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Marketing a Litigation Support / eDiscovery Department within a Law Firm: Keep Existing Customers, Part 1
Yesterday, we concluded our discussion about getting new customers.  Today, we begin discussing how to keep the customers you already have.

Getting repeat business from your clients is essential.  If every client only used your services once, at some point you’d be out of business.  You need to focus, therefore, on getting repeat business.  There are three things you should be doing:

  1. Continuously remind your customers of the services that you offer.
  2. Look for new ways to help the customers that you have.
  3. Focus on providing premier customer service. An attorney will not use your services a second time if he or she was not happy with the service you provided the first time!

Let’s start with reminding your customers about the services that you offer.  Don’t let them forget that you are available to help them.  Many of the mechanisms we covered in the posts on Getting New Customers apply here too.  Here are a few suggestions:

  1. Make sure that all of the clients for whom you’ve done work are on your newsletter distribution list.
  2. Invite them to presentations that you’ve got scheduled.
  3. Contact them when you see they have a new case and ask how you can help.
  4. If you see an article that is relevant to a client, forward it with a personal note.
  5. Pick up the phone and call an attorney for whom you’ve done good work and ask how they are doing, what they are working on, and if you can help.
  6. Be visible.  Be everywhere.  Attend every firm event that you can.  Eat lunch in the firm dining room.  Walk around and schmooze.  Of all the points on this list, this one is the most important.  Everyone is familiar with the saying “out of sight, out of mind”.  Don’t be either!

Next week we’ll continue talking about ways to keep the customers that you have.  In the meantime, we’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.

Marketing a Litigation Support / eDiscovery Department within a Law Firm: Getting New Customers, Part 5
Last week, we started talking about techniques and mechanisms for one-on-one marketing to individual attorneys and litigation teams in your firm.  Here are a few more tips:
  • Be enthusiastic about what you do.  It’s contagious and it will get others excited about your offerings.
  • Be prepared for objections.  If you’ve been working with attorneys for a while, you know what objections might be raised to using your services and products.  Be prepared to address them.  Some of the repeated objections I’ve encountered are:
    • “My client won’t pay for this”:  Be prepared with cost information and cost analyses and comparisons.  You know that what you do fosters efficiency and saves money in the long run, so have the information you need to demonstrate that.
    • “Only an attorney can do this”:  Be prepared to describe a process that will make them comfortable and ensure them that substantive decisions and answers remain in the hands of attorneys.  Have testimonials from other attorneys in the firm that rave about how well it worked for them
    • “I tried that once and it was a disaster”: You may face some attorneys who have had a prior bad experience with the services you offer.  The costs may have been out of hand, deadlines may have been missed, or a database may have not been useful.  Be prepared to discuss the mechanisms that are built into your approach for controlling costs and meeting deadlines.  Be prepared to discuss the planning and design steps that you take to ensure that a database will be useful.  Be prepared to discuss the approach you take to monitoring service providers to ensure that they live up to the commitments they make.
  • Provide references.  When you’ve done good work for someone, ask if they will serve as a reference, and have references on hand for potential new clients.
  • Make “Getting that first sale” your primary objective.  Don’t try to sell them the whole ball of wax.  Identify what they need right now and focus on that.  Focus on solving an immediate problem.  If you get your foot in the door with one task and you do a good job, getting them to buy off on future work will be easier.  And, don’t give them too many options unless that’s necessary.  You are the expert and you know the best options.  If you give them too many options, the decision will be harder to make.

So far, we’ve covered several mechanisms and techniques getting new customers.  Tomorrow we’ll start talking about techniques and mechanisms for keeping your existing customers.

In the meantime, we’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.

eDiscovery Trends: SEC Orders Its Staff to Cease Document Destruction Pending Policy Review
The U.S. Securities and Exchange Commission (“SEC”) recently ordered all of its enforcement staff attorneys to cease the destruction of documents from investigative files after criticism that the SEC wrongfully destroyed thousands of documents associated with high profile enforcement matters, including investigations into Wall Street banks.  The National Archives and Records Administration (NARA) and the SEC’s inspector general are currently examining whether the organization’s document destruction policy requires revision. This cease order comes in the wake of information provided by a SEC whistleblower, indicating that the SEC wrongfully destroyed thousands of documents from preliminary investigations referred to as “MUIs” (Matters Under Inquiry).
  • In the past, the SEC would destroy documents pertaining to “MUIs” that had been closed, including cases that never developed into formal investigations as well as those that had been decided.
  • Some of these destroyed documents pertained, either directly or peripherally, to what would later become high profile cases. Among them were documents relevant to the Madoff Ponzi scheme and several Wall Street bank fraud investigations.
  • Although private companies routinely destroy documents and files that are closed or no longer in use, the SEC is subject to federal laws and regulations that require federal agencies to retain more records than a private firm. The SEC has been criticized by members of Congress of violating these laws and avoiding its legal compliance burden, especially where destroyed documents could have proven crucial in later legal cases.
  • As a result, the present controversy has forced the SEC to work with NARA to reconsider its document retention policies and to suspend, for now, destruction of files and documents. Parties are still arguing whether a requirement to retain all documentation distracts resources from the SEC’s main objective of preventing, discovering and penalizing those involved in securities fraud.

So, what do you think? Has the SEC failed in a serious way to meet compliance standards, or is this controversy placing undue emphasis on documents that are unlikely to ever be needed? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Horrors! Does This Scare You?
Today is Halloween.  While we could try to “scare” you with the traditional “frights”, we’re an eDiscovery blog, so it seems appropriate to try to “scare” you in a different way.  Does this scare you?

Although the court declined to re-open the case, it found that defendant had committed discovery abuses, including failing to disclose relevant evidence and failing to issue a litigation hold; therefore, the court ordered the defendant to pay plaintiff an additional $250,000 over the previously agreed settlement amount.  The court further ordered that defendant had thirty days to furnish a copy of the court’s Memorandum Opinion and Order “to every Plaintiff in every lawsuit it has had proceeding against it, or is currently proceeding against it, for the past two years” and issued an additional $500,000 sanction to be “extinguished” upon a showing of compliance.

What about this?

Even though many (but not all) of the documents were recovered (most from backup tape), the court rejected the defendant’s argument that “there can be no spoliation finding because many documents were recovered” and eventually produced, stating: “The fact that technology permits the undoing of spoliation does not change at all the fact that spoliation has occurred.”

Or this?

Then, in January of this year, Judge Grimm entered an order awarding a total of $1,049,850.04 in “attorney’s fees and costs associated with all discovery that would not have been un[der]taken but for Defendants’ spoliation, as well as the briefings and hearings regarding Plaintiff’s Motion for Sanctions.”

How about this?

The court concluded based on case history that “emails and text messages are documents and subject to the same requirements for authenticity as non-electronic documents generally” and found that the evidence that the defendant had authored these text messages was absent.

Scary, huh?  If the possibility of sanctions and changing court requirements keep you awake at night, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Of course, if you really want to get into the spirit of Halloween, click here.  This will really terrify you!

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

eDiscovery Case Law: Court Rules 'Circumstantial Evidence' Must Support Authorship of Text Messages for Admissibility

When are text messages admissible in court? Which text messages qualify as evidence, and what does it take to prove authorship of a text message?

A recent opinion from the Pennsylvania Superior Court, Commonwealth v. Koch, No. 1669-MDA-2010, 2011 Pa. Super. LEXIS 2716 (Sept. 16, 2011), addresses these very issues in an old yet new way, perhaps setting the precedent for future cases and opening what seems to be a potential Pandora’s Box of obstacles to the use of text messages as legal evidence.

  • In Commonwealth v. Koch, a transcript of thirteen SMS text messages were submitted by the prosecution and admitted into evidence. Although these text messages had been sent from a cell phone owned by the defendant, defense objected to their admission on the grounds that no evidence substantiated the defendant’s authorship of the text messages in question.
  • In fact, witnesses had testified that other people had been seen using the cell phone. Several of the thirteen text messages referred to the defendant in the third person, which substantiated the defendant’s claim that she had not written or sent the text messages.
  • The court concluded based on case history that “emails and text messages are documents and subject to the same requirements for authenticity as non-electronic documents generally” and found that the evidence that the defendant had authored these text messages was absent.
  • Ruling that the defendant’s ownership of the cell phone was not enough to prove that she had sent the messages in question, the court declared that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that corroborates the sender’s identity. That evidence may come in the form of testimony from the sender or recipient, testimony of witnesses to the creation of the correspondence, or even “contextual clues” in the message itself.

Where written correspondence may be subjected to questioning (e.g., signatures can be forged or letterhead copied), eDiscovery materials that clearly come from a given email account or cell phone source have been historically less open to scrutiny.  However, since cell phones and even email accounts may be shared (or hacked), this could leave room for argument, as in this case, that the correspondence in question did not originate with the party who appears to have sent it.

In one respect, applying the old standard of evidence to new ESI materials, such as text messages might make sense. On the other hand, doing so also opens the door for defense attorneys to use the same tactic to remove text messages and email correspondence from evidence – whether or not they are legitimately relevant in court – based on the extreme challenge of proving the issue of authorship.

So, what do you think? Was the court right in ruling against the admission of these text messages as evidence? Does this decision create more eDiscovery problems than it solves? Please share any comments you might have or if you’d like to know more about a particular topic.

Marketing a Litigation Support / eDiscovery Department within a Law Firm: Getting New Customers, Part 4
Successful marketing efforts have two components – ‘big picture’ marketing aimed at spreading the word about what you offer, and one-on-one marketing to individual attorneys and litigation teams.  In the last several posts in this series, we covered ‘big-picture’ marketing.  Now let’s move on to techniques and mechanisms for one-on-one marketing.  Here are some suggestions aimed at doing one-on-one marketing that work:
  • Know your audience.  Find out everything you can about people you will be marketing do.  Do your homework and find out about the cases they handle, the types of litigation they specialize in, the prior experience they have with litigation support and eDiscovery technology, the vendors they have used, the problems they’ve had, and their level of technical expertise.  You will always find it easier to sell to someone who you know something about.
  • Understand the dynamics of the litigation team:  Before a meeting with a litigation team, find out what you can about how the team works together, who the decision makers are, how decisions are made, and who – if anyone – may have objections to what you are trying to sell.  Know whether an individual you’ll be meeting with is a decision maker, a gate-keeper, someone with influence over the decision maker, or a saboteur.  Knowing who you are marketing to will set your expectations and help you prepare for a meeting aimed at getting a project.
  • Start building a good relationship.  Even if you haven’t worked with someone, you can start building a good relationship with them.  Here are some tips:
    • Always deliver what you say you can.  If you haven’t worked with someone yet, this may be delivering references, or information about your offerings.
    • Always be upfront about what you don’t know and what you can’t do.  But, fill in those gaps quickly and get back to them with information they need and contact information for others who can solve their problem.  Even if you can’t directly help them, you can become their “go-to” person for problems.  That will usually lead to business at some point.
    • Be incredibly responsive and punctual.  Never be even a minute late for a meeting and always respond quickly to phone calls and email.
    • Ask lots of questions.  This demonstrates that you have a genuine interest in your audience.

Check in next week for some more techniques and mechanisms for doing one-on-one marketing to individual attorneys and litigation teams in the firm.

In the meantime, we’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.

Marketing a Litigation Support / eDiscovery Department within a Law Firm: Getting New Customers, Part 3
Last week, we covered several ‘big-picture’ marketing mechanisms and techniques that work well in a law firm.  There are just a few more I want to mention:
  • Get on the firm’s New Matter distribution list and reach out to attorneys with new cases. Find out about every new case that comes in the door and do research on every new client.  Reach out to the attorneys handling each new case and remind them about how you can help.  Establish a routine for this (for example, create an email template that you can reuse).  This serves two purposes:  it reminds attorneys that you’re available to help, and it may get you involved earlier in a case.
  • Keep on top of what’s going on in the industry.  You need to be the expert in litigation support and eDiscovery trends, so attorneys turn to you for news and information.  If you become the “go-to” person, your level of business will almost certainly increase.  Here are some ways you can stay in-the-know:
    • Subscribe to trade publications, like eDiscovery Daily!  😉
    • Join litigation support and eDiscovery professional associations.
    • Attend trade shows
    • Join professional social networking groups
    • Attend webinars
    • Keep in touch with peers in the industry
    • Become part of the firm’s new-hire orientation program for new litigation associates and paralegals.  Educate new-hires about what you do and how you can help.
    • Network and schmooze!  Be everywhere.  Talk to everyone.  Make it a goal that everyone in the firm knows who you are, what you do, how you can help, and how to reach you.

So far, we’ve covered several mechanisms and techniques for big-picture marketing – that is, marketing that is aimed at spreading the word about what you so.  Tomorrow, we’ll start talking about techniques and mechanisms for doing one-on-one marketing to individual attorneys and litigation teams in the firm.

In the meantime, we’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.

eDiscovery Trends: Why Predictive Coding is a Hot Topic
 Yesterday, we considered a recent article about the use of predictive coding in litigation by Judge Andrew Peck, United States magistrate judge for the Southern District of New York. The piece has prompted a lot of discussion in the profession. While most of the analysis centered on how much lawyers can rely on predictive coding technology in litigation, there were some deeper musings as well.

We all know the reasons why predictive coding is considered such a panacea, but it is easy to forget why it is needed and why the legal industry is still grappling with eDiscovery issues after so many years. Jason Baron, Director of Litigation at the U.S. National Archives and Records Administration, recently won the 2011 Emmett Leahy Award for excellence in records and information management. He took the opportunity to step back and consider why exactly the problem won’t go away. He believes that technology can help solve our problems, if applied intelligently. “We lawyers types remain stuck in a paradigm that too often relies on people and not automated technologies,” he said.

But he also warns that electronically stored data may soon overwhelm the profession. By now, readers of this blog are familiar with the dire and mind-boggling predictions about the volume of discoverable electronic data being created every day. Litigators are obviously concerned that new types of information and growing volumes of data will swamp the courts, but the problem could affect all aspects of modern life. “At the start of the second decade of the 21st century, we need to recognize that the time is now to prevent what I have termed the coming digital dark ages,” Baron said. “The ongoing and exponentially increasing explosion of information means that over the next several decades the world will be seeing records and information growth orders of magnitude greater than anything seen by humankind to date. We all need better ways to search through this information.”

As one of the leaders of the TREC Legal Track, a research experiment into searching large volumes of data more effectively, Baron has an intimate understanding of the challenges ahead, and he has serious concerns. “The paradox of our age is information overload followed by future inability to access anything of important. We cannot let that future happen” he said, talking to a roomful of records management experts and litigators. “We all need to be smarter in preventing this future dystopia.”

eDiscovery blogger Ralph Losey linked to both Judge Peck’s article and Jason’s speech, and expanded on those thoughts. Losey prefers to believe, as he wrote in a post called The Dawn of a Golden Age of Justice, that lawyers will not only survive, but thrive despite the explosion in information. “We must fight fire with fire by harnessing the new (Artificial Intelligence) capacities of computers,” he says. “If we boost our own intelligence and abilities with algorithmic agents we will be able to find the evidence we need in the trillions of documents implicated by even average disputes.”

So, what do you think? Will Artificial Intelligence in the hands of truth-seeking lawyers save us from information overload, or has the glut of electronic information already swamped the world? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: A Green Light for Predictive Coding?
There are a handful of judges whose pronouncements on anything eDiscovery-related are bound to get legal technologists talking. Judge Andrew Peck, United States magistrate judge for the Southern District of New York is one of them. His recent article, Search, Forward, published in Law Technology News, is one of the few judicial pronouncements on the use of predictive coding and has sparked a lively debate.

To date there is no reported case tackling the use of advanced computer-assisted search technology (“predictive coding” in the current vernacular) despite growing hype. Many litigators are hoping that judges will soon weigh in and give the profession some real guidance on the use of predictive coding in litigation. Peck says it will likely be a long time before a definitive statement come from the bench, but in the meantime his article provides perhaps the best insight into at least one judge’s thinking.

Judge Peck is probably best known in eDiscovery circles for the March 19, 2009 decision, William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009) (Peck, M.J.). In it, he called for “careful thought, quality control, testing and cooperation with opposing counsel in designing search terms or ‘keywords’ to be used to produce emails or other electronically stored information”.

Peck notes that lawyers are not eager to take the results of computer review before a judge and face possible rejection. However, he says those fears are misplaced, that admissibility is defined by content of a document, not how it was found. Peck also relies heavily on research we have discussed on this blog, including the TREC Legal Track, to argue that advanced search technology can provide defensible search methods.

While he stops short of green lighting the use of such technology, he does encourage lawyers in this direction. “Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval,” he writes. “In my opinion, computer-assisted coding should be used in those cases where it will help ‘secure the just, speedy, and inexpensive’ (Fed. R. Civ. P. 1) determination of cases in our e-discovery world.”

Silicon Valley consultant Mark Michels agrees with Peck’s article writing in Law Technology News that, “the key to (predictive coding’s) defensibility is upfront preparation to ensure that the applied tools and techniques are subject to thoughtful quality control during the review process.”

But other commenters are quick to point out the limitations of predictive coding. Ralph Losey expands on Peck’s argument, describing specific and defensible deployment of predictive coding (or Artificial Intelligence in Losey’s piece). He says predictive coding can speed up the process, but that the failure rate is still too high. Losey points out “the state of technology and law today still requires eyeballs on all ESI before it goes out the door and into the hands of the enemy,” he writes. “The negative consequences of disclosure of secrets, especially attorney-client privilege and work product privilege secrets, is simply too high.”

Judge Peck’s article is just one sign that thoughtful, technology-assisted review be deployed in litigation. Tomorrow, we will review some darker musings on the likelihood that predictive coding will save eDiscovery from the exploding universe of discoverable data.

So, what do you think? Is predictive coding ready for prime time?  Can lawyers confidently take results from new search technology before a judge without fear of rejection? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Reporting from the 2011 EDRM Mid-Year Meeting
The Electronic Discovery Reference Model (EDRM) Project, created to address the lack of standards and guidelines in the electronic discovery market, is now in its seventh year of operation.  Most references to the eDiscovery industry these days refer to the EDRM model as the standard representation of the eDiscovery life cycle.  I’m happy to say I’ve been a participating member for all but the first year of its existence and that CloudNine Discovery is a participating provider.  And, this blog has certainly noted some of the recent efforts and accomplishments within EDRM, including the recently announced information governance collaboration efforts between EDRM and ARMA and the announcement of the first draft of the Model Code of Conduct (MCoC) to focus on the ethical duties of eDiscovery service providers and their clients.

This week, the EDRM Mid-Year meeting has taken place in St. Paul, MN (giving some of us a chance to break out our winter clothes early!).  Twice a year, in May and October, eDiscovery professionals who are EDRM members meet to continue the process of working together on various standards projects.

I have joined the new Testing working group, which has been created to provide a methodology for risk evaluation through validation and verification of eDiscovery processes and technologies.  We spent time the past two days working to develop a survey of eDiscovery professionals to help us prioritize activities for testing methodology development and the beginning of a checklist for litigation hold notification processes and software.

As data set development is a key component of a good testing program, we also worked to identify additional file types and anomalies to add to the current EDRM Data Set project to aid in that testing.  Though the current data set, based on public domain Enron case data, has proven to be an excellent resource for testing eDiscovery software and processes, there are several test examples that could be added to ensure a more complete test set.  The Testing working group plans to finalize a first cut at additional data set needs in the next few weeks and will likely take an active role in locating or creating those additional test set examples.

Highlights of activities for other working groups in the Mid-Year meeting include:

  • Information Governance Reference Model (IGRM): Working on completing a guide for using the IGRM model as well as use cases and a toolkit for facilitating understanding of the model and how to implement it.
  • Evergreen: Has started work on an educational initiative, coordinating with the IGRM working group.
  • Model Code of Conduct: Has implemented changes resulting from comments to the working draft of the MCoC document and will be posting the final version of the code soon, they will then be implementing a mechanism to track and recognize the organizations that volunteer to adhere to the code.
  • Search: Working on a Sampling and Validation paper and expects to have a working draft ready for comment soon, they also plan to complete a Search Intent Framework and Frequently Asked Questions (FAQ) document by next year’s annual meeting.
  • XML: Has revamped the downloads page for downloading the XML schema, with version 1.1 of the schema currently available and a press release to announce version 2.0 of the schema coming soon.

These highlights are based on my notes, so, EDRM members, if I misstated or left out anything, please feel free to comment.

So, what do you think?  Has EDRM impacted how you manage eDiscovery?  If so, how?  Please share any comments you might have or if you’d like to know more about a particular topic.