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Want to Immerse Yourself in eDiscovery Knowledge? There’s Still Time – eDiscovery Best Practices

 

One of our favorite blogs is the Ball in Your Court blog, by Craig Ball, a perennial thought leader interviewee on this blog.  While catching up on his latest couple of posts, I realized that it’s almost time for the Georgetown E-Discovery Training Academy.  If you’re looking for an in-depth program that not only gives you a “total immersion in the subject of eDiscovery”, but also satisfies much of your CLE requirements for the year, this program may be for you!

Georgetown Law's eDiscovery Training Academy will be held on June 1 thru June 6 this year and has been designed by experts to be a challenging experience leading to a comprehensive understanding of the discipline.  In addition to Craig, the faculty includes such noted experts as Maura Grossman, Tom O’Connor, and Mark Sidoti. Magistrate Judge John M. Facciola will also be there to provide additional judicial and pragmatic guidance.  The program provides up to 32.4 CLE credit hours (including up to 1.2 hours of ethics hours).  Topics and workshops include:

  • Meet and Confer Demonstrations, Team Meeting, Coaching Sessions and a Mock 26(f) Conference
  • Introduction to Electronically Stored Information (ESI)
  • Forms of Production
  • Mail Systems, Backup Systems, and Databases
  • Technology-Assisted Review and Enhanced Search
  • The Courts and Predictive Coding: Where Are They and Where They Are Going
  • Preservation
  • The Collections Process
  • Sanctions
  • Ethics
  • Evidence: Authentication and Admissibility
  • eDiscovery: Small Cases and Small Budgets
  • Judicial Perspectives from Judge Facciola throughout the week

With regard to how this year’s Georgetown Academy differs from past years, Craig noted to me that “The level of daily interaction with Judge Facciola will be unprecedented.  We are also calling more on other esteemed faculty in 2014, especially Maura Grossman and Mark Sidotti.  We have more judges involved than ever before and our team coaching staff is top notch and playing a larger role through the week.  The upshot is that attendees will be getting much more daily interaction with thought leaders and each other, with less burdens placed upon them in terms of reading.”

The full prospectus PDF is available here.  It includes a registration form, or you can also register online here.  Registration is $3,500 for the week long program ($3,000 if you’re a Georgetown Law alumnus and $2,500 for government employees).  Per Craig’s blog, you can use the code EDTAREFERRAL when registering and take $300.00 off the price.  Even better for a week that should be highly educational and also highly entertaining and cover a large portion of your CLE requirements for the year.

So, what do you think? Are you looking for a chance to quickly develop your knowledge of technology and electronic discovery? 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

300,000 Visits on eDiscovery Daily! – eDiscovery Milestones

While we haven’t served over 300 billion burgers like McDonald’s, we have provided something to digest each business day for over 43 months.  We’re proud to announce that on Friday, eDiscovery Daily reached the 300,000 visit milestone!  It took us a little over 21 months to reach 100,000 visits and just over 22 months to triple that to 300,000!  On to 500,000!

When we reach key milestones, we like to take a look back at some of the recent stories we’ve covered, so, in case you missed them, here are some recent eDiscovery items of interest from the past six weeks.

After 2,354 Public Comments, One Major Change to the Proposed Federal Rules: By the February 15 deadline for the comment period, no less than 2,354 public comments had been filed regarding the proposed Federal Rules amendments.  Much of the controversy related to Rule 37(e)(1)(B), which included a hotly debated amendment that the court may impose sanctions or order an adverse jury instruction, but only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith,” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.  Since then, Rule 37(e) has been modified, not just once, but twice.

Government Attorneys Have eDiscovery Issues Too: From a confidence standpoint, 73% of respondents feel as confident or more confident in their ability to manage eDiscovery in their cases.  But, 84% of respondents feel somewhat or not at all effective in their agency’s ability to deal with the challenges of eDiscovery and 80% of respondents feel somewhat or not at all confident that if challenged their agency could demonstrate that their ESI was “accurate, accessible, complete and trustworthy.  These and other survey findings are available here.

Cloud Security Fears Diminish With Experience: According to a recent survey of 1,068 companies conducted by RightScale, Inc., concern about cloud security diminish as users gain more experience using cloud-based services.  Learn more about organizations’ cloud habits here.

Daughter’s Facebook Post Voids $80,000 Settlement: As reported a few weeks ago on CNN, the former head of a private preparatory school in Miami lost out an $80,000 discrimination settlement after his daughter boasted about it on Facebook.  That’s why it’s important to think before you hit send.  Even if you’re still in grade school.

New California Proposed Opinion Requires eDiscovery Competence: If a new proposed opinion in California is adopted, attorneys in that state had better be sufficiently skilled in eDiscovery, hire technical consultants or competent counsel that is sufficiently skilled, or decline representation in cases where eDiscovery is required.

Predictive Analytics: It’s Not Just for Review Anymore: One of the most frequently discussed trends in this year’s annual thought leader interviews that we conducted was the application of analytics (including predictive analytics) to Information Governance.  A recent report published in the Richmond Journal of Law & Technology (and discussed here) addresses how analytics can be used to optimize Information Governance.

How Do You Dispose of “Digital Debris”? EDRM Has Answers:  Those answers can be found in a new white paper discussed here.

Also, hackers took Typepad, our platform for hosting the blog, down for a bit.  But, we’re back and better than ever!

Want to get to know some of your litigation support colleagues better?  Leave it to Jane Gennarelli, who has provided profiles here, here, here, here, here and here.

We’ve also had 11 posts about case law, just in the last six weeks (and 296 overall!).  Here is a link to our case law posts.

Every post we have ever published is still available, so the blog has become quite a knowledge base over the last 43+ months.  Sometime this summer, we will publish our 1,000th post!

On behalf of everyone at CloudNine Discovery who has worked on the blog and other publications that have picked up and either linked to or republished our posts, thanks to all of you!  We really appreciate the support!  Now, on to the next topic.  🙂

And, 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Litigation Support Professionals Are Certifiable, Too – eDiscovery Trends

We’ve covered programs from The Organization of Legal Professionals (OLP) in the past, including this prior post regarding their certification program for eDiscovery project management.  Now, the OLP has announced that it has finalized preparations for a new Litigation Support Certification Exam.

As announced on their site, the Certified Litigation Support Certification Exam (CLSP®), developed in conjunction with Pearson Learning Solutions, a $7 billion company that specializes in certification examinations for a wide variety of industries, incorporates content created by OLP members including eDiscovery and legal technology lawyers, consultants and experts. According to the announcement, OLP is the first organization to offer a Litigation Support Certification Exam.

The exam and prep course aren’t just for anybody who can study and take a test, candidates must complete an application form found in the Candidate Handbook and demonstrate prior work experience and/or education.  The requirements for demonstrating prior experience depend on whether or not you hold a J.D., baccalaureate degree, A.A./A.S. degree and/or are employed in the position of attorney or paralegal.  Specific eligibility requirements can be found here.

According to Chere Estrin, President of the OLP, the prep course offers self-paced, 24×7 accessible online learning tools and resources so learners can work at their own pace and schedule. Each course requires about 4 hours of dedicated study time. The course curriculum is comprised of all important and relevant learning objectives as identified by top legal field professionals and that cover all vital aspects ensuring knowledge development while best preparing the learner for the certification exam.

The topics covered are quite comprehensive and include:

  • Technology Topics including: Media, Hardware, Software and Terminology
  • Appropriate Uses of Software
  • eDiscovery Topics including: eDiscovery Definitions, File Extensions and Terminology
  • Case Law Topics including: Legal Procedure and Rulings, FRCP, The Sedona Conference and Other Resources
  • Legal Project Management Topics including: Information Management, Backup, Records Management and Legal Hold
  • Cost Controls and Budget Metrics
  • Early Case Assessment Topics including: Early Case Assessment, Matter Life Cycle, Matter Planning and Software Applications
  • Metadata Topics including: Metadata Forensics
  • Data Storage Topics including: Data Processing and Document Coding
  • Best Practices Topics including: Production Format, Records Retention
  • Risk Control and Management
  • Search Tools Topics including Software Applications, Review Tools, Forensics, Authentication and Hardware/Software

The cost for the prep course is $695 for OLP members ($895 for non-members) and the cost of the exam is $395 for OLP members ($595 for non-members) – individual membership is $125 per year, so it pays to be a member if you’re going to sign up for either the prep course or the exam.  Candidates for the exam will be able to schedule the date of the examination starting May 15, 2014 through the purchase of a voucher.  The exam will be administered in a secured facility in over 1,000 global locations including the U.S., Canada, Australia, the UK, Japan, Europe, Mexico, Puerto Rico, Brazil, Venezuela, and South Africa.

For more information about the CLSP® prep course and exam, click here.  You can also download the Candidate Handbook, available here.

So, what do you think?  Are you a litigation support professional?  If so, does the idea of a certification program appeal to you?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Professional Profile: Do You Know Duane Lites?

This blog is the first in a series aimed at helping you to get to know your peers better.  Each week I’ll give you career highlights of a law firm or corporate law department eDiscovery professional.  Today’s profile is on Duane Lites – an eDiscovery and Litigation Support veteran.

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Duane is the Director of Litigation Support at Jackson Walker LLP, located in the firm’s Dallas office.  Jackson Walker is one of the largest ‘all Texas’ firms with 350+ lawyers in seven offices located throughout the state.  Duane has been with the firm since 2007.

Duane manages the firm’s Litigation Support department, which offers litigation support and eDiscovery services to all the firm’s litigators.  The department does its own eDiscovery processing, manages document reviews, provides trial graphic services, provides litigation support consulting services and on occasion provides forensics services. Duane manages the day-to-day operations of the department, trains and manages the staff (located in 4 of the firm’s offices), develops and implements department policies and procedures, consults with litigators, and procures and implements technology based on the practices and needs of the litigators.

In the mid 1980s Duane worked as a computer programmer at an oil and gas company in Dallas.  His boss left to take a position at a litigation support vendor, and convinced Duane to join him there in 1986.  Duane’s first work in litigation support was on a large asbestos case, working with a paper collection of about 500,000 documents (that was a huge case in the 1980s!). He worked converting key-punched data into load-ready form for the vendor’s timeshare system. Over time, he moved into working more with the databases and was heavily involved with integrating images with databases when that technology was first implemented in the industry. Between then and starting at Jackson Walker, Duane worked at two other law firms in Dallas and also spent some time with a few Litigation Support vendors and consulting organizations to round out his experience.  Over time he realized that his preference was being in a firm, assisting and working directly with litigation teams, understanding their needs, and finding solutions to their problems.

The move to Jackson Walker was a good one for Duane. He has buy-in at all levels. Litigators through the firm’s executive managers support his efforts, trust his judgment, and provide the resources he needs to optimize the department’s value to the firm.

One of the most valuable things Duane has learned in his years as a litigation technology professional is that ‘relationship’ is critical to the success of a litigation support department and to effectively marketing litigation support and eDiscovery services within a firm. To be successful you really need to understand what the lawyers are doing and what they need.  The best way to do that is to develop good relationships with them.

His biggest challenge today is managing resources with workflow — the workflow is increasing at a faster pace than the resources are, and managing that can be tricky.  One of his initiatives for this year is to get everyone in his department cross-trained, thereby giving him more flexibility in allocating resources.

Throughout his career, Duane has been active in professional organizations and endeavors.  He is a past president of the Dallas Fort Worth Association of Litigation Support Managers, a member of ILTA, on the editor board of the Litigation Support Today publication, and a co-founder of the popular Yahoo Group, The Litigation Support List.  Started in 1998, the list has grown its membership to over 9,000 litigation technology professionals. Duane still maintains and monitors the list.

Duane was born and raised in Texas and has been in Dallas for almost 30 years.  He is a history buff.  In his spare time he researches American history, builds military dioramas, and enjoys antique shopping with his wife. He has recently taken up restoring antique desk fans, circa the early 1900s. He also enjoys golf, sporting events, and spending time with his family.

He’ll be at the upcoming annual ILTA conference in Nashville in August.  Say hello or introduce yourself if you haven’t yet met him. Duane always enjoys meeting peers in the litigation support and eDiscovery community.

Please let us know if there are eDiscovery topics you’d like to see us cover in eDiscoveryDaily.

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

Ralph Losey of Jackson Lewis, LLP – eDiscovery Trends

This is the tenth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Ralph Losey. Ralph is an attorney in private practice with the law firm of Jackson Lewis, LLP, where he is a Shareholder and the firm’s National e-Discovery Counsel. Ralph is also a prolific author of eDiscovery books and articles, the principal author and publisher of the popular e-Discovery Team® Blog, founder and owner of an online training program, e-Discovery Team Training, with attorney and technical students all over the world, founder of the new Electronic Discovery Best Practices (EDBP) lawyer-centric work flow model. Ralph is also the publisher of LegalSearchScience.com and PreSuit.com on predictive coding methods and applications.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

The presentation that I did at the show was called the “John Henry moment”, and I presented with Cliff Dutton, who is a technology expert at AIG (not an attorney, but an expert with technical processes in electronic discovery). The other panelist was Jason Baron (whose own thought leader interview from last week can be found here).  Cliff, Jason and I were examining at LegalTech what comes next after predictive coding.  What is the inevitable direction that technology is taking?  That was really the theme behind the “John Henry moment”.  A similar question was asked by other panels, but, and of course I’m prejudiced, I think our panel had some particularly good, unique insights.

Before I get into the answer that emerged from our panel, I will say that other panels were focusing on other parts of the technology world.  They were talking about things like data breach and privacy – those are two big issues that we’ve seen in the past, but they seem to be emerging even stronger than before and were big issues in the keynote speech.  It appears to be a surprise to some people that there is crime on the Internet.  Many of us are quite aware of that – I had to change my credit card just a couple of months ago.  So, data breaches, either on purpose by a hacker or unintentional through negligence, and data privacy are certainly big issues.

These were not the issues that Jason, Cliff and I talked about.  Instead, we were talking about the advancement into the second machine age.  This is something that has been discussed by the New York Times and also in a best-selling book called The Second Machine Age: Work, Progress, and Prosperity in a Time of Brilliant TechnologiesIt has to do with the application of ever more sophisticated computer algorithms that allow us to replicate what the human mind is capable of doing and to automate not just manual labor, but automate the mental labor of mankind.  Of course, what we’re focused on is its application to lawyers – what we lawyers do that can now be improved, enhanced and automated.

Now, in the past, the big discussion has been on predictive coding and this is certainly an example of the application of advanced computers and what is being called “analytics” –  taking big data and understanding the implications of big data.  Examples outside the law include Netflix, that takes your viewing history and tells you about a new movie they have that you’re going to like, and Amazon who takes you buying history and suggests books that you’re going to like.  They’ve both analyzed your data.  So, what we were discussing is how this concept will impact the law.  That’s really an important topic that our panel addressed that I had an opportunity to follow up on recently in my blog (that parodied the movie Minority Report, which had something called “pre-crime”), called “pre-suit”.  Not “pre-crime”, but “pre-suit”.  I’ve already (surprisingly) been able to get the URL for presuit.com and it discusses corporate counsel using what I call “smart data” to predict and prevent litigation before it happens.  That’s what our panel discussed and I think that’s really the next big thing (with all due respect to people that are focused by privacy and data breach issues).  So, I think the next big thing is to apply data analytics and the latest advancements in artificial intelligence to get a much better handle and control on litigation than we have today.

The idea behind “pre-suit” is essentially to win your next lawsuit before it’s even filed.  Jason Baron also recently wrote an article about it in Law Technology News (Escape From the Island of E-Discovery), which I didn’t know about when I wrote my article – he showed it to me the day of our panel session.  He talks about three examples of using data analytics for something other than predictive coding: the first two are data remediation for information governance purposes and records classification to, for example, classify and file your emails for you.  The third one he calls “bad conduct detection” – I call it the use of smart data to predict and prevent a cause of action from occurring – basically, when employees within your company are doing something that could be a basis for a lawsuit.

He wrote about it in the article and, independently, I had the same idea I (at least I think I did – Jason is alleged to have mind control abilities!).  In my blog, I wrote about how this “pre-suit” concept will work and this isn’t based on science fiction, it’s based on technology that’s available today.  We have the technology to detect patterns of wrongful activity that are there.  In corporate email and text messages, we can detect when an employee may be harassing another employee.  It’s far more than just looking for certain words that should never be said in email, but also patterns so you can bring in an employee for counseling before damage is done, before a reputation is ruined or a lot of emotional harm happens and way before a complaint is filed by the victim.

So, this is really the next big thing – to stop lawsuits before they mature.  In other words, why should we depend on plaintiff’s counsel to come to the door of corporate counsel to let them know that they’ve found this group of employees in the company that have been discriminated against or are receiving wrongful treatment?  Find about it in advance and fix it yourself – much more effectively and much cheaper.  It’s essentially good citizenship for corporations to police their own activities rather than having outside attorneys find it and air their “dirty laundry” in a courtroom.  That’s the vision that our panel came articulated and that I think is the next big thing.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I wrote a blog post about it and I did predict that they would pass this year, but the level of controversy seems to be heating up at the last minute.  The commentary that Judge Scheindlin filed with the Rules Committee is just one indication that it’s escalating.  It’s very intense and it may be a closer question than I thought.  As I’ve written about it, my view is that some of these changes may not even be constitutional and that’s something that former Judge Ron Hedges believes – that some of the rules have gone too far in violating separation of powers, that the rules are going into substantive law.  I’m concerned how political the Federal Rules have become.  The judicial branch is supposed to be a separate branch of government, not part of the legislative branch.  So, I must say that I share Judge Hedges’ concerns on that and, even though I still think it will be approved, I am not pleased by how politicized the whole process has become..

Having said all of that, the reason that I’m not having the same emotional reaction that Judge Scheindlin and other commentators have had – on both the right and the left (frankly, this has become a liberal vs. conservative issue) – is that I don’t think it will have the profound impact that some people fear.  Ultimately, rules changes don’t change things as much as people expect them to do so.  Certainly, the 2006 rules changes didn’t lead to a huge impact, and regardless of what gets passed here, I don’t think it will have a huge impact either.  There is really a cultural change that is needed for eDiscovery to work right, rather than creating yet more rules that people can misunderstand and argue about.  In my opinion, we’re going to get more of a change by focusing on education, doing the kind of thing that you do, bringing the word to people so that they can understand what’s going on.  I think that does more good than creating more rules, especially when they’re particularly complicated rules.

One good result of the new rules is the emphasis on proportionality and cooperation.  I think those are good things, it doesn’t hurt to have them in the rules and that will encourage people to do what the rules already require – cooperate with each other and always have proportionality in mind.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

You pointed out the resources that are already there.  Do we need more and better resources?  I suppose.  And, I’ll still continue to work on that as, I’m sure, the other educational leaders that you’ve mentioned will do as well.  I think one of the most important new efforts to come on the scene is the one started by another Losey, Adam Losey, and his foundation IT-Lex.  That’s an educational foundation effort that is more oriented toward younger lawyers.  That is ultimately the answer.  Old fogies like me are going to retire and they just don’t want to learn.  They’re closed minded and, frankly, they’re getting more and more irrelevant every day.  We need to focus on the next generation and I’m really proud of Adam in how he’s doing a good job of carrying the torch on that.

I’m seeing this in my own family – first with my son Adam at Foley and now with his wife, my daughter-in-law, Catherine Losey who is now at Littler doing eDiscovery.  I can tell you that the next generation gets it and the hope is in the future.  I think you have to take a longer term view of things.  I tried cajoling lawyers my age into doing it and it doesn’t work, honestly.  In the book that I mentioned before, The Second Machine Age, delays like this in learning how to use technology have always been.  This is nothing new and it’s not unique to the legal industry.  It typically takes ten to twenty years for business or any general cultural activity to adapt to the new technology and figure out how to use it.

For people like me, it has been an exercise in patience because I’m ready to do everything yesterday.  But, the reality is that it will catch up, it’s starting to catch up and those of us who do know the technology needn’t despair that 98% of the bar still doesn’t know what we do.  That’s OK.  The number of people who do know will grow rapidly, particularly as people retire.  There are plenty of smart people my age who don’t get it, but they understand that they don’t get it, so they ask me to do it or they ask someone else who does get it to do it.  That is a fundamental ethical responsibility that good lawyers get.  Eventually, you’re going to have a field of specialists that focus on eDiscovery, especially complex artificial intelligence and other technology.  That’s how we will get at the truth.  There will be a specialty bar that other lawyers use who don’t do that.  But, right now, we’re still in a shakedown period.  We may see things speed up because of more eDiscovery malpractice cases – there have already been a few and there will be more.  And, competition will force the people that don’t get it out and allow opportunities for the next generation and the few in my generation that do get it.  Overall, I’m optimistic, because I don’t think there’s anything unique about lawyers to keep them from getting it; there are plenty of younger lawyers that do get it.  They are our future and I’m optimistic for that future.

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

Well, my online training program (e-Discovery Team Training) is still alive and well.  An encouraging sign is that we’re starting to have smaller firms signing up four, five or even six attorneys and paralegals.  So, I will keep eDiscovery Team Training in place as a cheaper, intro level, A to Z, course about eDiscovery for people that can’t afford to take the more expensive courses.  It’s an inexpensive alternative for people who do want to learn, that want to remain relevant and that understand that, in today’s world, it’s all about constant training, re-training and learning.

As for the more advanced training that I provide, I find that you can’t teach predictive coding just by writing and I’ve written maybe 35 essays on the subject.  I find it’s much more effective for me to teach it the good-old fashioned way – the way that Abe Lincoln learned law – with a one-on-one apprenticeship.  In other words, I show my attorneys by doing.  With something as complicated as predictive coding, coming in and consulting and actually helping lawyers do it is more effective than writing about it.  But, with the simple intros to eDiscovery, the writing is still effective, so I’ll keep on doing that too. I’ll keep writing on the advanced topics too, but with the understanding that many of the methods of predictive coding are too complex to teach my words alone.

Thanks, Ralph, 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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

This is the ninth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

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

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

In my opinion, LegalTech has become a real car show.  There are just too many vendors on the show floor, all saying they do the same thing.  Someone at the show tallied it up and determined that 38% of the exhibitors were eDiscovery vendors.  And, that’s just the dedicated eDiscovery vendors – there are other companies like Lexis, who do other things, but half of their booth was focused on eDiscovery.  The show has sections of the booths down one long hall with sales people standing in front of each section and it’s like “running the gauntlet” when you walk by them.  It’s a bit overwhelming.

Having said that, a lot of people were still getting stuff done, but they were doing so in the suites either at the hotel or across the street.  I saw a lot of good B-to-B activities off the sales floor and I think you can get more done with the leads that you get if you can get them off the sales floor in a more sane environment.  At the same time, if you’re not at the show, people question you.  They’ll say “hey, what happened to the wombat company?”  So, being at the show still helps, at least with name recognition.

One trend that has been going on for a while is that “everybody under the sun” is doing eDiscovery or says that they’re doing eDiscovery.  The phenomenal growth of the number of eDiscovery vendors of all sizes surprises me.  We see headlines about providers getting bought out and some companies acquiring other companies, but it seems like every time one gets acquired, two more take its place.  That surprised me as I expected to see more stratification, but did not.  Not that buyouts aren’t occurring, but there’s just so much growth in the space that the number of players is not shrinking.

Another trend that I noticed which puzzled me until I walked around the show and realized what was going on, is the entry of companies like IBM and Xerox into the eDiscovery space.  It puzzled me until I took a good look at their products and realized that the trend is to get more throughput in processing.  Our data sets are getting so big.  A terabyte is just not that unusual anymore.  Two to five terabytes is becoming typical in large cases.  500 GB to 1 terabyte is becoming more common, even in a small case.  Being able to process 5 to 10 GB an hour isn’t cutting it anymore and I saw more pressure on vendors to process up to a terabyte (or even more) per day.  So, it makes sense that companies like IBM and Xerox are going to get into the big data space for corporate clients because they’re already there and they have the horsepower.  So, I see the industry focused on different ways to speed up ingestion and processing of data.

That has been accompanied by another trend: pricing pressures.  Providers are starting to offer deals like $20 per GB all in with hosting, processing, review, unlimited users, etc.  From the other end of the spectrum of companies like IBM and Xerox are small technology companies, coming not from legal but from a very high-end technology background, looking to apply their technology skills in the eDiscovery space and offering really discounted prices.  I’ve seen a lot of that and we started to see it last year, with providers starting to offer project pricing and getting away from a per GB pricing model.  I think we’re going to see more and more of that as the year goes along.  I hesitate to use the word “commoditized” because I don’t think it is.  It’s not like scanning – every eDiscovery job is different with the types of files you have and what you want to accomplish.  But, there will certainly be a big push to lower the pricing from what we’ve been seeing for the 1-3 years and I think you’re going to see some pretty dramatic price cuts with pressure from new players coming into the market and increased competition.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I’ve been astonished that after the first wave of comments last fall that there has been little or no public comments or even discussion in the media about the rules changes. The public comment period closes tomorrow (Tom was interviewed on February 14) and you know the saying “March comes in like a lion and goes out like a lamb”?  That seems to be how it is with the end of the comment period.  I think I saw one article mentioning the fact that the comments were closing this week.  It has been a surprising non-issue to me.

For that reason, I think the rules changes will go through.  I don’t think there has been a concerted effort to speak out against them.  As I understand it, the rules still won’t be enacted until 2016 because they still have to go back to the committee and through Congress and through the Supreme Court.  It’s a really lengthy period which allows for intervention at a number of different steps.  But, I haven’t seen any concerted effort mounted to talk against them, though Judge Scheindlin has been quite adamant in her comments.  My personal feeling is that we didn’t need the new rules.  I think they benefit the corporate defense world and change some standards.  Craig Ball pointed out in a column last year that they don’t even address the issue of metadata, which is problematic.  I don’t think we needed the rules changes, quite frankly.  And, I wrote a column about that last year.  In a world where I hear commentators and judges say that 90% of the attorneys that appear in front of them still don’t understand ESI or how things work, clearly if they don’t understand the current rules, why do we need rules changes?  Let’s get people up to speed on what they’re supposed to be doing now before we worry about fine tuning it.  I understand the motivation behind getting them enacted from the people who are pushing for them, why they wanted them and I suspect they will pretty much go through as written.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

I absolutely agree with that.  I think the obvious remedy is to educate them where lawyers get educated, which is in law schools and I think the law schools have been negligent, if not grossly negligent, in addressing that issue.  Browning Marean and I went around to the different law schools to try to get them to sponsor a clinic or educational program in this area eight or nine years ago and were rebuffed.  Even to this day, though there are some individuals that are teaching classes at individual law schools, with the exception of a new program at Northeastern, there has been no curriculum devoted to technology as part of the regular law school curriculum.

Even the programs that have sprung up: the wonderful job that Craig Ball and Judge Facciola does at Georgetown Law School is sponsored by their CLE department, not the law school itself.  Michael Arkfeld has a great program that he does for three days down at the Sandra Day O’Connor law school in Arizona State University (covered on the blog here).  But, it’s a three day program, not a course, not a curriculum.  It’s not a focus in the curriculum of the actual law school itself.  We’ve had “grass roots” efforts spring up with Craig’s and Michael’s efforts, what Ralph Losey and his son Adam have been doing, as well as a number of people at the local level with CLE programs.  But, the fact is that lawyers get educated in law schools and if you really want to solve this, you make it as part of the curriculum at law schools.

There has always been an attitude on the part of law schools.  As Browning and I were told by the dean of a top flight law school several years ago, “we train architects, not carpenters”.  I myself was referred to, face-to-face, by a group of law professors as a “tradesman”.  They said “Gee, Tom, this proposal is a great idea, but why would we trust the education of our students to a tradesman like you?”  There’s this sort of disdainful academic outlook on anything that involves the hands-on use of computers and that’s got to change.  Judge Rosenthal said that “we have to change the paradigm” on how we handle things.  Lawyers and judges alike have to look at things differently and all of us need to adjust how we look at the world today.  Because it’s not just a legal issue, it’s a social issue.  Society has changed how it manufactures, creates and stores information/data/documents.  Other professional areas have caught onto that and legal education has really lagged behind.

I mentioned the eDiscovery Institute at Georgetown Law School, which happens every June.  But, they cap the attendants at about 60.  Do the math, there are about a million lawyers in the country and if you’re only going to educate 60 per year, you’ll never get there.  I also think that bar associations could be much more forthright in education in this area and requiring it.  Judicial pressure is having the best results – judges are requiring some sort of certification of competence in this area.  I know of several Federal judges who require the parties to state for the record that they’re qualified to address eDiscovery.  Some of the pilot projects that have sprung up, like the one at the University of Chicago, are going to require a self-certifying affidavit of competence (assuming they pass) stating that you’re qualified to talk about these issues.  Judges are expecting lawyers, regardless of how they learn it, to know what they’re talking about with regard to technology and not to waste the court’s time.

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

I just recently published a new guide on Technolawyer, titled LitigationWorld Quick Start Guide to Mastering Ediscovery (and covered on this blog here).  There are a lot of beginner’s guides to eDiscovery, but this one doesn’t really focus on eDiscovery, it focuses on technology, answering questions like:  How do computers work?  What are bits, bytes, RAM, what’s a gigabyte, what’s a terabyte, etc.

I literally had a discussion about an hour ago with a client for whom we have a big case going on in Federal court and there’s a large production, over a terabyte being processed by our opponents in the case right now.  I asked the client how much paper he thought that was and he had no idea.  The next time we start arguing cost in front of the judge, I’m going to bring in a chart that says a gigabyte is X number of pages of paper so that it has some meaning to them.  So, I think it’s really important to explain these basic concepts, and we in the technology world forget quite a bit how little many lawyers know about technology.  So the guide is designed to talk about how electronic media stores data, how that data is retrieved and explains some of the common terms and phrases used in the physical construction and workings of a computer.  Before you even start talking about eDiscovery, you need to have an understanding of how computers work and how they find data and where data can reside.  We throw around terms like “slack space” and “metadata” casually without realizing that not everyone understands those terms.  This guide is meant to address that knowledge gap.

I’m continuing some of my case work, of course.  Lastly, I recently joined a company called Cavo, which is bringing a new eDiscovery product to market that I’m excited about.  Busy as always!  And, of course, there are always good things going on in New Orleans!

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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Adam Losey of IT-Lex.org – eDiscovery Trends

This is the sixth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Adam Losey.  Adam is president and editor-in-chief of IT-Lex.org, a technology law not-for-profit educational and literary organization and an attorney at Foley & Lardner LLP.  Adam also served as an adjunct professor at Columbia University, where he taught electronic discovery as part of Columbia’s Information and Digital Resource Management Master’s Program.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

There were several trends that I saw at the show this year.  I think there was more emphasis this year on data security and privacy.  I don’t think that anybody is doing anything all that differently when they’re hosting data.  I think that they were – hopefully – going through the same steps for security before, but they’re emphasizing security more in marketing.  There was a lot more emphasis on ease-of-use solutions.  Candidly, I was expecting for some of the providers that are in this space to merge or go away and I know some of that is happening, but I saw increased competition in the marketplace in a variety of fields, which surprised me a little bit, but is good for the market.  I also saw more dedicated web-based litigation hold management products out there than I had seen in the past.  Unfortunately, I wasn’t able to go by every booth, so my experience is largely anecdotal and I may have missed some other trends.

As for trends for 2014, on the legal front, I expect more litigation on spoliation.  Again, my experience is anecdotal, but I happen to handle that particular issue a lot.  I’m seeing it pop up in a lot more cases; if not spoliation itself, then requests by parties to dig into their opponents’ search and review processes, just as a matter of course in the litigation if it is of any size.  In the past, I didn’t see that for any case of any size- it typically only came up in larger cases.  I don’t know if that’s decreased trust or a “trust but verify” Reagan type of approach, but it has become the norm in my world.  These days, many people want to do discovery on your eDiscovery, again just as a matter of course.  Typically, in the past, you’d only see that come up if there was any issue or deficiency with a production where someone could point to something wrong with your efforts.  But, it may not always be appropriate to do discovery about discovery, short of any issue identified with a production.

On the vendor front, I see a lot of vendors that have “click and drag” tools and solutions for small or medium sized firms or cases, which I think are really cool and I’m looking forward to playing with some of them.  From ingest to the end, a single person or lawyer can handle everything, clicking and dragging files to get them processed.  Obviously, sometimes issues come up in processing, so I’m wondering how the vendors handle those.  But, there’s a lot of cool stuff that I saw this year that I’m looking forward to playing around with.

The last trend that I see is a lot of interest and emphasis on forensic collection from mobile devices and social media collection.  That’s no surprise because in cases that I deal with, that comes up all the time.  I’ve done plenty of collections from iPhones and other devices.  The problem is that when you have those solid state drives, collections can be a little weirder and forensics can be a little more difficult.  And, social media collection is always somewhat of a “tricky bird” for a variety of reasons, not the least of which is you sometimes have a lot of layers in that onion that make it harder to collect from those sources.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

Excellent question.  I see some of the rules being approved.  I would want to fact check and make sure I’ve got the changes right, but I imagine that changes related to timing of depositions and number of witnesses and other minor procedural “quirks” will be passed, though I don’t see those as having a big impact on litigation.  I think that the number of hours per deposition is trimmed by an hour or two.  In all of the depositions that I’ve been involved, time of deposition is not a major controversial point.  If you can’t work that out with the other side, that doesn’t bode well.  But, for Rule 37(e), the rule that essentially creates a new standard for the imposition of spoliation sanctions, I hope that doesn’t pass.  I think it raises a lot of issues whether or not you think it’s necessary.  There’s a big issue about whether federal or state law governs this stuff.  When you’re litigating spoliation on a diversity case, it’s presumably governed by state law.  Or, so some cases say, others say “no, it’s a procedural issue, it’s governed by federal law”.  But, if they pass that rule, you suddenly have a new standard for spoliation in federal court, which will lead to all sort of nasty issues of “forum shopping” where people who destroy things will want to be in federal court, believe it or not.  Which is unusual, because there will be a standard that makes it difficult to get spoliation sanctions.

Judge Francis had a well-reasoned and superbly reasoned opinion addressing spoliation, where he held that “[The] sanction [of an adverse inference] should be available even for the negligent destruction of documents if that is necessary to further the remedial purpose of the inference. It makes little difference to the party victimized by the destruction of evidence whether that act was done willfully or negligently. The adverse inference provides the necessary mechanism for restoring the evidentiary balance. The inference is adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss.” (Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y. 1991)).

It does not matter whether the spoliator was a “cackling villain twirling his mustache” or an innocent employee that pressed the wrong button.  Spoliation addresses prejudice a party suffers as a result of the destruction of evidence needed to prove a case. It doesn’t really matter to the victim what the other party’s intent was.  You just want to be put in the position where you would have been if the evidence had not been destroyed.  So, the law until now in most jurisdictions (which I think had it right) said that if you have possession, custody and control of the ESI and you knew that you should have preserved it and it gets destroyed, we’re not going to shy away from leveling the playing field based on that.  The new Rule 37(e) is going to make it night impossible for some judges to keep the playing field level.

I’m not sure if that is going to pass or not, I have no special insight into that process or those committees.  But, although we do have some chaos now in that there are different standards in different jurisdictions, but I like for judges to have flexibility generally.  I think that “bright line” rules, while they may initially have some attractiveness in uniformity, take away flexibility from the good judges we have, who are smart people.  With flexibility, I think you see justice more than if you have a hard iron rule and the conflict of law issues that are going to come up as a result will be tricky.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

Well, again, my observations are anecdotal.  I’ve “drank the Kool-Aid” like many people that you’re probably interviewing.  So, most of the people that I deal with have some knowledge of eDiscovery.  But, in the Bar at large, I do think things are getting a lot better.  I think that the big barrier to education in a lot of cases is that you get a lot of eyes glazed over by a certain type of person when you start to talk about eDiscovery.  Much like my eyes might glaze over if you talk about particular provisions of the partnership tax code.  Some people love tax law – I have a friend that I went to law school with that is enamored with tax law and he’s an awesome tax lawyer.  And, he really likes that, but he doesn’t like eDiscovery.  So, it’s “different strokes for different folks”

Unfortunately, unlike partnership tax law, if you’re going to be litigating, you have to know about eDiscovery.  Ironically, my first trial was in Tax Court, on a pure tax issue, and some pretty major eDiscovery issues popped up in the middle of trial in a dramatic, surprising, way – so even the tax litigator needs to know eDiscovery basics.  So, the real challenge on eDiscovery education isn’t reaching the people who already follow this and already read the blogs – they’re well versed in it.  It’s important to provide something that’s funny and entertaining, if you can, so that you can bridge that interest gap with either humor or writing or presentation skills.  I think a lot of organizations are doing that and I feel that more people know about it now.  Certainly, the judiciary does.  The judges are very well versed in a lot of eDiscovery issues, at least generally.

But, at firms, there are some folks that don’t want to learn it, but realize it’s important, so they delegate.  In most situations, I don’t see anything wrong with that.  If you have a senior trial lawyer that’s in his 80s and he’s an excellent presenter and trial lawyer, but does not want to handle the “nitty-gritty” of eDiscovery and he brings someone on to handle that for him, I don’t see anything wrong with that.  The rules of professional conduct, at least in Florida, allow that too.  In competence, we have an ethics opinion in Florida (I think it’s 0602) that says you have a duty to competence that extends to an understanding of eDiscovery.  I think 0602 talks about metadata scrubbing and emails, but one of the ways that you can make up that competence shortfall is by involving other lawyers and having them help with the things you don’t know or understand, and I don’t see anything wrong with that.  I’ve seen a lot of companies actually (and I agree with this and love doing it), have firms or individuals just to serve as eDiscovery counsel to look over the shoulder.  They may use different firms for different litigations, but they want somebody that knows how the business works really well that can look over the shoulder of outside counsel or in-house folks in every case, which I think is a good trend.

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

There are a couple of quick points that I’d like to hit on with IT-Lex.  One, for law students and young lawyers, we have the highest paid cash prize writing competition in the country.  So, if you are a law student or know a law student, by all means, check it out or send them the link.  The cash prize is big, but it’s not the biggest part of the prize – the real prize is that the winner gets to headline at the Innovate conference, which is a huge career springboard.  Plus, they get invitations to become members.  So, I really want to emphasize the writing competition.

On top of that, our Innovate conference is going to be coming up October 9 and 10 of this year, so we’d love to see people there.  If you want to sign up as a friend of IT-Lex, you can do so for free and we always welcome involvement from folks in the community with what we do.  So, look at what we do and don’t be shy to reach out is the quick message.

Thanks, Adam, 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Conference for Small to Medium Cases – eDiscovery Trends

Last week, I told you about a two-day program being hosted in my hometown of Houston by The Sedona Conference®.  Here is another conference that you can attend no matter where you are, for a very reasonable price!

The Levin College of Law at the University of Florida and EDRM is hosting its second annual electronic discovery conference for the Small and Medium Case this year on March 14.  As the registration page states:

“The University of Florida E-Discovery/EDRM Conference for the Small and Medium Case this year focuses on letting your data tell the winning litigation story. E-discovery is more than responding to production requests. At its heart, e-discovery is locating, parsing, and restructuring the voluminous and diverse case data – emails, texts, word processing docs, social media postings and messages, databases, digital photos, browsing history, computer logs, and more – into a coherent, winning story.”

The co-chairs of the program are William Hamilton, Executive Director, University of Florida E-Discovery Project; Partner, Quarles & Brady LLP; and Provost at Bryan University (other than that, he’s not busy) and George Socha, Co-Founder, EDRM; and President, Socha Consulting LLC (and perennial thought leader interviewee on this blog).

Presenters include attorneys from firms such as Stroock & Stroock & Lavan, Phelps Dunbar, Shook, Hardy & Bacon, Vorys, Sater, Seymour & Pease; vendors such as kCura, Nuix and Nextpoint and iConect and three Florida judges.  The agenda starts at the Levin Advocacy Center at UF Law at 8:00am ET for breakfast and goes through the reception that ends at 6:30pm ET.  Sessions are from 9:00am to 5:20pm ET.  Here’s a tentative agenda and a complete list of presenters.

The conference costs $199 if you’re attending in person.  But, you don’t have to be in Florida to participate.  You can stream the entire conference for only $99.  And, if you’re a full-time law student (or a member of the UF faculty or professional staff), it’s free to attend in person or stream online!  Can’t beat that.

So, what do you think? Do you plan to attend the program? 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Useful eDiscovery Information Resources: Evaluating Products and Services

This blog series – Useful eDiscovery Information Resources – is aimed at giving you information on resources available to eDiscovery professionals… resources aimed at education regarding eDiscovery and resources aimed at keeping professionals up to date regarding the latest and the greatest in the industry.  The first posts in the series can be found here, here, here,here, here, here, here, here, here and here.

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For quality and efficiency purposes, most law firms and corporate law departments standardize on an approach to eDiscovery:

  • They create best practices for how eDiscovery will be handled.
  • They create guidelines for what tasks and volumes of materials will be handled in-house and what will get out-sourced to a service provider.
  • They standardize on a limited number of in-house tools that they’ll use for processing and reviewing eDiscovery.
  • They create a short list of approved online review tools that they’ll use when in-house resources aren’t sufficient for a project.
  • They’ll create a short list of approved service providers that they’ll use for various eDiscovery and litigation support services.

Selecting in-house tools to purchase and creating these service and product “approved lists” is not an easy task.  Done properly, it can take a lot of time.  And it’s not a one-time thing.  Products and service providers need to be routinely reviewed to ensure that they continue to be a good fit, and new technology and service providers should be evaluated.

As a first step, you need to ensure you really understand what the firm needs and wants, and you also need an understanding of the firm’s culture and its clients.  You need to have a good handle on the size of the cases handled by the firm, what attorneys expect of a product or a service, and what selection criteria is most important to the firm (is it price? Quality? Turn-around time?).  And of course, in this initial step, you may find that you have to educate yourself about emerging technology, and likewise educate the attorneys in your firm so that they make the right decisions regarding needs and wants.

Once you’ve got your selection guidelines in place, there’s the tedious task of evaluating and selecting the right products and the right service providers for your organization. You’ll rely on your own experience.  You’ll contact peers in the industry and get opinions from them.  You may post questions on the various internet forums to which you belong.

There are also a couple of web services that can help you here:

  • Apersee:  Developed by George Socha & Tom Gelbmann (the guys behind the Socha-Gelbmann Electrionic Discovery Survey and the EDRM), Apersee is a system for selecting e-discovery providers and products. This statement from the website’s About page best summarizes how it works: “The Apersee Selection Engine allows consumers to choose the criteria that matter most to them, assign priorities to those critera, evaluate the results, and modify their searches… “  Click here for more information on Apersee.
  • eDJ Matrix:  Created by eDJ Group Co-Founder Greg Buckles, the eDJ Matrix is an interactive, dynamic tool that provides information on and evaluations of eDiscovery solutions – both products and services. Click here for more information on the eDJGroup and the eDJ Matrix.

These resources can save you a lot of time – the folks behind these tools have done a lot of the leg-work for you. These tools can really help to narrow down the product and service provider candidates that are a good match for your firm.

I’ll be back next week with the next post in this resources blog series.  In the meantime, let us know if there are specific topics you’d like us to cover.

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

LitigationWorld Quick Start Guide to Mastering eDiscovery – eDiscovery Best Practices

With the Super Bowl coming up in a few days, it seems appropriate to relay a story about the man for whom the trophy to the winning team is named…

During his first year with the Green Bay Packers, legendary coach Vince Lombardi pulled his team together for a stern lecture after his team lost five games in a row.  He scolded them saying “You forgot every basic fundamental about this game.  We are going to have to start all over again, from scratch!”  Then, he picked up a football and said “Gentlemen, the basics.  This is a football!”  To which one of his players responded “Hold on a minute, Coach!  You’re going too fast!”

Sometimes, it seems like we’re “going too fast” when trying to explain eDiscovery to attorneys.  At least it seems that there are a lot of attorneys that don’t understand the simplest basics.  Now, a brand new guide is hoping to help change that.  Earlier this month, TechnoLawyer published LitigationWorld Quick Start Guide to Mastering Ediscovery, written by Tom O’Connor, who is a nationally recognized consultant in legal technology (and past thought leader interviewee on this blog).

After illustrating just how big the knowledge gap can be, how a lack of eDiscovery knowledge can prove disastrous (via the opinion In re Fannie Mae Securities (D.C. Cir. Jan. 6, 2009)) and the ethical duties for lawyers to understand technology, Tom’s Quick Start Guide dives into the “This is a football!” basics of how computers work and why you should care.  It discusses the bits and bytes (literally) of how computers store data that is discoverable and how “deleted” electronically stored information (ESI) is actually often recoverable.  Remember Oliver North and the Iran-Contra affair?  His deleted email was recovered and he was convicted of perjury…way back in 1989.  These are not groundbreaking new concepts, but they are important if you’re going to be responsible for handling data in discovery.

With some basic technical concepts covered, the guide covers the evolution of eDiscovery with the December 2006 amendments to the Federal Rules of Civil Procedure (FRCP), similar amendments adopted by many of the states and, of course, the groundbreaking Zubulake v. UBS Warburg case.  To tie back to the computer fundamentals, Tom asks and answers an important question: “How can you apply current and future rules to ensure your clients preserve all potentially relevant ESI unless you know how it’s stored? You can’t so that’s why you need to understand the basic technological underpinnings of data storage.”

Tom then goes on to cover various forms of production and the advantages and disadvantages of each – his reference to TIFF images as “petrified” is the best adjective I’ve heard yet to describe them – and covers other basic (but important) concepts, such as collection, processing and load files.  He concludes by discussing the importance of learning to “speak geek” about storage technologies and sets the path for you to travel to “true eDiscovery mastery”.

The document is relatively short and sweet, at just 17 pages after the title page and is an easy read, yet contains numerous links to outside resources for those who want to dive deeper.  He references a number of resources and courses available from a variety of eDiscovery pioneers, including Ralph Losey, Craig Ball and Michael Arkfeld.  There is no shortage of resources in this guide for those who want to learn more about eDiscovery.

The free guide is available for download at TechnoLawyer here (you have to be a member of TechnoLawyer to get it, but membership is free, which also gives you access to numerous other resources available on the site).

As Tom notes via a quote from Craig Ball (from this very blog, no less), “Understanding information technology is a necessity for litigators. That’s where the evidence lives.”  As Tom notes, “We all must adapt to this new paradigm of working in the digital world.”  Let’s hope that adaptation occurs sooner rather than later.

So, what do you think?  Do you understand the basic technical concepts you need to as a lawyer?   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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.