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Pete Feinberg of Consilio: eDiscovery Trends

This is the seventh of the 2016 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year to get their observations regarding trends at the show and generally within the eDiscovery industry.  Unlike previous years, some of the questions posed to each thought leader were tailored to their position in the industry, so we have dispensed with the standard questions we normally ask all thought leaders.

Today’s thought leader is Pete Feinberg.  Pete is Senior Vice President of Product Strategy at Consilio, responsible for the overall product strategy and product management of Consilio’s products and services line.  Prior to joining Consilio, Pete ran marketing for the largest vertical of Blackboard – a Washington DC-based education technology company. Prior to that, Pete served as vice president in various product, partner marketing and eCommerce roles at a variety of B2B software and B2C eRetail companies in the Washington DC area. Pete’s specialties are in guiding product strategy, bringing new products and services to market, representing the voice of the client as an executive “client advocate”, and guiding the service delivery organization to engage with clients not as a vendor, but instead as a trusted advisor.

What are your general observations about LTNY this year?

For me, LTNY has always been about connecting with clients and prospective clients.  As we do so, we hearing about the challenges that people are having, and what they’re doing to tackle those challenges, and what we ought to be doing as a services provider to help them overcome those challenges.  In that regard, I think it has been a great LegalTech.

From my vantage point, it makes an awful lot of sense for those in the legal community to come in every two years to stay connected, understand the state of the technology in our industry, talk with people that you haven’t seen in a while and be a part of the innovation and evolution of our space.  From that perspective, it has been a very fulfilling LegalTech and I’ve had a lot of fun doing so.

At the end of the day, LegalTech or anything else we do is about connecting with our clients.  It’s about making sure that we have the opportunity to have that discussion.  If that discussion can happen in a large format, splashy booth – so be it.  If it can happen in other venues that are less expensive, that’s even better.  What’s important to us – and guides all that we do here at LTNY – is making sure that we have that discussion with our clients one way or another.  We’ll continue to recalibrate and figure out our best approach to LTNY as we go.

It seems like acquisition and investment in the eDiscovery market is accelerating, with Consilio being forefront in that acquisition and investment in the market.  Do you feel that we are beginning to see true consolidation in the market?

Our industry is reaching a plateau of maturity.  My history in the eDiscovery and legal space goes back three years, so I’ll echo what I’ve heard from those who’ve been in the space before I got here.  Those long-timers tell the story that there was a time when LegalTech was not always all about eDiscovery.  But right now, when you look around, it’s almost an eDiscovery event and other technology is more of a footnote.  That may be overstating it a bit, but let’s just say that eDiscovery providers are taking a dominant position in all of the major signage around the show and, if you look at all of the major booths on the exhibit floor, they all seem to be eDiscovery-oriented.

In the past couple of years, the common theme people were echoing was a sentiment of disappointment or feeling of loss that there was no new “next big thing”.  That’s a bit of a head scratcher personally, because technology will proceed at technology’s pace and it seems that statement is somewhat grounded in expectation that technology is always going to come up with some discontinuous innovation in a 12 month cycle that’s going to turn the entire market on its head and that’s just not a reasonable expectation as markets mature over time.

I also believe the activity that we’re seeing on the consolidation and M&A front is very indicative of the market maturing.  Niches have largely been filled.  And US-centric service providers have increased their depth, either organically or through inorganic acquisition.  But there is still a bit of a “wild west” openness outside of the US.  In Europe, there are fewer true providers and in Asia, there are fewer true providers still.  So, there is still opportunity for investment, innovation and growth, and I expect that’s going to continue to create attractive M&A targets.

But, I think the consolidation wave that preceded this Legaltech is evidence of market maturation.  There will always be innovation, even today, even in this LegalTech, you still see folks that are coming up with interesting ways to spin technologies with existing underlying engines.  Now it may not be “discontinuous, next big thing innovation”, but there is a constant, steady stream of innovation all around us exemplified by providers at this very show.  For example, analytics engines have been around for a while, half-a-dozen years even, but now you see them presented and integrated into meaningful workflows that are pragmatically useful to attorneys – better than in the past.    So, I think you’ll continue to see refinement of technology and refinement of workflows and a focus on meaningful, useful exposure of those technologies to attorneys.   So the market should expect that providers will continue to do interesting things, but those things may not be considered big and splashy and “next big” level of innovation.

Going back to your question in terms of consolidation, as markets mature, it’s naturally going to happen.  Investors, at some point in time, will want to realize return and that often happens through a sale.  I also think that there are some macro trends in the market that are fueling this trend.   In fact, there is actually an article in LegalTech News (the printed magazine) called Shark Bait by Zach Warren that is very much about this topic.

We’re continuing see evolution of eDiscovery into a true global industry.  Multinationals have global operations, they have data stores around the world in disparate systems, that originated from within smaller acquired companies.  So there are these pockets of data that the global entity really is unfamiliar with.  Then when matter sparks, the legal team – who is the least aware of these data stores – have to get their data from data stores in Serbia or Singapore.  If those legal teams have a mid-market eDiscovery services provider that is US-centric, well, that poses challenges.  We are seeing more cross-border matters, and more data collected from data stores outside the US – and as that trend continues, that will fuel the need for service providers that can support that global reach.

At Consilio, we made that leap to being a truly global eDiscovery services provider earlier than most folks did.  We were doing this back in 2006 and 2007.  We made our own missteps as you would expect of all companies doing so, but we persevered and became a truly global (in fact, by some measures more global than domestic) eDiscovery provider.  That made us very attractive for investment.  It’s one of the reasons that Shamrock Capital invested in Consilio and it’s a similar situation to what is fueling some of these eDiscovery acquisitions happening today.  Multinationals need global reach and they also need depth of bench – they need both.  Those providers that have both will be successful.

One trend that I’ve observed is an increased focus on automation and considerable growth of, and investment in, eDiscovery automation providers.  What are your thoughts about that trend?

We have to think about the eDiscovery technology market in subsectors or subcomponents.  Consider that eDiscovery is a very different game for a 175 custodian, six year collection out of systems that originate in Japan or Belgium than it is for a mid-sized law firm that generally focuses on employment law with one or two local custodians over a six month period.  These are very different things.

Those who aren’t serial litigants, and are focusing on more small-scale matters don’t always necessarily want to put those matters into Relativity.  They don’t want to have to go through an elongated processing step.  They just have a PST from somebody in the organization and they just want to look at those documents and apply a couple of tags.  So, on the one hand, you’re seeing automation from folks like Everlaw or CloudNine that allow for the “automation” of just dragging a PST folder into a web app and the files unpack automatically and the metadata is created, with simple point-click-go tagging.  That need exists and I think there’s a model now (and I’ve heard it a couple of times this week alone) where attorneys have said “I like self-service”.  Up to a point.  In cases where that’s a preferred flow leveraging automation, the attorney may have a need to graduate to Relativity or some other more mature platform with project managers who will provide value and guidance and best practices – but there is a cost to that.

I believe that there is a long-term trend in the market toward self-service.  That means that providers must and will continue to refine their user experiences and software in a way they were not three to five years ago.  I think it’s a responsibility of technology creators and innovators to meet the market where it is and to bring it forward and I think automation is a big, big part of that.

Let me also add that even at the large-scale end of the market, typically with companies that are used to a routine frequency of matters, there is a need for automation.  Along these lines, one of our strategic clients stopped me during our discussion about technology and said “tell me about automation in your platform”.  This is a client that has total eDiscovery spend well north of $100 million per year.  And, even in that scenario, she was interested in automation.  The reason is that these large scale investigations get very complex.  One of our most complex matters, we actually have over 3,200 discrete assignment batches within a single security group in a project that, itself, has five different security groups.  When you have 3,200 assignments, how do you keep track of all that?  Well that needs to be visualized, and the workflow needs to be automated – especially when you have project managers that are billing north of $100 US per hour who would otherwise be performing these tasks.  These clients need self-service for the large-scale matters just like clients do for the smaller-scale matters.  So there’s a drive toward automation at all levels of the spectrum.

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

Our story is pretty simple at LegalTech this year.  We’ve brought together not just two companies, but three companies, with the inclusion of Proven Legal Technologies – a well respected eDisclosure services and litigation support company in the UK.  We’ve brought together these fantastically experienced pieces, but we’ve done so in a way that’s so complementary.  I’m not sure that I’ve ever seen its equal in my years, not only in this industry, but in other industries where I’ve worked.

If you asked Huron Legal before the acquisition who their target client is, they would say it’s the Fortune 2000 multinational corporation with global operations with some sort of investment already made in their own in-house eDiscovery capabilities.  From Consilio, you would have heard pretty much the same answer.  You would also have heard the same answer on the law firm side – that we tend to partner with AmLaw 200 law firms that have some level of global operations and tend to get involved in global investigations and large-scale litigation.  On the surface, you would probably say that these two organizations probably have a tremendous amount of overlap.  But, now that we’ve put the pieces on the table side-by-side, it’s phenomenal how tremendously complementary they are and how they don’t overlap.  When you look on a client basis, there are a very small handful of our clients that are actually shared and even those that are shared tend to be law firms with a different practice area, so even those aren’t completely shared.  Less than five percent of our total client base actually overlapped, which is phenomenal.

When you look at capabilities where Huron Legal was incredibly strong – Relativity hosting, Nuix processing, Brainspace analytics and an incredible depth of bench here in the US, but not outside of the US – it married perfectly with Consilio’s tremendous global capability that dates back to 2006 where we made investments in APAC and Europe.  So, there was also a tremendous complementary nature to our businesses that way.  Consilio also has a deep history of doing its own innovation.  And the things that we’ve done around audio review and chat transcript review (which seems to be a huge trend in the market right now).  There are communication types that need to be evaluated and not necessarily in the same manner as email.  This type of innovation engine is complementary to the whole as well.  As you go down the list, you see that this is pretty much a marriage of strengths.

What has been really interesting to us (and I think is indicative of our market feedback), when we look at what is entering our pipeline, it is exactly the type of matters in which we want to get involved – large-scale litigation, complex matters, cross-border or non-US investigations.  It is the outsourced approach where our clients want us to handle processing through production for them, and help them leverage analytics when they’re not comfortable doing it themselves.  These are the types of matters where we are being called to service and it’s hugely gratifying to know that the thesis of the case was right – to bring these companies and technologies and depth of bench together.  It’s what we want to be known for.

Thanks, Pete, for participating in the interview!

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

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. 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.

Confidence in eDiscovery Business is Up and Here is the Most Comprehensive LTNY Review: eDiscovery Trends

This is a rare two-topic day, but both of these topics are interesting enough that I decided neither could wait until next Tuesday (which is the next day that we’re not publishing a thought leader interview)…

First, you may recall that, last month, we discussed Rob Robinson’s eDiscovery Business Confidence Survey, which he was conducting through the end of February.  The survey has now concluded and Rob has published the results on his terrific Complex Discovery site.  There were 80 total respondents to the survey, which is a reasonably good number, especially for a two-week survey.  Here are some notable results:

  • Providers Were the Majority Respondents: Of the types of respondents, 55 out of 80 were either Software and/or Services Provider (37.5%) or Consultancy (31.3%) for a total of 68.8% of respondents as some sort of outsourced provider. Law firm respondents were next with 20%.
  • Most Respondents Consider Business to Be Good: Over half (58.8%, to be exact) of respondents rated the current general business conditions for eDiscovery in their segment to be good, with only 10% rating business conditions as bad.
  • Almost Everyone Expects eDiscovery Business to be as Good or Better Six Months From Now: Almost all respondents (93.7%) expect business conditions will be in their segment to be the same or better six months from now, with 60% of respondents expecting higher revenue six months from now and 45% of respondents expecting higher profits six months from now.
  • Budgetary Constraints and Data Security are Expected to be Most Impact eDiscovery Business: Perhaps the most interesting question is the one where Rob asked which issue that you feel will most impact the business of eDiscovery over the next six months. Budgetary Constraints (22.5%) led the way, closely followed by Data Security (21.3%), Increasing Volumes of Data (20%), Lack of Personnel (16.2%), Increasing Types of Data (13.8%) and finally, Inadequate Technology (6.3%).  I was surprised how even the distribution was across most of the categories.  The graph below illustrates the distribution.

Rob has published the results on his site here, which shows responses to additional questions not referenced here.  Check it out.

One of the great things about LegalTech New York (LTNY) is the ability to, not only to catch up with familiar faces, but also to meet new thought leaders in the industry.  One of those that I met this year for the first time was Chris Dale, director of the UK-based eDisclosure Information Project, whose thought leader interview will be published tomorrow.

Another was Andrew Haslam, who has a terrific UK-based (it was my year to meet Brits!) site called Allvision, where he publishes various posts, including an annual Buyer’s Guide to eDisclosure Systems and a report from LTNY every year.  This year’s report –titled LegalTech 2016 – Cloud, Consolidation and Cybersecurity (which is comprehensive and succinct at the same time) checks in at 18 pages and is well worth the read.  Here is the link to the report.

Andrew clearly gets around during the show, attending sessions and also meeting with lots of companies during the show.  In his report, he obtained quotes from and reported meetings with several of them, including Litsavant, Yerra Solutions, Control Risk, TRU Staffing Partners, Consilio, kCura, Ricoh, Zapproved, Venio Systems, FTI, QuisLex, TCDI, QDiscovery, Xact Data Discovery, Opus 2 International, Catalyst, UnitedLex, Guidance, IPro, and (last, but not least) CloudNine.  It was nice to meet Andrew and nice to see our write-up as well as to see quotes from us about the show.  As for plans for expansion to the UK (which I love and spent part of my honeymoon in 2014), my motto is “never say never!”  Of course, I will be happy to volunteer to set that up.  :o)

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Craig Ball of Craig D. Ball, P.C.: eDiscovery Trends

This is the fifth of the 2016 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year to get their observations regarding trends at the show and generally within the eDiscovery industry.  Unlike previous years, some of the questions posed to each thought leader were tailored to their position in the industry, so we have dispensed with the standard questions we normally ask all thought leaders.

Today’s thought leader is Craig Ball.  A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs in the United States and abroad, having delivered over 1,700 presentations and papers.  Craig’s articles on forensic technology and electronic discovery frequently appear in the national media and he teaches E-Discovery and Digital Evidence at the University of Texas School of Law.  He currently blogs on eDiscovery topics at ballinyourcourt.com.

What are your general observations emerging eDiscovery trends for 2016?

{Interviewed Craig after LTNY, as he did not make it to the show this year}

I skipped LegalTech this year – first time in twenty years – because Mardi Gras was early this year, I chose the circus on the Mississippi over the one on the Hudson.  Still, I got lots of feedback from those who attended LTNY while I was catching beads at 29 parades.  I wanted to see if I’d missed anything of note.  The only trend that emerged was lack of change in the focus of the show.  LTNY is still dominated by electronic discovery as it has been for almost a decade; but, there are continued signs of consolidation within the industry as organizations fold into one another.

Not surprisingly, we don’t see outright failure in this space.  Companies don’t disappear, but instead reach a point where whatever is left is absorbed by a national brand for its equipment or core technology.  So, we’ve seen steady consolidation within the industry, and that trend continues.  As the broader economy goes, so goes litigation and discovery.

Another trend that I’ve observed is an increased focus on eDiscovery automation and considerable growth of, and investment in, eDiscovery automation providers.  What are your thoughts about that trend?

The term “automation” has gotten some play lately.  I’m trying to figure out what each usage means because it’s still in the buzzword phase as marketers deploy the term in the never-ending struggle to differentiate their products. Automated workflows are key to Cloud SaaS offerings.  Hosted systems must be capable of programmatic routines to ingest and process data, effecting ready hand-off of data across processing and review.    An automated SaaS offering should be sufficiently autonomous to facilitate workflow across multiple stages of the EDRM with little manual intervention.

Assuming “automation” means  we can put something into the hopper and it will emerge ready for review or production in forms we were expecting, then automation is a necessary precursor to growth and cost effectiveness in hosted products.  That’s positive for consumers if it means price reductions and commoditization of features of electronic discovery.  It may not be so great for the vendor community unless they can scale up the volume.

In the case Nuvasive v. Madsen Medical, the Court recently vacated an adverse inference instruction sanction previously applied against the plaintiff because of the amendment to Rule 37(e).  Do you see that as a trend for other cases and do you expect that other parties that have been sanctioned will file motions to have their sanctions re-considered?

I don’t think it signals a trend. There are relatively few cases that fall into the transition point.  I don’t expect to see a rash of sanctions being reconsidered by virtue of the latest amendments.

Nuvasive is interesting because it goes to the issue of whether it’s fundamentally fair to impose the new Rules retroactively.  The Rules speak to that issue and make it clear that they can be applied retroactively as long as they operate fairly.  The amendments to the Rules make clear that serious sanctions (such as adverse inference instructions) require proof of an intent to deprive a discovering party of the particular information.  Nuvasive involved serious sanctions, so I can see why the Court might want to weigh amended Rule 37(e).  Still, I’m not sure why the parties and the Court failed to anticipate the Rule changes, as the amendment process was pretty far along in July 2015, when sanctions were imposed.  The tenor of the Court’s opinion in reversing himself was that it was just ‘bad luck’ that the amended rules kicked in when they did.

I think that we will see judicial action once termed “sanctions” couched in less-loaded terms.  After Rule 37(e), Courts will distinguish punitive responses from remedial actions designed to rectify unwarranted failure to preserve relevant information. New Rule 37(e) won’t tie the hands of jurists determined to rectify discovery abuse.  We’re already seeing push back from jurists unwilling to surrender discretionary authority when the facts demand fairness.   As well, we’ve seen at least one case where the Court reversed himself, citing 37(e) as the basis for reconsideration.  As is apparent in Nuvasive and in Judge Francis’ recent order in Cat 3, the Rules are tools, and they can be turned this way and that in determined hands.

Sanctions aren’t going away, and that’s a good thing.  We are mired in the last century when it comes to discovery.  Lawyers need direction, and sanctions opinions supply guidance.  There is little in the way of a “carrot” for eDiscovery – all we have is the “stick.”  If courts fail to sanction incompetence and abuse, then lawyers won’t pursue competence, and parties will continue to “twiddle their thumbs” until evidence disappears.  Few lawyers maliciously hide damaging evidence; but, they’re expert at rationalizing it away or, in the case of e-discovery, content to let their ignorance serve as their armor.  “What you don’t know, can’t hurt me,” is their credo.

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

I’m going back to basics.  Last year was about trying to develop a core curriculum and re-engineer my teaching to make it an engaging foundation in information technology for lawyers.  I hope 2016 will bring an increased ability to push out more information and reach more people.  I’m doing a project for the DC Bar where I will be providing evening CLE programs by live semi-weekly webcasts.  Small groups of motivated people are my sweet spot.  As always, I’m looking forward to this year’s Georgetown University Law School eDiscovery Training Academy, during the first full week in June.  Both the faculty and the students are delightful.  I’ve come to recognize that anyone willing to work at it can learn the technology they need to be formidable in e-discovery in just three solid days.  That’s less time than most of us spend at Starbucks each year.

I’m using the California ethics decision (which we covered here when it was still a Proposed Opinion) as a jumping off point for the concept of core competencies for lawyers.  As you know, the State Bar of California issued an advisory opinion last year identifying nine areas in which lawyers must either be competent in order to accept a case involving eDiscovery or must associate competent counsel or decline representation. That courageous opinion serves as an effective touchstone for talking to lawyers– not just in California, but all over– about the skills they must embrace to be competent to accept a case involving eDiscovery.

There are virtually no cases without electronic evidence, only cases where the lawyers choose to ignore it.  And there is so much more coming!  Never in history have advocates had so much powerful evidence at their disposal, and never have they been so content to look away.  Three days per advocate could change all that—a long weekend.  But, finding the time is only half the battle.  The other half is finding the course that doesn’t give short shrift to the “e” in e-discovery.

Candidly, 2016 is also about taking some time for me.  I’ve been doing 50 to 70 presentations a year for twenty years.  I average about four flights a week; so, I’m hoping to cut all that down by half.  I’m saying “no” more and stopping to smell the roses.  That’s why I’ve gotten a second home in New Orleans, and will spend more time reading, thinking and working on fewer projects with greater focus.  Every teacher needs a sabbatical, right?

Thanks, Craig, for participating in the interview!

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

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. 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.

Tom O’Connor of Advanced Discovery: eDiscovery Trends

This is the fourth of the 2016 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year to get their observations regarding trends at the show and generally within the eDiscovery industry.  Unlike previous years, some of the questions posed to each thought leader were tailored to their position in the industry, so we have dispensed with the standard questions we normally ask all thought leaders.

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

What are your general observations about LTNY this year and about emerging eDiscovery trends overall?

{Interviewed the first morning of LTNY, so the focus of the question to Tom was more about his expectations for the show and also about general industry trends}.

When I got here to the show, I bounced around a bit and talked to several people here and I think there’s a lot of uncertainty in people’s minds.  I hate to say that we’re at a crossroads, but a couple of different things are going on in technology right now and I think people are worried that they made the right decision.  I’m talking about both vendors making the right technology decision on where to take their company and clients making the right choice.

I was at a presentation given by the CEO of a major company in our space recently and he was asked “what keeps you up at night?”  He responded that what he was most worried about was whether his company was flexible enough to make quick changes and adaptations in the market, because if you can’t do that, you can lose business really quickly.  You can sink in 18 months no matter what your market share is.  So, as a vendor, you have to be thinking “can I see something and react and respond?”  I think that goes across the board in every segment of the EDRM.  Technology changes so fast and we’re a profession that works by looking in the rearview mirror.  We work with precedent; we don’t want to be that first person out there trying something new.  So, there’s a lot of uncertainty.

Related to that, I think that tension between corporate clients and big law firms is becoming intensified.  Once again, it revolves around questions such as “am I getting the best technology?”, “am I getting the best ROI?”, “should I be bringing eDiscovery in house?”.  I’m seeing a lot of corporations going to master services agreements (MSAs).  That’s something that we do a lot of at Advanced Discovery.  It’s almost like an in-between state where corporations are deciding not to bring eDiscovery fully in-house, but not giving it to the law firms either and they’re saying to companies like ours “why don’t you run it for us?”  If there’s a trend right now, I would say that’s it, especially based on discussions that I had with other show attendees last night.

I always seem to ask you about the state of attorneys and their knowledge (or, rather, their lack thereof) about eDiscovery.  Do you think there has been any positive change in the past year with regard to attorneys’ knowledge about eDiscovery?

A couple of months ago, I asked a well-known judge in the field that question and he said that he’s seen minimal change.  I’ve seen some change, but I think the word I would use to describe it is “glacial”.  There has been some movement.  We’re seeing many more law schools embrace technology training of some sort.  Unfortunately, many of those are not full-time faculty, they are either adjunct faculty or CLE, like the Georgetown eDiscovery Training Academy that I’m part of – that’s actually run by their CLE department, it’s not part of their core curriculum.  Judge Facciola teaches two courses at the school full time and Craig Ball is teaching one at the University of Texas Law School.  But, overall, I haven’t seen schools really embrace the idea that this should be part of the curriculum.  Until that happens, I think the change will continue to be slow.

A great case in point: I think Craig and I did one our standup routine videos for the eDiscovery Channel, where we talked about the California Bar’s recent Formal Opinion (No. 2015-193, which we covered here when it was still a Proposed Opinion) and they listed nine things you need to be able to know how to do.  But, are they going to train people on this?  Who is going to be responsible for educating people on this new duty that they’ve imposed?  Now, it’s only early February, so maybe the Bar in California is going to come up with some sort of program.  But, that’s the quandary that I see – “you have this duty, good luck with that!”

Of course, nobody has the resources to provide that for a million lawyers.  There are some excellent resources out there, like the Georgetown Academy, but we cap that at about sixty students.  Do the math – once a year, sixty students.  Mike Arkfeld has a great course at Arizona State that he has been developing – let’s say, maybe, a couple of hundred people show up there and half of them probably already know everything.  It’s a little bit here and a little bit here, but there hasn’t been a sea change.  I don’t mean to point the finger at the law schools, but it’s just that they would be the most obvious to implement change, along with the bar associations.  But, nobody wants to own responsibility.

I think the third thing is that I’m surprised that there hasn’t been a big commercial attempt at this.  That somebody like a Thomson Reuters or a LexisNexis hasn’t said “we’re going to offer a course”.  It’s almost like everyone is afraid – no one wants to say they’re offering certifications because they’re not willing to take the risk that something might “go south”.  It’s the quandary that ACEDS has had from day one – how to you say that someone is certified when, in many states, it’s considered the providence of the bar association to say that you’re a specialist in a field.  There was a Federal court decision in Florida, I think back in September or October, where a firm who had people with 20+ years of experience indicated that they were specialists and the Florida Bar challenged their right to call themselves specialists without taking the Bar exam to designate specialists.  The firm sued and the court agreed that they had every right to call themselves specialists if they had that much experience.  After that, the bar association backed off and decided not to go after anybody else who does that.  Of course, there’s no standard as to who can call themselves an expert or specialist – is it 10 years or 15 years?  Who knows?  But, it seems to me that’s a door opener that benefits organizations like ACEDS that provide training.

So, in that regard, maybe this year things will open up.  But, it’s like pulling teeth.  Actually, it’s worse than that, it’s like pulling teeth without Novocain.  It’s frustrating.  I remember going around with Browning Marean to law schools 14 or 15 years ago and trying to get education programs going back then, so people have been trying for a long time.  It’s just frustrating.  I understand that people don’t go to law school to learn technology and their wish is fulfilled.  Unless they seek out one of these specialty courses, they don’t get it.

Part of the issue is that we’re faced with bureaucracy – we’ve got state bar associations and the ABA.  You’d think that maybe somebody like the ABA would take the lead on it, but that hasn’t happened.  Without naming names, there are a couple of bar associations where just getting a CLE course approved is like joining the Navy – there are ten page forms to fill out and certify.  Thankfully, not all states are like that.  I do a CLE 3 or 4 times a year for the Louisiana Bar on the basics of technology where we don’t even focus so much on eDiscovery as opposed to just helping them understand how a computer works – teaching them things like what a “bit” is, what a “byte” is, what’s a “temp file”, what is “slack space”, how data is actually stored on the computer.  We’re not trying to give them a PhD in Computer Science in this course, we’re just trying to teach them some basic concepts.  If you want to take on a medical malpractice case, you need to know the difference between an aorta and a fibula.  That’s the level we’re trying to teach – basic stuff.

In the meantime, we’re still encountering people who don’t understand things like why metadata is important and still get in fights over productions about that where they propose to give us just TIFF and text files and we say “no, you’re not”.  There was an appellate decision recently in Texas where Craig was the expert and the producing party claimed it was actually more expensive to produce native files.  What is your native file system, stone tablets?  How can you say that with a straight face?  Of course, if they already have the documents in a Relativity database, maybe they think it’s less expensive than producing native files, because they can simply perform an export.  But, the native files must still be there in the database, the client probably provided them to you and they can be produced.

Advanced Discovery just acquired Millnet, a London-based company.  We’ve been having meetings, trying to do the “vulcan mind-meld” and we were talking about this and they were laughing and I didn’t understand why.  They said that over in the UK, everybody produces native files.  I said “what about Bates numbers” and they started laughing again.  They said that nobody cares about Bates numbers over there.  Of course, it’s a different system over there, less adversarial, and loser pays, but it was like “wow, somebody understands the best way to do this”.  They were aghast to hear that it’s commonplace here.

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

It’s been literally a year now (since last year’s show) since I’ve been with Advanced Discovery.  I’m doing a lot of CLE, a lot of “lunch and learns” and a lot of client consulting – all about these various issues that you and I have been discussing.  The company has grown a great deal, so I’m jumping around like a “cat on a hot tin roof” (to use a New Orleans analogy) as we have offices from DC to all over California, just purchased a small service bureau in Pittsburgh and have a couple more on the horizon.  As one of my colleague said this morning, “Tom is in New York preaching the gospel of ESI”.  I also write a weekly blog for Advanced Discovery and put it up on my personal blog as well.  So, I’ve been doing a lot of education work.

Also, about once a month or so, Craig Ball and I amuse each other on the eDiscovery Channel on Youtube.  Craig has stepped in where Browning was.  We think we’re the funniest guys in eDiscovery.  Occasionally, we’ll get somebody else to sit down with us as well.

I miss Browning, especially when I come to a show like this.  He was just a genuinely nice guy.  He and I were opposites in so many ways.  Though we were both from the Boston area, he was what they call a “Boston Brahmin”, a “yankee”, a protestant and a partner at a huge firm. I’m South Shore, Irish and a blue-collar worker.  He was hard-core Republican and I’m a hard-core Democrat.  Despite all that, we got along famously.  I think much of that related to our sense of humor, but he also reminded me of the lawyers I knew when I was growing up that made me want to be a lawyer, where the profession was much more collegial.  He became Of Counsel for the firm and I asked him “don’t you miss having a clientele?” and he said “I miss going to court, I miss trials”.  But, he added, “the last ten years, the majority of my clients only wanted a ‘hammer’ – they wanted me to beat the crap out of the opposition, they weren’t concerned about getting a solution.”  Despite that, Browning never lost that collegiality.  I’ve never known anyone who had a bad word to say about him – he was universally liked and respected, even when he didn’t agree with you, he could disagree with you in a very respectful way.

Thanks, Tom, for participating in the interview!

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

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.

Brad Jenkins of CloudNine: eDiscovery Trends

This is the first of the 2016 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year to get their observations regarding trends at the show and generally within the eDiscovery industry.  Unlike previous years, some of the questions posed to each thought leader were tailored to their position in the industry, so we have dispensed with the standard questions we normally ask all thought leaders.

Today’s thought leader is Brad Jenkins of CloudNine™.  Brad has over 20 years of experience as an entrepreneur, as well as 15 years leading customer focused companies in the litigation technology arena. Brad also has authored several articles on document management and litigation support issues, and has appeared as a speaker before national audiences on document management practices and solutions.  He’s also my boss!  :o)

What are your general observations about LTNY this year and how it compared to other LTNY shows that you have attended?

Again this year, LTNY seemed reasonably well attended.  Thankfully, we didn’t have the weather and travel issues that we had the past few years, so that probably helped boost attendance.  And, the Hilton Lobby Lounge was back this year, so that provided an additional location to meet, though most of our meetings were in our suite.  Though I was really busy and didn’t get much chance to attend sessions, I understand that they were very good as always.  I did notice a drop in the number of exhibitors again this year and the exhibit hall did seem to be less crowded.  One colleague of mine who exhibited indicated that the number of leads he received at the show dropped about 30 percent from last year, so that’s consistent with my own observations and those of my colleagues.

For me, LTNY has become as much about the meetings with colleagues and business partners as it is about the show itself.  CloudNine had meetings practically booked throughout the show, with various people including industry analysts, partners and potential partners and clients and prospects.  Because it is the biggest show of the year, most people in the industry attend, so it’s an ideal opportunity to meet face to face and move business relationships along further.  Sometimes, there is just no substitute for in-person meetings to further business relationships and to communicate your message to other business colleagues.

What about general industry trends?  Are there any notable trends that you’ve observed?

Certainly one trend that I have noticed, as others have certainly noticed, is the accelerated consolidation within our industry within the provider community and the growth of investment of outside venture capital firms in our industry.  Just in the past couple of months, we have seen Huron Legal acquired by Consilio (which received a major investment from Shamrock Capital Advisors a few months before that), Millnet acquired by Advanced Discovery, Orange Legal acquired by Xact Data Discovery and Kiersted Systems acquired by OmniVere.  Rob Robinson does a terrific job of tracking mergers, acquisitions and investments in our industry and, according to his list, there have been eleven significant acquisitions and investments in just the past three months!

Another noticeable trend in the industry is the clear trend toward automation within eDiscovery.  You wrote about it earlier this year and, like you, I believe that the age of automation is here.  Some have dismissed the term “automation” as a marketing term, but I can’t think of a better term to describe the transformation of tasks that used to require a high degree of manual intervention and supervision to a point where little, if any, human involvement is necessary.  We’ve seen it for years through automation of review with technology assisted review techniques such as clustering and predictive coding and we have begun to see use of some artificial intelligence techniques on the information governance side.  Now, we are seeing automation of the processing of data to get it into a review platform and cloud-based providers (including CloudNine) automating that process.

Having been in the legal technology industry for many years, I have really seen an evolution of technology offerings in the marketplace.  At the beginning, I saw applications that were originally developed for other purposes being adapted for eDiscovery and those solutions were incomplete.  As the market developed, there started to be applications that were specifically designed for eDiscovery and those solutions were an improvement, but they were designed for isolated processes, such as collection or processing or review, with no automation of tasks.  The next generation of solutions were designed for eDiscovery and designed for task integration, but still adapted for task automation – some of those are the most popular solutions in the market today.  The new solutions – the “fourth generation” technology offerings are not only designed for eDiscovery and designed for task integration, they’re designed for task automation as well.

Many people say that if you want to tell where an industry is heading, follow the money.  In the past several months, you’ve seen providers like Logikcull and Everlaw that emphasize automation receive significant capital investments and, just before LTNY, you saw Thomson Reuters announce a new platform where automated processing is a key component.  It’s clear that big money is being invested in the growing automation sector of the industry.  You can get on the bus, or you can get run over by the bus.  As a provider that has been committed to simplified eDiscovery automation for several years now, CloudNine is on the bus and we feel that we have an excellent “seat” on that bus and are well positioned to help usher eDiscovery into the automation age.

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

Well, since I was just talking about fourth generation technology solutions, it seems appropriate to discuss how CloudNine has gotten to the point where we are in that evolution.  About 3 1/2 years ago at CloudNine, we looked at our legacy platform that had been in place since the early 2000s and was on version 14.  Our clients were happy with the platform overall, but we realized that if we were going to stay competitive as the market evolved, our legacy platform wasn’t going to be able to support those future needs.  So, we made the decision to almost completely start from scratch and re-develop our platform from the ground up, using the latest technology with an eye toward a truly simplified eDiscovery automation approach.  The platform that you see today via the user interface is just the tip of the iceberg of the overall solution – behind it is a series of workflows to accomplish various tasks.  For example, there are 34 distinct workflows (our CTO and co-founder Bill David calls them “cascading buckets“ that enable the workflows to scale) just in our Discovery Client application that enables clients to upload and process data into our CloudNine review platform.  This modularized approach of putting together re-usable workflows enables us to both scale and adapt as needed to meet changing client needs and positions us well for the future.

We feel that CloudNine is the leader in simplifying eDiscovery automation.  We do this through what we call the 4 S’s: Speed, Simplicity, Security and Services.  Clients, even brand new clients, can be up and running in five minutes (Speed) through their ability to sign up for their own account and upload and process their own data.  We recently had a brand new client who signed up for an account, uploaded and processed 27 GB of Outlook PST files (which amounted to over 300,000 emails and attachments) and culled out nearly two-thirds of the collection via HASH deduplication and irrelevant domain culling – all within 24 hours without ever having to speak to a CloudNine representative!  The ease of use (Simplicity) of the platform through the wizard-based client application for uploading data and a browser independent review module enables our clients to get up to speed with no more than an hour (or less) of training required.

Our approach to Security is unique as well – we operate within a protected cloud, not a public cloud, where the clients know that their data will be located on our servers in a Tier IV data center that is located 5 minutes from our offices.  This data center hosts data for nine of the top Fortune 20 corporations and was instrumental in us being selected over a year ago by a Fortune 150 corporation to host their data.  Finally, what makes us unique are the Services that we provide to support the software and automation – in addition to the software that we provide to help automate the eDiscovery process, we also provide managed services ranging from forensic collection to data conversion to technical advice and eDiscovery best practices and managed document review.  This enables our clients to rely on one provider for all of their services needs – as opposed to software-only providers that would have to outsource those services to a third party.

We believe that the combination of Speed, Simplicity, Security and Services enables CloudNine to provide the simplified eDiscovery automation approach that our clients want.  It’s an exciting time in our industry and CloudNine is excited to be forefront in its continued evolution, as we have been for the last 13 years!

Thanks, Brad, for participating in the interview!

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

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.

What Are the Biggest Challenges for Law Departments in 2016? This Report Has Some Answers: eDiscovery Trends

According to Consilio’s Law Department Benchmarking Report, a survey encompassing data from 119 company’s law departments ranging in revenue from 2 to 10 billion dollars which was released on Tuesday, over 50 percent of law departments find that increasing or changing regulatory requirements pose the biggest challenge in 2016.  That, and other, findings can be found in the report, which is now available.

The sixth annual survey aims to help general counsel (GCs) better understand the effectiveness of their operating processes and was conducted in partnership with The General Counsel Forum.  We covered last year’s survey here when it was issued by Huron Legal (which, as you probably know by now, was acquired by Consilio a couple of months ago).

As noted in Consilio’s press release announcement of the report, while 58 percent of law departments have an internal data-privacy program, just 21 percent take the same precautions with information shared externally when managing vendors. The lack of risk-assessment programs makes sensitive data vulnerable to hacking and other cyber threats.

“As security concerns become more commonplace, law departments are working to ensure proper data security measures are implemented to protect sensitive company information both internally and externally,” said Bret Baccus, managing director, Consilio. “We’re seeing more companies use objective, metrics-based measurements to assess outside counsel and other providers’ security capabilities. Those metrics are being used to select third-party vendors based on the risk level in sharing confidential information and data.”

Other highlights of the report include:

  • Spending continued to increase, although at a lower rate than the prior year – at 7 percent from 2014 to 2015 as compared to an increase of 2.2 percent from 2013 to 2014.
  • Law departments are becoming more sophisticated in spend management, with 67 percent of respondents using matter-level budgets and 74 percent having, or planning to implement, structured programs for conducting rate negotiations.
  • The top department initiative planned over the next three years was formalization of outside counsel performance review process (with 46 percent of respondents either already implementing or planning to implement within the next 2-3 years), followed by development of an enterprise information governance program (38 percent) and tracking of department metrics and performance indicators (36 percent).
  • As law departments look to effectively manage costs and workloads, many are more often outsourcing discovery work to non-law firm vendors. Over 75 percent of companies with over $10 billion in revenue reported using alternative service providers for document review and data processing/hosting, with 44 percent of companies between $2 and $10 billion reporting the same.
  • Discovery management programs are fairly common at the largest companies, but relatively few companies with revenue under $10 billion have them, even though for companies with any volume of litigation those programs can reduce risk by improving consistency and defensibility and save money by limiting the need to “reinvent the wheel” with each new case.

The highlights of the Law Department Benchmarking Report are available for download here.  For more information about the complete report, please contact Bret Baccus (bbaccus@consilio.com or 713‑222‑5910) or Jaime Woltjen (jwoltjen@consilio.com or 312-880-3737).

So, what do you think?  Are you surprised by any of these trends?  Please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

P.S. — Happy Birthday to my wife, Paige!  I love you honey!

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.

More Questions to Answer Before Selecting Your Next eDiscovery Platform: eDiscovery Best Practices

Yesterday, we covered the first four questions that you should ask when considering selection of an eDiscovery platform for a case or for your entire organization to use, as discussed in a recent article on Legaltech© News.  Today, we’ll cover the remaining four questions.

To recap: In Buying a New E-Discovery Platform? 8 Questions You Need to Ask First, the author (Zach Warren) reaches out to two prominent e-discovery attorneys: Gareth Evans of Gibson Dunn and John Rosenthal of Winston & Strawn, to get their takes on eight questions that firms should ask themselves before investing in an eDiscovery platform.  We’re covering them here and I’ll provide some of my own thoughts, as well.

Should I choose just one platform, or should I look at multiple to handle different parts of the process?

Rosenthal stated “No brainer – one platform – one process. Volume is the enemy. Only through using people, process and technology at each stage of the EDRM can you ultimately reduce the volume that is subject to review and, thus, the overall cost of the review.  By using one platform with a consistent tool set you have the ability to develop work flows to develop a consistent, repeatable and defensible process for attacking the volume.”  I would add that the age of eDiscovery automation is upon us and it’s no longer necessary (in most cases) to have a different platform for processing, review and production.  Choosing a single platform to handle the bulk of the eDiscovery workflow is easier than ever before.

What cost does the firm prefer, and what costs are actually present?

Rosenthal stated that “Cost is a deceptive term when it comes to e-discovery platforms because there are components to cost that may not be obvious in the vendor’s proposal”.  When it comes to software, the ability to predict costs has become more important as data volumes have made eDiscovery more expensive.  It’s important to understand whether the eDiscovery platform provider assesses charges for each user or limits the number of cases that are included, whether they charge for training and support and whether they offer options to even waive processing charges.  All of those charges make it more difficult to predict costs for the software, whether hosted or in-house.

How long is the contract for?

As the article notes, locking into a contract “can go one of two ways – it creates a partnership between the vendor and firm which leads to more specialized service, or it locks the firm into a contract while technological advances happen all around them.”  That’s assuming, of course, that your provider isn’t keeping up with those technological advances, which they may be.  If not, it may be an issue whether you’re locked into a contract or not (switching eDiscovery platforms always comes with challenges such as moving data and training users on the new platform).

Locking into a contract can also result in loyalty discounts for your firm’s commitment and it’s also a benefit to the provider because it enables their revenue to be more predictable from month to month.  It’s a true “win-win” for both parties.  But, locking into a contract is not for all firms, so it’s important to know whether you can opt for shorter term commitments or even a no-commitment, pay-as-you-go plan.

Where will the data reside?

Evans noted that in order to properly assess the firm’s capabilities, decision makers should engage a knowledgeable expert – either internally or externally if need be – to ask some key questions: “What will make more economic sense and data security sense? Is your data security robust enough to protect your clients’ data, or are you better off hosting it in the cloud with the security of a vendor?”

It’s not just eDiscovery cloud providers that are advocating cloud-based over in house solutions, law firms are beginning to do so as well.  And, it’s also important to note that not all cloud storage is the same.  Some providers use public cloud storage, such as Amazon AWS where the data could be located anywhere in the world, for their data storage while others use a protected cloud data center approach where the data resides on their servers in a known location.  How important is it for you to know where your data is located?

So, what do you think?  What questions did (or would) you ask in selecting your eDiscovery technology solution?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Questions to Answer Before Selecting Your Next eDiscovery Platform: eDiscovery Best Practices

Considering selection of an eDiscovery platform for a case or for your entire organization to use?  A recent article on Legaltech© News provides some useful questions to ask to help select the solution that best meets your needs.

In Buying a New E-Discovery Platform? 8 Questions You Need to Ask First, the author (Zach Warren) reaches out to two prominent e-discovery attorneys: Gareth Evans of Gibson Dunn and John Rosenthal of Winston & Strawn, to get their takes on eight questions that firms should ask themselves before investing in an eDiscovery platform.  We’ll cover them here and I’ll provide some of my own thoughts, as well.

What do your attorneys actually use?

In the article, Evans discussed polling his own attorneys – with something as simple as a SurveyMonkey poll – to determine what platforms they like and dislike and why.  That’s certainly important information to gather.  It has also been my experience that the more attorneys you have, the less likely they are to agree on a preferred platform, so it makes sense to get a sense of the features that are most important to them as well (which conveniently leads right into the next question).  :o)

How will people use the technology?

As the author notes, “it’s important to nail down how the attorneys are actually planning on using the platform”.  Do they require sophisticated analytics capabilities?  Or an easy to use platform that mostly requires baseline functionality.  Rosenthal also notes that much of the evaluation may be done by non-attorneys, so it’s important for those non-attorneys need to spend time to understand the objectives of the case team to select technology that enables the case team to expedite the review.

It’s also important to understand the role of each person using the platform and what their proficiency level is.  Will the firm be using an experienced in-house litigation support person or outside vendor to load data?  Or will attorneys want to manage that process themselves?  With automation tools available today, more attorneys are beginning to actually load their own data.

What are the platforms’ data analytics capabilities, and do we need them?

Both Evans and Rosenthal indicated that the latest and greatest analytics capabilities are often not needed; Evans noted that high-powered analytics could be “overkill” for most users, and Rosenthal noted that “For overwhelming majority of reviews, the most sophisticated analytics such as predictive coding will not be used”.  Some analytics capabilities can be useful in all cases (e.g., domain categorization, thread identification, near-duplicate identification, clustering, etc.) and others are only occasionally needed.  Evans noted that his firm “went with a more basic platform, with the opportunity to use a more robust platform as needed for those more familiar with the technology or as a larger case demands”.  In other words, don’t buy more technology than you need.

Can the firm’s preexisting technology handle the new platform?

Evans says that bringing the firm’s IT department into the process is important.  What if you’re considering a cloud-based eDiscovery solution?  Is it still important?  Absolutely.  At CloudNine, we once had a client that was experiencing all sorts of issues accessing our cloud-based review platform – as it turned out, they had a highly secured network environment that was rather restrictive in access of sites that weren’t “whitelisted” (i.e., registered to allow full access).  Once their IT department whitelisted our site, those issues disappeared immediately.  So, it’s always important, regardless of the type of solutions you’re considering.

Those are the first four questions; tomorrow, we will take a look at the remaining four.

So, what do you think?  What questions did (or would) you ask in selecting your eDiscovery technology solution?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

The Fourth Generation of eDiscovery Offerings is Upon Us as Well: eDiscovery Trends

If you read this blog regularly, you know that we’re big admirers of Rob Robinson’s Complex Discovery site, from his software and services “mashup” to his running 14+ year list of mergers, acquisitions and investments in the eDiscovery industry.  Now, Rob provides a generational breakdown of eDiscovery technology offerings, giving organizations out there useful information to differentiate offerings in the eDiscovery marketplace.

Last week, we noted that the age of eDiscovery automation is upon us.  This week, Rob undertakes providing “comparison frameworks to help eDiscovery practitioners systematically evaluate the technology in available offerings” in his two part article Considering Fourth Generation eDiscovery Technology Offerings: Two Approaches.  In true Netflix binge watching style, Rob gives you part one and part two at once.  :o)

So, what are the two approaches for comparing eDiscovery offerings?  Rob lays them out at the start, as follows:

“The first approach, based on Geoffrey Moore’s whole product concept, consists of taking into account all elements of a technology offering to help create a complete offering comparison.

The second approach, based on a generational model view of eDiscovery technology, helps individuals compare offerings’ value based on their capability, flexibility, delivery method, and security.”

Rob then goes on to discuss the elements of a complete technology offering, complete with easy to understand graphics that help explain that the complete technology offering should include.  I particularly like Figure 2, which illustrates the Complete Discovery Offering as including Enabling Elements, Complimentary Elements and Complimentary Services (in my opinion, any offering without accompanying services is not a complete solution).

Having discussed the complete technology offering, Rob then provides a generational model of eDiscovery classification, keeping in mind design, integration, and automation (there’s that word again!) attributes in comparing the different generations as follows:

Rob continues by pointing out generational differences in design focus, integration approach and automation approach.  And, all of that is covered in just the first part!  In part two, Rob asks a series of questions (that organizations should be asking) about the technology offering’s capabilities in addressing planning, preservation, preparation, review and sharing requirements as well as its flexibility in integrating and automating eDiscovery tasks, its pricing model and its security approach.  Rob then ties it all together with his Generational Model of eDiscovery Technology Offerings (which we show at the top of this post).

I’ve hit the highlights, but only by reading the article can you get the details.  I recommend that you check it out.

So, what do you think?  What factors do (or did) you consider in selecting your eDiscovery technology solution?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Two Cases Regarding Overtime Pay for Contract Attorneys with Mixed Results: eDiscovery Trends

Last July, we covered a case where a contract review attorney filed a lawsuit demanding overtime pay from law firm Skadden, Arps and legal staffing agency Tower Legal Solutions, alleging that the highly managed review work that he performed should not be considered the practice of law because he was not required to exercise any legal judgment.  That case and one other have concluded (pending appeal) with mixed results.

In the first case, the plaintiff, David Lola, on behalf of himself and all others similarly situated, filed the case as a Fair Labor Standards Act collective action against Skadden, Arps and Tower Legal Staffing.  He alleged that, beginning in April 2012, he worked for the defendants for fifteen months in North Carolina, working 45 to 55 hours per week and was paid $25 per hour for document review.

The defendants moved to dismiss the complaint, arguing (among other things) that Lola was engaged in the practice of law as defined by North Carolina law, and was therefore an exempt employee under FLSA.  The district court granted the motion, but the appellate court vacated the judgment of the district court and remanded the matter for further proceedings, stating that “we find that Lola adequately alleged in his complaint that he failed to exercise any legal judgment in performing his duties for Defendants”.

Last month, the parties settled their lawsuit for a fraction of their “maximum liquidated damages,” according to a letter the plaintiff’s attorney (D. Maimon Kirschenbaum) wrote to the judge.  Tower paid $75,000 according to a settlement agreement that was attached to the letter, filed in U.S. District Court in Manhattan last month.  So, the plaintiffs received at least some compensation in this case.

In the other case, a Federal judge ruled that William Henig, a lawyer doing document review work for Quinn Emanuel Urquhart & Sullivan (and represented by the same plaintiff’s attorney – Kirschenbaum – as the Lola case) wasn’t entitled to overtime pay because he was using legal judgment.

Henig had claimed he did not exercise legal judgment while reviewing about 13,000 documents for about two months in 2012 (making $35 an hour) while working as a temporary contract lawyer for Quinn Emanuel to determine relevance to a discovery request.  In making his ruling, Southern District Judge Ronnie Abrams stated “Not all of [mass document review] is law at its grandest but all of it is the practice of law. Mr. Henig was engaged in that practice.”  We’ll see if Henig chooses to appeal and has any success (like Lola did).  As for plaintiff’s attorney Kirschenbaum, you win some, you lose some… :o)

So, what do you think?  Are document reviewers practicing law?  If not, should they be entitled to overtime pay?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.