I’m just getting warmed up”. Whoo Ah!

We grouped those cases into common subject themes and will review them over the next few posts. Perhaps you missed some of these? Now is your chance to catch up!

PRIVILEGE / INADVERTENT DISCLOSURES

Decisions regarding what information is privileged and whether privilege is waived when inadvertent disclosures occur is always a hot issue for debate. That was no different in 2011. And, if you receive an inadvertent disclosure and don’t disclose it, you can get kicked off the case. Here are five cases related to privilege and inadvertent disclosures:

Privilege Waived for Produced Servers. Fontainebleau Resort, LLC (FRLLC) produced two servers without conducting any review of the materials, at least one of which had previously been produced to other banks involved in the underlying litigation. Would they be required to waive privilege on those servers?

When is Attorney-Client Communication NOT Privileged? One answer: When it’s from your work email account, and your employer has a written policy that company email is not private and subject to audit. Oh, and you’re suing your employer.

Read Inadvertent Email, Get Disqualified from Case. Lesson of the day: When you receive an inadvertently sent privileged email, read it and don’t disclose receipt of it, you can get kicked off the case. In this case, the court disqualified defendant's in-house and outside counsel for their handling of a disputed privileged email that was inadvertently sent by the plaintiffs' counsel to the defendant and shared with defendant’s outside counsel.

Defendants' Privilege Waived for "Completely Ineffective" Discovery Procedures. In a case over purported building and zoning code violations, an Illinois District Court has found the defendants responsible for inadvertently producing several privileged documents during discovery and for a failure to correct the problem in a timely manner, and has ordered the privilege to be waived.

Court Rules Against Exclusion of Privileged Email. A District of Columbia court has ruled against exclusion of a privileged email that was inadvertently produced by the defendant, ruling that the defendant's actions before and after the discovery of the email's production pursuant to Federal Rule of Civil Procedure 26(b)(5)(B) were not sufficient to ensure protections under Federal Rule of Exclusion (FRE) 502(b)(3), in a case involving alleged violations of the District of Columbia Whistleblower Act.

PROPORTIONALITY

With the explosion of data in the world and rising costs for preserving, collecting, reviewing and producing that data, it’s not surprising that eDiscovery costs are spiraling upward, causing many to cry “uncle” and making the word “proportionality” become quite trendy, with parties and even courts. Here are four cases where proportionality of eDiscovery was an issue. Oh, and if you can’t complete production until after the trial is over, that’s probably too late.

Completing Production AFTER Trial is Too Late. In this case, Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia denied the defendant’s request for consideration that the District had waived all objections, including privileges, and ordered production within one week of the close of trial. In denying the motion, the court likened the proposed production to “a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes.”

KPMG Denied in Request for “Proportionality Test” to Preservation. In this case, KPMG sought a protective order to narrow its preservation obligation scope to only a random sample of 100 hard drives from among those it had already preserved for this and other litigation or shift the cost of any preservation beyond that requested scope. With that request in hand, the court considered KPMG's request for proportionality as it applied to its preservation obligations.

Court Grants Adoption of Model Order for Patent Case. Model orders to limit discovery for patent cases have gained popularity in various jurisdictions, including a recent order proposed in Texas. Here’s one patent case where the defendant sought to adopt such a model order.

Plaintiff Not Required to Review Millions of Pages of Unallocated Space. In this case, the court affirmed the Magistrate Judge’s order which excused plaintiff from having to review and produce millions of pages of documents recovered from unallocated space files due to the extreme burden and cost to do so.

EDISCOVERY SERVICE DISPUTES

It’s a darn shame when law firms can’t get along with their corporate clients or with the vendors they hired. Perhaps the most discussed case of the year was the eDiscovery malpractice case involving McDermott, Will & Emery, with posts in eDiscovery Daily here, here and here. Here are two cases where the actual eDiscovery services being provided were in dispute:

eDiscovery Malpractice Case Highlights Expectation of Higher Standards. Having noted in eDiscovery Daily that competency ethics are no longer just about the law and that competency in eDiscovery best practices is expected from the attorneys and any outside providers they retain, this case may be the first eDiscovery malpractice case ever filed against a law firm (McDermott Will & Emery) for allegedly failing to supervise contract attorneys that were hired to perform the client’s work and to protect privileged client records.

Sometimes the Vendor Sues the Law Firm – And Wins! The eDiscovery malpractice case involving McDermott, Will & Emery associated with inadvertent production of 3,900 privileged documents has captured considerable interest in the industry and this blog. Sometimes, the “shoe is on the other foot”, so to speak.

Tune in tomorrow for more key cases of 2011 and see the topic that continues to generate more case law related to eDiscovery than any other!

So, what do you think? Did you miss any of these? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Award for Database Costs Reversed Due to Cost Sharing Agreement

December 27, 2011

An award of costs of $938,957.72, including the winning party’s agreed half share of the cost of a database or $234,702.43, was reversed in Synopsys, Inc. v. Ricoh Co. (In re Ricoh Co. Patent Litigation), No. 2011-1199 (Fed. Cir. Nov. 23, 2011). While the cost of the database could have been taxed to the losing party, the agreement between the parties on cost sharing controlled the ultimate taxation of costs.

After almost seven years of litigation, Synopsys obtained summary judgment and a declaration in Ricoh’s action against seven Synopsys customers that a Ricoh software patent on integrated circuits had not been infringed. During the litigation, Ricoh and Synopsis were unable to agree on a form of production of Synopsis email with its customers, and Ricoh suggested using an electronic discovery company to compile and maintain a database of the email. Synopsis agreed to use of the company’s services and to pay half the cost of the database. After Synopsis obtained summary judgment, the district court approved items in the Synopsis bill of costs totaling $938,957.72, including $234,702.43 for Synopsis’ half share of the cost of the database and $234,702.43 for document production costs.

The court on appeal of the taxation of costs agreed that 28 U.S.C.S. § 1920 provided for recovery of the cost of the database, which was used to produce email in its native format. According to the court, “electronic production of documents can constitute ‘exemplification’ or ‘making copies’ under section 1920(4).” However, the parties had entered into an agreement on splitting the cost of the database and nothing in the 14-page agreement or communications regarding the agreement indicated that the agreement was anything other than a final agreement on the costs of the database. Faced with “scant authority from other circuits as to whether a cost-sharing agreement between parties to litigation is controlling as to the ultimate taxation of costs,” the court concluded the parties’ cost-sharing agreement was controlling. It reversed the district court’s award of $234,702.43 for Synopsis’ half share of the cost of the database.

The court also reversed and remanded the award of an additional $234,702.43 for document production costs because those costs were not adequately documented. For example, many of the invoices simply stated “document production” and did not indicate shipment to opposing counsel. The court stated that the “document production” phrase “does not automatically signify that the copies were produced to opposing counsel.”

So, what do you think? Should the agreement between parties have superseded the award? Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).

eDiscovery Trends: Service Providers Unite!

October 11, 2011

While mergers and acquisitions of major eDiscovery providers (such as Symantec’s acquisition of Clearwell and HP’s acquisition of Autonomy) dominate the headlines, the majority of eDiscovery providers are actually small to midsized companies that provide a full range of services from coast to coast. To enable the small/midsized providers to compete with the eDiscovery “bohemoths” of the world, Jerry Correia and Greg Bayless formed the Legal Service Providers Association (LSPA).

The LSPA’s mission is to help the small/midsized legal service providers grow and thrive by providing access to increased sales and marketing opportunities, training and certification programs, supplier discounts, and human resources support. The idea is that “strength in numbers” can enable LSPA’s members to compete on an equal footing with the “big boys”.

Jerry and Greg have 38 years experience in the legal services industry, managing companies providing services to law firms and corporate legal departments. They’ve spent the last 15 years to running companies focused on helping vendors in the legal services industry improve and grow by providing training, consulting, staffing and national referral services. They started the LSPA in January of this year with the belief that small to midsized companies are the best suited for and the most dedicated to providing the service excellence clients have come to expect and demand, but few providers can develop and negotiate the kinds of programs and discounts available to Fortune 500 corporations by themselves. Through membership in the LSPA, members can benefit from savings including up to 60% from suppliers such as Staples or UPS, which not only benefits the providers, but also their clients where savings can be passed along.

Since announcing its charter member program back in February, the LSPA has added 40 charter members to date. While all members of the LSPA enjoy benefits such as training and supplier credits and discounts, and sales/marketing and technical support, charter member companies receive additional exposure and branding opportunities through premium placements on their website, emails, press releases and newsletters.

Part of LSPA’s education program includes webinars available to its members. In the past two months, LSPA has conducted webinars related to understanding the risks associated with collecting ESI (conducted by Jason Park, owner of MD5 Group) and top 10 eDiscovery trends and predictions (conducted by Maura R. Grossman, Counsel at Wachtell, Lipton, Rosen & Katz, and Ronald J. Hedges, former United States Magistrate Judge).

Want to learn more? Tomorrow, the LSPA is conducting an Informational and Membership Benefits webinar where they will discuss the vision for the LSPA, describe member benefits and discuss how to join the organization. To register for the webinar, click here.

So, what do you think? Do you use small or medium providers for eDiscovery services? Does the LSPA make those providers better? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: CloudNine Discovery is a charter member of the LSPA.

eDiscovery Trends: Same Old Story, Lawyers Struggling to “Get” eDiscovery

August 12, 2011

A couple of days ago, Law Technology News (LTN) published an article entitled Lawyers Struggle to Get a Grasp on E-Discovery, by Gina Passarella, via The Legal Intelligencer. Noting that “[a]ttorneys have said e-discovery can eat up between 50 to 80 percent of a litigation budget”, the article had several good observations and quotes from various eDiscovery thought leaders, including:

Cozen O'Connor member David J. Walton, co-chairman of the firm's eDiscovery task force, who observed that “I'm afraid not to know [eDiscovery] because it dominates every part of a case”;
LDiscovery General Counsel Leonard Deutchman, who noted that the younger generation comfortable with the technology will soon be the judges and attorneys handling these matters, asked the question “what happens to those people that never change?”. His answer: “They die.”
K&L Gates eDiscovery analysis and technology group Co-Chairman Thomas J. Smith noted that “A lot of the costs in e-discovery are driven by paranoia because counsel or the party themselves don't really know the rules and don't know what the case law says”.
Morgan Lewis & Bockius partner Stephanie A. "Tess" Blair heads up the firm's e-data practice and hopes that in five years eDiscovery will become more routine, noting “I think we're at the end of the beginning”.
Dechert's e-discovery practice guru Ben Barnett said, “Technology created the problem, so technology needs to solve it.” But, David Cohen, the head of Reed Smith's eDiscovery practice, said that the increasing amount of data sources are keeping ahead of that process, saying “You have to make improvements in how you handle it just to tread water in terms of cost”.

There are several other good quotes and observations in the article, linked above.

On the heels of Jason Krause’s two part series on this blog regarding the various eDiscovery standards organizations, and the controversy regarding eDiscovery certification programs (referenced by this post regarding the certification program at The Organization of Legal Professionals), where do attorneys turn for information? How do attorneys meet the competency requirements that the American Bar Association (ABA) Model Rules set forth, when an understanding of eDiscovery has become an increasing part of those requirements?

One common denominator of the firms quoted above is that they all have one or more individuals focused on managing the eDiscovery aspect of the cases in which they’re involved. Having an eDiscovery specialist (or a team) can be a key component of effectively managing the discovery process. If you’re a smaller firm and cannot devote a resource to managing eDiscovery, then find a competent provider that can assist when needed.

In addition to identifying an “expert” within or outside the firm, there are so many resources available for self-education that any attorney can investigate to boost their own eDiscovery “savvy”. Join one of the standards organizations referenced in the two part series above. Or, participate in a certification program.

One method for self-education that attorneys already know is case law research – while there is always variety in how some of the issues are handled by different courts, case decisions related to eDiscovery can certainly identify risks and issues that may need to be addressed or mitigated. Subscribing to one or more resources that publish eDiscovery case law is a great way to keep abreast of developments. And, I would be remiss if I didn’t note that eDiscovery Daily is one of those resources – in the nearly 11 month history of this blog, we have published 43 case law posts to date. More to come, I’m sure… 😉

So, what do you think? Do you have a game plan for “getting” eDiscovery? Please share any comments you might have or if you'd like to know more about a particular topic.

Working Successfully with eDiscovery and Litigation Support Service Providers: Paper is Still Important, Part 2

August 1, 2011

Friday, we talked about the information you should include in a request for proposal for processing a paper discovery collection. Today we’ll review some questions you should ask of a service provider to help you to select the provider that’s the best fit for your case.

Of course, you’ll ask for pricing information, if the vendor can meet your schedule requirements, and for references. In addition, here are questions to ask and information to request:

Describe the qualifications of project management staff: What is the average tenure in the industry? At the organization? What education and prior work experience is required?
Describe the qualifications of project staff: What is the average tenure in the industry? At the organization? Describe the training given to new processing staff.
Describe the workflow process for the required services, including information on the flow of documents and data through the process.
What technology is used for the services that are required?
Describe quality control procedures and policies, including how errors are fixed and how feedback on work is funneled back to the staff.
Describe the level of quality control that is done. For example: percentage of the data checked, and whether that percentage applies to total characters, data fields or documents.
Describe the data entry system that you use, including a field-by-field description of any validation that occurs during data entry. Is double-key entry being conducted?
Describe post-processing automated validation that occurs.
If any portion of all of the work will be subcontracted to another service provider, identify that provider (including geographic location of the facility where the work will be done), and provide responses to each information-point above for each sub-contractor.

The response to these questions and information requests should give you the information you need to choose a vendor that’s a good fit for your project. This means Friday and today, this blog is officially renamed to pDiscovery Daily!

What questions to you ask and what information do you request in an RFP for paper processing? Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

Working Successfully with eDiscovery and Litigation Support Service Providers: Paper is Still Important

July 29, 2011

For several years now, the focus of our discovery efforts has been handling ESI. Paper, however, hasn’t gone away yet. And it probably won’t any time soon. People still have at least small collections of paper that need to be handled.

What’s the best way to handle paper? Convert it ASAP and blend it into the rest of the collection so attorneys can do a comprehensive review of the entire universe of potentially responsive documents. That means scanning, coding, and OCR processing to enable the paper to reviewed and searched.

Here’s information the vendor will need to give you accurate cost and schedule information for handling the paper portion of your collection:

A description of the services that you will require (for example, establishing document boundaries, establishing document relationships, document reassembly, periphery coding, in-text coding, scanning, OCR).
The approximate number of pages and documents in the collection.
A description of the condition of the paper and characteristics (are the pages photocopies or originals? Staples and paper clips? Oversized and undersized pages? Are there sticky notes?). Include special instructions, where warranted (for example, “Sticky notes are to be removed, scanned separately and placed before the documents to which they are attached”).
Whether paper will be shipped/delivered to the vendor or whether on-site work will be required. If on-site work is required, the locations at which the paper will be available.
The date on which the pages will be available to the service provider, and a schedule for collections that will be available for increments.
A description of the types of document in the collection (for example, correspondence, contracts, form documents, reports, and so on).
If coding is required, a list of the fields to be captured with descriptions and format requirements for each field.
If coding is required, a description of levels of treatment to be applied, if any have been established.
If coding is required, a description of any data standardization you will require, and lists of valid entries for fields with a controlled vocabulary.
A description of the deliverables you will require (image file formats, load file formats, single-page or multi-page text files, and so on)
The date by which the project must be completed.

Armed with this information, a good vendor should be able to provide accurate cost and schedule information for processing your paper collection. On Monday, we’ll cover RFP questions for the vendors to answer regarding their paper processing services. This means today and Monday, this blog is officially renamed to pDiscovery Daily!

What type of information do you provide to a vendor in an RFP for processing paper? Please share any comments you might have and let us know if you’d like to know more about an RFP topic.

Working Successfully with eDiscovery and Litigation Support Service Providers: Preparing an eDiscovery Processing RFP, Part 2

July 20, 2011

Yesterday, we talked about the information you should include in a request for proposal for eDiscovery processing. Today we’ll review some questions you should ask of a service provider to help you to select the one that’s the best fit for your case.

Of course, you’ll ask for pricing information and if the vendor can meet your schedule requirements. In addition, here are questions to ask and information to request:

To ensure that you understand the vendor’s pricing model and to avoid unexpected costs, ask the vendor to provide an estimate of total costs for the project, based on the information you’ve provided about the collection.
Ask the vendor to confirm that they can meet all of the requirements you’ve outlined in the information section of the RFP.
Ask what file types are handled, and what the standard protocol/recommendation is for handling other file types.
Ask the vendor how exception files, such as corrupted or password protected files, are handled.
Ask the vendor to describe its approach to processing, including discussion of de-duplication, handling attachments, handling email threads, culling/filtering, and handling metadata.
Ask what languages are supported.
Ask the vendor to describe its auditing and tracking procedures.
Ask the vendor to describe the quality assurance (measures to prevent errors) and quality control (measures to confirm that results are correct) mechanisms included associated with their processing.
Ask the vendor to describe what information, input and participation is required from you.

The response to these questions and information requests should give you the information you need to choose a vendor that’s a good fit for your project.

What questions to you ask and what information do you request in an RFP for eDiscovery processing? Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

Outsourcing