Close
Enter your
text here

Ethics

Brad Jenkins of CloudNine: eDiscovery Trends

This is the first of the 2017 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY (aka LegalWeek) this year to get their observations regarding trends at the show and generally within the eDiscovery industry.

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!  🙂

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

Once again, a majority of my time at LTNY was spent in meetings with colleagues and business partners as CloudNine had a suite and we had several meetings set up over the course of the three days of the show.  It seems that the meetings outside the show have become as big as the show itself.  Several people that I met with had hardly spent any time (if any) at the show when I met with them.  Because it’s the biggest conference of the year, LTNY provides a unique opportunity for face to face meetings you don’t get during the rest of the year, so it pays to take advantage of that opportunity.  Unfortunately, that comes at the expense of attending most of the conference itself.

I was able to attend some of the conference and spent a little time in the exhibit hall.  Based on what I saw, attendance seemed down this year and some of the exhibitors that I spoke with seemed to agree.  I assume the decision by ALM to charge a fee for the Exhibits Plus passes for the first time ever had an impact on attendance in the exhibit hall.  Not surprisingly, some criticized that decision, so it will be interesting to see if exhibitors push back on that and if ALM decides to charge that fee again next year.

Regardless, with so many opportunities for providers to reach prospects in a less expensive manner and with a market that clearly appears to be consolidating, I would expect that it will continue to be a challenge for ALM to retain exhibitors.  Over the past few years, the number of exhibitors have dropped and I wouldn’t be surprised to see that trend continue unless ALM gets creative in identifying new ways to attract potential exhibitors to the conference.

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

Last year, I noted a clear trend toward SaaS automation within eDiscovery and I think it’s clear that trend has not only continued, but expanded.  In addition to the investment in some automation providers, and the emergence of others like our company, CloudNine, we’ve seen several of the “big boys” (such as Ipro, Thomson Reuters and kCura) roll out their own cloud-based automation initiatives.  In the past year, we also saw organizations like Gartner acknowledge that cloud eDiscovery solutions are gaining momentum in the market due to their ease of use and competitive and straightforward pricing structures.  The move to the cloud for eDiscovery reflects a similar migration to the cloud within organizations for everything from SalesForce.com to Office 365.  In fact, Forbes.com recently published an article that reflected a prediction that, by 2020, 92% of everything we do will be in the cloud.  So, it makes sense that eDiscovery solutions would reflect that trend.

Another trend that has been happening for a few years and is certainly accelerating is the move to the left of the EDRM model for discovery and analytics.  With estimates of data doubling in organizations every 1.2 years, organizations are certainly having to turn to technology to address the challenges associated with that explosion of data.  The need for discovery is no longer initiated just by trigger events such as litigation or investigations – the need for organizations to perform discovery is a perpetual need.  You’re seeing organizations beginning to focus on data discovery to explore patterns and trends within unstructured data, even at the point of data creation, to gather insight into the data they have.  Then, when those trigger events occur, organizations are progressing into more traditional legal discovery to identify, preserve, collect, process, analyze, review and produce key ESI to support legal or investigative activities.  I think you’ll see that trend toward an increased focus on data discovery continue to accelerate as a way for organizations to address the challenges associated with the explosion of data in their environments.

One last trend that I’ll mention is the growing number of state bar associations that have adopted some sort of expectation or guidance for technology competence among their bar members.  I believe that there are 26 states now that have adopted some version of Comment 8 to ABA Model Rule 1.1 and Florida has become the first state to actually mandate technology CLE for their attorneys – three hours of technology CLE over a three year period.  At CloudNine, we believe that educated clients make the best clients and we’ve tried to do our part for the past several years to help educate the legal profession with our blog and, this year, we are adding educational webcasts (with CLE certification in some states) to help educate lawyers.  While I think we still have a long way to go before the legal profession is generally knowledgeable about technology, I think the increased focus on technology competence along with the continued trend toward simplified discovery automation puts attorneys in a better position than ever to use technology to support their discovery needs.

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

In addition to the educational webcasts that we have started conducting this year, CloudNine recently announced our latest accomplishment in simplified discovery automation with our integration with Relativity that provides Relativity users with a client application that automates the upload, processing, and ingestion of ESI into Relativity, directly from their desktop.  Just as CloudNine users have been able to automate the upload, processing, and ingestion of ESI into CloudNine for several years now, the universe of more than 150,000 Relativity users will now be able to do the same.

We have several other new features and capabilities that provide simplified discovery automation capabilities to our clients that are also in the works and I look forward to having more information to share on those soon.

We are also very active in the data discovery space that I referred to earlier, providing solutions and assistance to help clients address their data discovery needs.  We’re finding that the needs of organizations to gain insight into their data occurs long before litigation and other events trigger the duty of those organizations and CloudNine is at the forefront in helping organizations address their data discovery needs.

As I said during last year’s interview, we feel that CloudNine is the leader in simplifying discovery automation and our unique combination of Speed, Simplicity, Security and Services enables CloudNine to simplify discovery for our clients.  That continues to be our mission as a company and has been throughout our more than 14 years as a company assisting our clients.

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.

Metadata Plays Key Role in $10.8 Million Whistleblower Lawsuit Verdict: eDiscovery Case Law

Earlier this month, federal jurors awarded nearly $8 million to the former general counsel of a company who says he was fired because he blew the whistle on his company’s potential violation of a foreign bribery law.  That award will increase to $10.8 million because the Dodd-Frank Act authorizes the doubling of back pay for whistleblower retaliation.

An article in The Recorder (Ousted Bio-Rad GC Wins Whistleblower Case, written by David Ruiz) stated that a federal jury sided with former Bio-Rad Laboratories Inc. general counsel Sanford “Sandy” Wadler in his whistleblower retaliation lawsuit against the company, after deliberating for less than three hours.

The jury awarded Wadler $2.9 million in back pay and stock compensation and $5 million for punitive damages.

“I’m extraordinarily grateful to the jury for its very thoughtful verdict in finding that whistleblowers need protection,” lead attorney James Wagstaffe (of law firm Kerr & Wagstaffe) said immediately after the verdict was read. “You’re not supposed to fault whistleblowers for raising legitimate concerns about potential corruption.”

Wagstaffe also said that back pay damages are doubled, increasing the total award to $10.8 million.

Wadler, who was fired from his post at Bio-Rad in June 2013, maintained that he was forced out because he blew the whistle on potential Foreign Corrupt Practices Act violations by the company in China.  Jurors found that Wadler’s whistleblowing activities were a significant reason the company fired him in June of that year.

Wadler’s lawyers at Kerr & Wagstaffe were able to undermine some company testimony by pointing to a lack of documentation about Wadler’s alleged outbursts, partly by repeatedly returning to the last review that Wadler received while on the job in December 2012, which was largely positive.

A key aspect of the jury’s decision related to the metadata associated with Wadler’s most recent performance evaluation, which was apparently dated in April 2013.  Before the jury reached its verdict, it asked about the timing of that performance evaluation. According to Wagstaffe, metadata showed the performance evaluation was actually created in July 2013, a full month after Wadler’s termination. The jury asked if the date referred to the document’s creation or its modification. It referred to creation, said U.S. Magistrate Judge Joseph Spero, who presided over the case.

In an interview with Courthouse News, Wagstaffe said the metadata evidence helped tip the scale in Wadler’s favor and that the “fake job review” (his words, not mine) was a major piece of evidence that helped tip the scale.

Hat tip to Sharon Nelson at Ride the Lightning for her post about the story.

So, what do you think?  Can metadata prove when a document was created?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. — Happy Valentine’s Day!

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 Every Attorney Should Know About eDiscovery in 2017: eDiscovery Trends

Early this year, I asked if we’ve (finally) reached the age of technical competence of attorneys.  Perhaps we’re not there yet.  However, CloudNine is sponsoring a webcast today which may help bridge the gap.

Today’s webcast at noon CT (1pm ET, 10am PT) is titled What Every Attorney Should Know About eDiscovery in 2017 and will be conducted via the BrightTALK network.  This is a one-hour session that Karen DeSouza (Director of Review Services here at CloudNine) and I have conducted for the past couple of years for hundreds of legal professionals for CLE credit in Texas.  It’s a good fundamental session that covers a lot of things attorneys need to know in eDiscovery today, including

  • Key Terms to Know Regarding eDiscovery
  • Phases of the eDiscovery Life Cycle
  • Federal and State Rules Regarding Electronically Stored Information (ESI)
  • Competency Ethical Duties of Attorneys Regarding eDiscovery
  • Important Cases in the Evolution of eDiscovery Best Practices
  • Useful Resources for eDiscovery Continued Education

The webcast is CLE Approved in Texas and Florida.  The Texas approval is 1.0 hours of CLE credit, with 0.25 hours of Ethics credit.  To obtain approval in Texas, you will need to send your information (along with bar number) after the webcast to Karen at kdesouza@cloudnine.com, so that she can log your credit hour.

The Florida approval is for 1.0 hours of CLE, with 1.0 hours of Technology CLE credit.  As you’ll remember, Florida late last year mandated three hours of technology CLE for attorneys over a three year period, starting January 1 of this year.  So, if you’re in the Florida Bar, this an opportunity to get one of those hours!

To sign up for today’s webcast, click here.

So, what do you think?  Do you have your eDiscovery fundamentals down?  If not, please feel free to join us!  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. 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.

Looking Back at Predictions That I Made Three Years Ago, Part 2: eDiscovery Predictions Revisited

Yesterday, I took a look back at two posts that comprised six eDiscovery predictions for 2014 that I wrote three years ago.  I thought it might be fun to look back at those posts to see how those predictions fared.  I covered the first three predictions yesterday, so today I’ll cover the last three.

Prediction 4: Data security will be more of an emphasis than ever, yet we will continue to see more data breach stories than ever.

If you follow our blog regularly, you know that we assign categories to each blog post to make it easier to find posts related to specific topics (that’s how you can quickly find all 500+ case law posts we have published since the inception of the blog back in September 2010).  In January of 2014, we hadn’t yet even created a “Security” category – that’s how little the topic was being discussed.  Now, we not only have a category, we currently have over 40 posts that have discussed data security and cybersecurity.  In addition to increased coverage on our blog, there are several other blogs and resources either dedicated to cybersecurity issues in the legal arena or at least covering them extensively.  So, there is plenty of discussion to go around.

Are we seeing more data breach stories than ever?  We’ve covered several breach stories on our blog, including this one about my hometown baseball team, this one about a website dedicated to cheating spouses (ok, maybe they had it coming) and this one about a Panamanian law firm that exposed (alleged) illicit offshore holdings of global political leaders and celebrities.  Not to mention the data breach associated with our recent presidential election.  Clearly, despite increased focus on protection from cybersecurity breaches, they still happen and happen frequently.

Prediction 5: Small to medium sized law firms will need to leverage virtual resources more than ever to compete.

Three years ago, it seemed clear to me that small to medium sized law firms would need to outsource more to compete with the big firms that could afford to insource eDiscovery services.  And, I wasn’t the only one advocating the benefits of outsourcing as people like eDiscovery thought leader Ralph Losey (author of the excellent e-Discovery Team® blog and member of big firm Jackson Lewis) were asking questions like “Why should you own and operate a nonlegal e-discovery business within your walls under the guise of a litigation support department?”

I’m not sure that I’ve seen much change in this area, with one exception.  More firms – small, medium and large – have embraced self-service SaaS automation eDiscovery platforms than ever before (and providers are taking note as many of the “big boy” providers are changing their business models to offer that option).  In my opinion, SaaS automation has definitely revolutionized eDiscovery for solo and small firms, giving them access (for the first time) to full-featured eDiscovery solutions that fit within their budget.  So, in that regard, they are able to compete with the big firms.

Prediction 6: Educating attorneys on eDiscovery best practices will continue to be a slow, painful process.

Year after year, I’ve asked various eDiscovery thought leaders at LegalTech New York (our seventh annual interview series is coming up next month!) if attorneys are beginning to “get” eDiscovery.  And, year after year, most of them say that we have a long way to go in that area.  Up to now, I agree.

But, things may finally be changing.  In 2015, California adopted Formal Opinion No. 2015-193, which discussed an attorney’s ethical duties in the handling of discovery of electronically stored information.  As of the beginning of 2017, more than half of all states – 26 in all – have some sort of ethical guidance with regard to understanding technology.  And, late last year, Florida mandated three hours of technology CLE for attorneys over a three year period, starting January 1 of this year (which is one reason why Florida is one of the states where we have approved CLE for our webcast next week).

It appears that more state bars are beginning to understand the importance for attorneys to understand the technology.  And, that technology is continuing to become easier to use.  That’s why we may finally be entering an age of technical competence for attorneys.  The prediction (that educating attorneys will continue to be slow and painful) is one prediction that I would be happy to be wrong about.

So, what do you think?  Has eDiscovery evolved like you thought it would?  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.

REAL CLE Credit and Also a Bit About FAKE Lawyers: eDiscovery Trends

These are two totally unrelated topics, by the way.

Last week, when I wrote about whether this is the age of technical competence for attorneys, I also referenced our webcast on Wednesday, January 25th at noon CT (1pm ET, 10am PT) titled What Every Attorney Should Know About eDiscovery in 2017 via the BrightTALK network.  This is a one-hour session that Karen DeSouza (Director of Review Services here at CloudNine) and I have conducted for the past couple of years for hundreds of legal professionals for CLE credit in Texas.  It’s a good fundamental session that covers key terms, the eDiscovery life cycle, rules, duties, and case law which can give you tools and resources necessary to efficiently and effectively meet challenging discovery obligations that you’ll face this year.

At the time, I indicated that we were working on CLE credit for at least some states.  I’m happy to announce that we now have CLE approval for two states: Texas and Florida.  The Texas approval is 1.0 hours of CLE credit, with 0.25 hours of Ethics credit.

The Florida approval is for 1.0 hours of CLE, with 1.0 hours of Technology CLE credit.  As you’ll remember, Florida late last year mandated three hours of technology CLE for attorneys over a three year period, starting January 1 of this year.  So, if you’re in the Florida Bar, this an opportunity to get one of those hours!

Click here to register for the webcast.  Hope to see you there (at least digitally) on the 25th!

Also…

In the latest post in his excellent LawSites blog (What’s With These Fake Lawyer Blogs and Twitter Accounts?), Bob Ambrogi mentions that he has “five very loyal followers of this blog. Three are lawyers, one is a legal secretary and one is a legal assistant.”  According to Bob, these particular followers reblog “everything” Bob posts onto their blogs and Tweet some of what he posts on their Twitter feeds and are loyal followers of other blogs, as well.

The only problem is that none of them appear to be real people.  Bob noticed the issue when, recently, all five separate blogs “started reposting everything” he posts and they “always do it in unison, within a minute or two of each other”.  He also noted that all five blogs use essentially the same page layout and nearly identical list of links to their other supposed social media accounts.

With a little snooping and some help from Google image search to search for the pictures displayed on their Twitter accounts, he has found that one has matched an endodontist named John Smith (who may or may not be real, as well) and another to someone who has a profile on a personals site.  The name for neither of them ties to an actual attorney currently licensed to practice in their supposed state.

I clicked on the link to the Twitter account of the first “lawyer” that Bob mentioned.  While I didn’t see any Tweets of Bob’s posts, I did see several posts from Kevin O’Keefe’s excellent blog, Real Lawyers Have Blogs.  Oh, the irony!

So, what do you think?  Where do you go for legal technology content?  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.

Is This the Age of Technical Competence for Attorneys?: eDiscovery Trends

Last year, I led off the year with a post declaring that the age of eDiscovery automation is upon us (even with an exclamation point for emphasis!).  Was that the case?

Well, in the past year (or so), we’ve seen an even more broad acceptance of Technology Assisted Review (TAR) with the first UK case law to approve the use of TAR.  Sure, there is still some dispute about the technology and acceptance of TAR (and sometimes how it is presented), and the machine learning technology at the core of TAR may be at the “Peak of Inflated Expectations”, but it’s clear that TAR is here to stay, even as the technology and approaches around it evolve.

With regard to SaaS automation technology, we’ve seen significant investment by venture capital firms in providers like Logikcull and Everlaw and we’ve also seen “big boys” like kCura, Ipro and Thomson Reuters make significant SaaS and automation announcements.  Not to mention the emergence of other SaaS automation providers like CloudNine (you knew I’d mention us in there somewhere, right?).  With the continued evolution of TAR technology (and acceptance of that technology) and the emergence of SaaS automation alternatives, it’s clear that automation is already changing the eDiscovery landscape in a big way.  And, that doesn’t even consider the growing impact of automated data discovery prior to litigation, which is another trend that I think you’ll see have a significant impact on the market in the coming years.  So, I was right.  ;o)

However, for automation technology to really have an impact, the users of that technology need to really understand that technology and its benefits and we’ve discussed numerous times on this blog how attorneys are lacking in their understanding of technology.  This thought has been reinforced by many of the thought leaders we’ve interviewed over the years who have discussed how disappointed they are with the rate of adoption of technology by the legal industry.  In particular, Craig Ball likened it to the melting of the glaciers, then observed that, because of global warming, the glaciers might be melting faster than attorney adoption of technology.  Will lawyers ever “get” the technology?

Maybe they’re finally being forced to do so.

In 2012, the American Bar Association formally approved a change to Model Rule of Professional Conduct 1.1 to clarify that attorneys not only have a duty to be competent in practice of law, but also in technology with Comment 8 to the rule which reads: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” {emphasis added}

Then, in 2015, California adopted Formal Opinion 2015-193, which stated that “[a]ttorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery”, noting that an attorney lacking the required e-discovery competence must either learn it, consult with someone who knows it or decline the client representation.

Now, over half of the states – at least 26 in all – have adopted some requirement (or at least guidance) for technical competence by attorneys.  And, we now have our first state – Florida – which late last year actually mandated three hours of technology CLE for attorneys over a three year period, starting January 1 of this year.  Will that start a new trend of states requiring technology CLE?  We’ll see.

Regardless, it’s clear that the trend is toward more and more states expecting licensed attorneys to have some level of technology competence.  As my boss likes to say, “you can get on the bus, or get run over by the bus”.  (Yep, I know I used that statement last year when discussing adoption of automation technology – I guess I need to get some new material…)

With that in mind, it’s important to stay on top of best practices and trends regarding technology in the legal industry to meet your state’s technology competence requirement.  Your state may not currently have such a requirement, but (based on recent trends), it could be coming.  One way to do so is via reading, so if you’re a regular reader of our blog, congratulations!  You’re already doing something to boost your technology competence level by learning about eDiscovery best practices, trends and key case law decisions.

Another way is through training and CLE events, either in-person or via webinar, where you can learn about technology and possibly satisfy your CLE requirements (even if you don’t live in Florida).

To help in that endeavor, CloudNine is sponsoring a webcast on Wednesday, January 25th at noon CT (1pm ET, 10am PT) titled What Every Attorney Should Know About eDiscovery in 2017 via the BrightTALK network.  This is a one-hour session that Karen DeSouza (Director of Review Services here at CloudNine) and I have conducted for the past couple of years for hundreds of legal professionals for CLE credit in Texas.  It’s a good fundamental session that covers key terms, the eDiscovery life cycle, rules, duties, and case law which can give you tools and resources necessary to efficiently and effectively meet challenging discovery obligations that you’ll face this year.

To sign up for the webcast, click here.

I should note that we are currently working on CLE accreditation for the webcast in at least a couple of states and I will provide updates on this blog as we obtain approval for each state.  Regardless, it’s a terrific overview of eDiscovery concepts and I hope you’ll join us.

So, what do you think?  Do you think we’re finally entering an age of technical competence for attorneys?  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.

Florida Becomes First State to Require Technology CLE: eDiscovery Trends

OK, I may have taken a couple of shots at Florida last Thursday over their ballot issues in elections over the years.  However, Florida deserves credit in being the first state to require technology CLE for lawyers.

The rule change, among others proposed by the Florida Bar and ordered by the Supreme Court of Florida on Thursday states:

“We amend subdivision (b) (Minimum Hourly Continuing Legal Education Requirements) to change the required number of continuing legal education credit hours over a three-year period from 30 to 33, with three hours in an approved technology program.”

In that same order, Florida also became the 25th state to order adoption of the duty of tech competence for that state, stating:

“The comment to rule 4-1.1 (Competence) is amended to add language providing that competent representation may involve a lawyer’s association with, or retention of, a non-lawyer advisor with established technological competence in the relevant field. Competent representation may also entail safeguarding confidential information related to the representation, including electronic transmission and communications. Additionally, we add language to the comment providing that, in order to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including an understanding of the risks and benefits associated with the use of technology.”

The changes become effective on January 1, 2017.

As reported Monday on his Law Sites blog (Florida Becomes First State To Mandate Tech CLE), Bob Ambrogi notes that the mandate was first recommended by the Technology Subgroup of the Florida Bar’s Vision 2016 commission, which was chaired by Vero Beach lawyer John M. Stewart.

“If you are going to be competent in the practice of law, you have to understand technology related to your practice area,” Stewart told The Florida Bar News in 2015. “How do you do that? Through association — you hire an expert to associate with — or through study.”

The change was a surprisingly easy sell, Stewart told Victor Li at the ABA Journal. “I think everyone recognized that lawyers could benefit from more education, both when it comes to technology and in general.”

So, what do you think?  Will other states follow suit and require technology CLE as well?  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.

Janice Jaco and Brandye Fenn of LTC4: eDiscovery Trends

During the recent ILTACON conference (wrap-up post about the conference here), I had an opportunity to speak with several thought leaders that are involved with various educational initiatives in the eDiscovery industry, which spurred an idea to conduct a thought leader interview series of leaders within those organizations.  So, I will be publishing interviews with those thought leaders over the next few weeks.  Unlike the annual LegalTech New York (LTNY) interviews, I won’t be publishing a schedule for these (I’m actually still trying to line up a couple of those interviews post-show), but you will see them sprinkled in with regular blog posts over the next few weeks.

Today’s thought leaders are Janice Jaco and Brandye Fenn of the Legal Technology Core Competencies Certification Coalition (LTC4).  ACEDS’ 2015 eDiscovery Person of the Year, Janice, is the senior eDiscovery Project Manager for boutique litigation powerhouse Keesal, Young & Logan (KYL).  Janice’s professional volunteer work includes extensive involvement in authoring LTC4’s eDiscovery Core Competency, participation in ACEDS’ CEDS Exam Standard Setting Exercise, and updating ACEDS’ University online content.  Janice also plays an important role in shaping the “KYL Keeps You Learning” Framework, which has produced two ILTA Distinguished Peer Award winners and has led to KYL being the first firm in the world to pass the Procertas’ Legal Technology Assessment in 2015 as well as the first-ever recipient of ACEDS Law Firm e-Discovery Department of the Year award in 2016.

Brandye is the Litigation Support Manager at Ford Harrison LLP. With more than 28 years’ of law firm experience as a litigation paralegal, Brandye is responsible for managing eDiscovery projects for the firm’s 20+ offices, nationally. In 2011, she founded the FordHarrison Litigation Support Department and, through her extensive knowledge of eDiscovery best practices and industry standards, established and implemented new review and processing workflows and procedures. She is responsible for the oversight and management of the firm’s litigation technology and provides technical guidance to attorneys and clients on all phases of the EDRM and leads the firm’s e-discovery budgeting, forecasting, and technology initiatives. In 2015, she provided a cost benefit analysis in support of implementing an innovative cost-recovery model for recouping the firm’s litigation support services which gave clients better control over their eDiscovery project costs while allowing the firm to remain competitive with the latest technology.

Both Janice and Brandye were members of a team of litigation support professionals charged with developing the eDiscovery Core Competency (ECC) Learning Plan of LTC4. Over a 21-month period, the team collaborated and created scenario-based training modules to define the core competency standards for attorneys and legal professionals required to measure e-discovery competency.

For those readers who haven’t heard of it, what can you tell us about LTC4?

Janice: In 2010, a group of like-minded industry people got together and realized that they were creating content and training materials and learning guidelines independently.  They thought that it would be great if they pooled resources together to respond to client demand for proof of efficiency and competency and did that by pooling resources across the industry to create industry standard competencies that could be the basis for that proof, which would be the certification.  From that genesis, LTC4 was born.  Today, there are now ten learning plans, including the new Electronic Discovery Core Competency learning plan that has just been peer reviewed and released.

Firms are free to develop their own training programs around those learning plans.  Then, a trainer at a firm could submit documentation demonstrating that a certain user in the firm has completed the training program associated with a particular learning plan and receive a certification.

There are vendors who train to the program and provide the LTC4 certification.  I can tell you that we have been utilizing our certifications in responses to requests for proposal from clients and potential clients.  We feel that this “proof learning” is a great way to attract and retain clients, so, from a business perspective, we feel that the ROI is there.

Brandye: I think clients are also adopting it.  They are going to their outside counsel and saying if we’re doing this, we want you to show us that you can do this as well, and that you have a base level of knowledge.  Whether the law firms were required to do this by their clients or whether they felt like they needed to do this just on their own, either way it’s become a great marriage.

Janice: I think the law firm that’s proactive and can be on (if not the “bleeding edge”) the leading edge of these changes will be in the best position for continuing to thrive and maintaining its market position.  You don’t want to be that firm waiting for the client to tell you that you need to do it.

Brandye: Or be asked for it in an RFP where you have to say, “Well, that’s part of our plan for next year.”

You have mentioned the eDiscovery learning plan, what are the others?

Janice: They are: Legal Documents, Managing Documents and E-mails, Collaborating with Others: E-Mailing and Sharing Documents, Time and Billing, Road Warriors, Data, Reports and Exhibits, Security, Working with Clients (CRM), Presentations and eDiscovery/eDisclosure.  You can find out more about the learning plans at http://www.ltc4.org/learning-plans/.

Since we’re an eDiscovery blog, our readers would be specifically interested in the eDiscovery plan.  What can you tell me about that plan that was just released?

Brandye: I was part of the group that developed the plan and it took us 21 months.  It was such a blur of fun and camaraderie (laughs) and multiple phone calls and Google docs.  What we did was try to approach it from a standpoint of things you need to know, things you should know and things you must know.  Then we flipped it and determined, for each of those things, who needs to know it and why.

When I started this process, I did not know anything about LTC4.  Bonnie Beuth (Chair of LTC4) called, explained what the project was about and asked if I’d like to help.  I agreed to help and talk to others about it and, the next thing you know, I was locked in and responsible for deliverables.  The process was so collegial, with everybody addressing the problems from a unique standpoint.  We even had someone from the UK, Andrew Haslam, to provide an international perspective.  And, it was one of the most enlightening experiences.

Janice: It was for me too.

Brandye: I learned so much.  You’re “stuck in a bubble” in your own world of your processes, your workflow, your people and what they know and don’t know.  Working with people in the group you get a lot of different perspectives on how they do things, which can be quite a bit different from how you do them.  It’s really fantastic to get those different perspectives and it really made a true believer out of me.

We took it in steps, eDiscovery steps, and tried to keep it grouped to the EDRM workflow – loosely – and also real-world scenarios.  Such as, what happens when you receive data and what happens when you need to produce a group of documents?  So, we took real world problems and worked to identify solutions to those problems.  We worked to identify what an attorney should do, what a paralegal should do, what a lit support person should do – and took it to its natural conclusion in each of those sections.

Janice: In my experience, there is sometimes a disconnect between what attorneys think they need to know to be competent and what lit support managers like Brandye and I think they need to know to be competent.

Brandye: Or even what the courts think they need to know to be competent.  I’ve heard Judge Peck say dozens of times to attorneys this is what you need to know and they sometimes still don’t recognize it.

Janice: For example, they sometimes need reminders to pursue FRCP Rule 502(d) orders in federal court cases where significant email volumes are expected to be produced.  The task is not necessarily one that presents as part of the standard litigation workflow.

Brandye: Or they’re still doing “drive by” meet and confers.

Janice: So, I googled to try to find something similar and the only thing that I found that was remotely close to the ECC Learning Plan was the EDRM Talent Matrix, which talks about tasks in eDiscovery and the different talent typically best suited to performing these tasks.  For example, the lawyer isn’t usually the person pushing the buttons to get a production out.  In the course of working with lawyers and our clients), I try to explain why I think an approach, tool or process is the best fit for the current case or scenario.  Over the years I have had team members question why I think my recommendation is the best one and even whether they need to know that.  A learning plan like this one is a way to validate your recommended people, process and technology so lawyers can competently supervise my work and even clients could validate the workflow and recommendations.  Governing bodies like the American Bar Association or the California State Bar are being clear that you don’t have to be able to do all ediscovery tasks yourself, but you’re going to have to be able to effectively supervise someone like me to ensure that I’m doing the right thing for the clients in the most efficient, just and speedy way.

So, for the first time ever, we had a group of like-minded thought leaders collectively building something that we all could agree at the end was a collection of basic skills needed to execute these ediscovery scenarios.  There’s nothing like that in the industry.

Brandye: You can talk about rules and work processes, but putting them in context of scenarios and what to do in those scenarios is key.  It helps people match their situation to what they’re supposed to do, so they can say “I’ve been in this situation before and I know exactly what they’re talking about and I know exactly what to do.”

Janice: It enables people to say “I’ve had this scenario before, but I’ve never had these nine steps to address it in this way before like I do now.”  I think trainers everywhere are going to be so relieved to see something that backs up what they’ve been saying to lawyers for years.  Sometimes, like it is with kids when they listen to a teacher in school after they’ve been told the same thing over and over again by their parents–you don’t necessarily listen to the ones closest to you.  You need a credible outside source to reinforce what internal people have been saying.  Attorneys sometimes just need to hear it from someone else before they believe it.  And, that’s what the lesson plans provide.

How does one become a member of LTC4?

Janice: You can go to the LTC4 site here for more information on how to join and access the online application.  It’s easy for any law firm to join.  There is a membership fee which is based on size of firm.  There are also rates and plans for law schools, non-profit organizations and vendors.  And, you get access to all of the learning plans when you join.

Brandye: And, it’s not just about the learning plans, it’s a truly collaborative organization.  You also get support from LTC4 and from the members within the organization.  If you’re working in an area, for example, labor employment law, you can reach out to that community for assistance.

Janice: For example, security is one of the learning plans and mobile security is an important topic.  There are members who have that expertise who support you and help you create documentation through the certification, which you can then use to market yourself to clients and the prove you have the skills in cybersecurity.

Thanks, Janice and Brandye, 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.

Less Than Half the States Have a Technology Competence Requirement for Attorneys: eDiscovery Trends

As you all know, I love a good infographic.  This one reflects the states that require attorneys to stay abreast of changes in technology relating to law practice.  Does your state have a technology competence requirement for its attorneys?

This infographic is available courtesy of Percipient, which is an eDiscovery and legal technology company that provides managed document review and managed eDiscovery services.  As they note in their post about the topic, in 2012 the American Bar Association amended Comment 8 to Model Rule of Professional Conduct 1.1 (Duty of Competence) to address changes in technology. That Comment now reads as follows:

“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

According to Percipient, twenty-four states have either adopted the amended comment or otherwise require attorneys to stay abreast of changes in technology relating to law practice, with twenty-two of them effective today.  The other two states (represented in light blue on the map) – Washington State (September 1, 2016) and Wisconsin (January 1, 2017) – will be effective within the next few months.  So, by their assessment, less than half of all states have a technology competence requirement for its attorneys.

I have no reason to believe that they missed any states that have such a requirement, but they note to inform them if they missed any.  Regardless, the infographic (available here as a standalone PDF) is a great resource for identifying the current status of technology competence requirements across the country.  Thanks, Percipient!

So, what do you think?  Does your state have a technology competence requirement for attorneys?  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.

 

Is a Blended Document Review Rate of $466 Per Hour Excessive?: Best of eDiscovery Daily

Even those of us at eDiscovery Daily have to take an occasional vacation (which, as you can see by the picture above, means taking the kids to their favorite water park); however, instead of “going dark” for a few days, we thought we would take a look back at some topics that we’ve covered in the past.  Today’s post is our all-time most viewed post ever.  I guess it struck a nerve with our readers!  Enjoy!

______________________________

Remember when we raised the question as to whether it is time to ditch the per hour model for document review?  One of the cases we highlighted for perceived overbilling was ruled upon here.

In the case In re Citigroup Inc. Securities Litigation, No. 09 MD 2070 (SHS), 07 Civ. 9901 (SHS) (S.D.N.Y. Aug. 1, 2013), New York District Judge Sidney H. Stein rejected as unreasonable the plaintiffs’ lead counsel’s proffered blended rate of more than $400 for contract attorneys—more than the blended rate charged for associate attorneys—most of whom were tasked with routine document review work.

In this securities fraud matter, a class of plaintiffs claimed Citigroup understated the risks of assets backed by subprime mortgages. After the parties settled the matter for $590 million, Judge Stein had to evaluate whether the settlement was “fair, reasonable, and adequate and what a reasonable fee for plaintiffs’ attorneys should be.” The court issued a preliminary approval of the settlement and certified the class. In his opinion, Judge Stein considered the plaintiffs’ motion for final approval of the settlement and allocation and the plaintiffs’ lead counsel’s motion for attorneys’ fees and costs of $97.5 million. After approving the settlement and allocation, Judge Stein decided that the plaintiffs’ counsel was entitled to a fee award and reimbursement of expenses but in an amount less than the lead counsel proposed.

One shareholder objected to the lead counsel’s billing practices, claiming the contract attorneys’ rates were exorbitant.

Judge Stein carefully scrutinized the contract attorneys’ proposed hourly rates “not only because those rates are overstated, but also because the total proposed lodestar for contract attorneys dwarfs that of the firm associates, counsel, and partners: $28.6 million for contract attorneys compared to a combined $17 million for all other attorneys.” The proposed blended hourly rate was $402 for firm associates and $632 for firm partners. However, the firm asked for contract attorney hourly rates as high as $550 with a blended rate of $466. The plaintiff explained that these “contract attorneys performed the work of, and have the qualifications of, law firm associates and so should be billed at rates commensurate with the rates of associates of similar experience levels.” In response, the complaining shareholder suggested that a more appropriate rate for contract attorneys would be significantly lower: “no reasonable paying client would accept a rate above $100 per hour.” (emphasis added)

Judge Stein rejected the plaintiffs’ argument that the contract attorneys should be billed at rates comparable to firm attorneys, citing authority that “clients generally pay less for the work of contract attorneys than for that of firm associates”:

“There is little excuse in this day and age for delegating document review (particularly primary review or first pass review) to anyone other than extremely low-cost, low-overhead temporary employees (read, contract attorneys)—and there is absolutely no excuse for paying those temporary, low-overhead employees $40 or $50 an hour and then marking up their pay ten times for billing purposes.”

Furthermore, “[o]nly a very few of the scores of contract attorneys here participated in depositions or supervised others’ work, while the vast majority spent their time reviewing documents.” Accordingly, the court decided the appropriate rate would be $200, taking into account the attorneys’ qualifications, work performed, and market rates.

For this and other reasons, the court found the lead counsel’s proposed lodestar “significantly overstated” and made a number of reductions. The reductions included the following amounts:

  • $7.5 million for document review by contract attorneys that happened after the parties agreed to settle; 20 of the contract attorneys were hired on or about the day of the settlement.
  • $12 million for reducing the blended hourly rate of contract attorneys from $466 to $200 for 45,300 hours, particularly where the bills reflected that these attorneys performed document review—not higher-level work—all day.
  • 10% off the “remaining balance to account for waste and inefficiency which, the Court concludes, a reasonable hypothetical client would not accept.”

As a result, the court awarded a reduced amount of $70.8 million in attorneys’ fees, or 12% of the $590 million common fund.

So, what do you think?  Was the requested amount excessive?   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.