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Firm IT Director Predicts “Carnage” in Legal Tech Consolidation: eDiscovery Trends

Not since Clubber Lang predicted “pain” in Rocky III has the state of legal tech consolidation been stated quite this way.  Is that good news or bad news for consumers of legal tech software and services?

As reported in Legaltech News (Consolidation is Inevitable in Legal Tech, Says Firm IT Director, written by Simon Lock), major consolidation within the legal tech market is unavoidable, according to the director of IT at international law firm Osborne Clarke.  That’s probably because it’s already happening as we speak…  ;o)

Speaking at Legal Week’s Strategic Technology Forum, Europe in Spain, Nathan Hayes said that the most successful legal tech ventures would not come out of one specific institution but instead via amalgamations and joint ventures between traditional law firms, accountants and legal tech firms.

“It’s not going to be one of those, it’s going to be a merging of them,” Hayes argued.

“We’re already beginning to see law firms buying up legal tech companies; law firms partnering with academia and legal tech, having stakes in them, investing in them,” he said. “I think we’re going to see different entities evolving rather than these siloed organisations.”

“We’re in a situation where we’ve just seen a massive explosion in legal tech which is great,” said Hayes.

“The carnage that will ensue though, there’s going to be a lot of consolidation, which is going to be incredibly helpful for people like me.”

Yes, he actually referred to it as “carnage”.

Stephanie Hamon, the former managing director and head of external engagement at Barclays, also expected greater collaboration to follow.

“The market is highly fragmented, so when you’re on the client side, you get solicitation all the time and it’s really hard to see the wood from the tree,” she said.

“It’s true for the law firms, and it’s even worse for legal tech.”

Also this week, Rob Robinson posted the eDiscovery Mergers, Acquisitions, and Investments in Q2 2019 on his excellent Complex Discovery blog.  Rob notes that there “have been at least 12 M&A+I events in the eDiscovery ecosystem during Q2 2019”.  That’s the second most in Q2 in the last five years – only last year with 15 events had more.  That’s after this Q1 had the most events in the past five years for Q1 with 15 events and last year’s Q1 was the second most with 14 events.  So, if that doesn’t show that the pace of M&A+I events is accelerating, I don’t know what does.  “I pity the fool” who doesn’t see that!  ;o)

So, what do you think?  Do you predict “carnage” in the consolidation of legal tech companies?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © United Artists

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

My Guest Post for Complete Legal: eDiscovery Best Practices

You might think that since I write a daily blog, I have no time to do any other writing on the side.  And, a lot of times, that’s true.  However, I wrote a guest blog post recently for our good friends and Kansas City partners at Complete Legal and so I’ve decided to point to that blog post for today to give our readers a chance to read that post.

The blog post is titled Leveraging Your Services Provider to Meet Today’s eDiscovery Challenges: eDiscovery Best Practices and it’s on Complete Legal’s site here.  We’ve been partners with Complete Legal for several years and have worked with co-founders Jeff Dreiling and Eric Kelting for several years before that.  In the post I noted that in this era of automation in eDiscovery, you might think that the need for eDiscovery services is dwindling, but nothing could be further from the truth – the need to partner with an experienced eDiscovery services provider to ensure a successful outcome to your case is more important than ever.

I covered several topics in the post, including some interesting statistics that illustrate that the demand for eDiscovery services is as strong as ever, why you need an eDiscovery provider, making sure you select a provider with the right experience, getting your eDiscovery “geek” involved early and often, working with your eDiscovery service provider as a partner (not as a vendor) and how familiarity breeds “content” – which is to say that developing a comfort level with the right vendor can be a beautiful partnership that lasts for years.  That’s something we can all appreciate!

Again, the post is here, so please check it out!  Consider it today’s post, just in a different place.  See what I did there?  Sneaky, huh?  :o)

So, what do you think?  How do you work with your eDiscovery services provider?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Investment is Changing the eDiscovery Market as We Speak: eDiscovery Trends

Yesterday, we talked about how eDiscovery business confidence seems to tend to take a downturn every summer.  But, when it comes to private equity firms’ investment in eDiscovery companies, eDiscovery business confidence seems to be stronger than ever.

As reported in LegalTech News (E-Discovery Market’s Demand Attracting More Investors Than Ever Before, written by Rhys Dipshan), the author notes that over the past few years, private equity firms have invested in over a dozen eDiscovery companies.  Since January 2018, have played a leading role in reshaping the eDiscovery market.  Some examples:

  • Xact Data Discovery was acquired by private equity firm JLL Partners in January 2018;
  • San Francisco-based private equity firm GI Partners was behind the March 2018 merger of Consilio and Advanced Discovery;
  • In October 2017, Knox Capital led a funding round for eDiscovery and forensics provider HaystackID, which then supported HaystackID’s April 2018 acquisition of Envision Discovery and Inspired Review;
  • In late May 2018, another New York City-based private equity firm, Leeds Equity Partners, also moved into the e-discovery industry by investing in Exterro. While the exact investment amount was not disclosed, Exterro told Legaltech News it was a “nine figure deal”;
  • And yet another private equity firm, Peak Rock Capital, invested in eDiscovery company (and sponsor of this blog) CloudNine and helped fund its March 2018 acquisition of the LexisNexis eDiscovery product suite. A spokesperson for Peak Rock Capital said the firm invested in the CloudNine because it “saw great potential in CloudNine as a high growth software-as-a-service provider of processing and review solutions.”

So, what’s behind private equity’s appetite for all things eDiscovery? The author states that “[a]t its core, it stems from private equity’s belief that demand for e-discovery technology and services remain strong for years to come.”

Private equity firms seem not to be too worried that their eDiscovery picks will be crowded out of the market anytime soon. Peak Rock Capital, for instance, believes that there “is ample demand in the growing e-discovery segment. There’s been consolidation on the services side, but the market is quite large, and we continue to see robust demand from new customers.”

As I’ve noted several times on this blog, a great resource for a list of mergers, acquisitions and investments is Rob Robinson’s Complex Discovery blog where he lists industry transactions back as far as November 2001 – which is even before Kroll acquired Ontrack!  Now, both names are absorbed in acquisition.  We’ve certainly seen several large transactions over the years, but if you look at the most recent transactions (since May 1, 2018), we have at least three “nine figure deals” in the last nine months.  That’s big business!

So, what do you think?  Are you surprised in the amount of investment in the eDiscovery industry?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Public or Private Isn’t the Only Question You Should be Asking about Cloud Solutions: eDiscovery Best Practices

In yesterday’s post detailing the discussion of industry experts regarding the adoption of cloud technology within the legal industry, several points of discussion were discussed, including the differentiation between “public cloud” and “private cloud”.  It’s important to know the difference between the two implementations and why you might consider selecting one over the other (and what you need regardless of which one you select).  But, public or private cloud isn’t the only question you should be asking about a cloud solution.

To begin to understand what we’re talking about, it’s important to define three terms typically related to cloud computing: Infrastructure as a Service (IaaS), Platform as a Service (PaaS) and Software as a Service (SaaS):

  • Infrastructure as a Service (IaaS) is a service model that delivers computer infrastructure on an outsourced basis to support enterprise operations. Typically, IaaS provides hardware, storage, servers and data center space or network components.
  • Platform as a service (PaaS) is a category of cloud computing services that provides a platform allowing customers to develop, run, and manage web applications without the complexity of building and maintaining the infrastructure typically associated with developing and launching an app.
  • Software as a service (SaaS) is a software distribution model in which a third-party provider hosts applications and makes them available to customers over the Internet.

This diagram, courtesy of the site virtualclouds.in, does a good job of illustrating examples of each.

As you can see, the software application residing on top of the cloud platform and infrastructure are separate and unique and don’t necessarily have to be from the same provider.  Sometimes they are, like in the case of Office 365 hosted in the Microsoft Azure platform; other times they aren’t, like in the case of Salesforce.com hosted in Amazon Web Services (AWS).

Here’s another diagram, courtesy of YourDailyTech, which illustrates the different components to the solution and what you manage in a) an on-premise implementation, b) an IaaS implementation, c) a PaaS implementation and d) a SaaS implementation.

As you can see, there’s a lot of components to manage.  A lot of organizations are managing many (if not all) of those components anyway to support various internal needs for their organizations, but many organizations are turning to IaaS, PaaS and SaaS implementations for at least some of their solution choices.  The choices they make are based on several factors, including costs and security requirements.  There’s no right or wrong answer here – each choice can be appropriate depending on the organization and its needs.

However, you know the saying that a chain is only as strong as its weakest link?  Well, that holds true for cloud solutions as well.  Whether you favor a public cloud or a private cloud approach, you still have to vet the software provider on top of that public or private cloud infrastructure.  Obviously, when evaluating comparable software solutions, it goes without saying (but I’ll say it anyway) that you should look at the features of the different solution choices and evaluate them against the needs of your organization.

But, you shouldn’t stop there.  You also want to evaluate the companies offering the different solution choices as well.  How long has each company been in business?  What’s the average tenure of their top leadership team?  What’s the average tenure of their support and services teams?  You don’t want to select a “fly-by-night” company that could be gone tomorrow or a company that has a “revolving door” in key positions where you’re continually dealing with someone new in support or services.  Familiarity breeds…comfort – not contempt (at least when it comes to a cloud SaaS provider).

So, what do you think?  How closely do you vet the SaaS company providing the solution in a cloud solution selection?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

The Speed of Migration of Legal to the Cloud is Debatable: eDiscovery Trends

How fast is the legal industry moving to the cloud?  And, what is holding some law firms back from migrating to the cloud?  These and other questions were discussed in a recent online discussion among industry experts.

In an article sponsored by ReplyAll on Bloomberg Law (Live Conversation: Making Sense of Legal’s Migration (or Not) to the Cloud), Zach Abramowitz moderated the discussion and introduced the topic as follows:

“The migration of the legal industry to the cloud has been, much like the word migration would suggest, slow and deliberate. Although Fortune 500 companies are using cloud based technology to track everything from their back office to their marketing and sales teams — and (as anyone who’s been through an airport can tell you) all the biggest tech companies in the world like Microsoft, Amazon and Alibaba are competing to offer you cloud storage and related services — many law firms are still insisting on keeping client data behind the firewall… Many of the best legal technology start-ups tell me that their #1 obstacle in selling their product is law firm resistance to the cloud. So, as we kick off this conversation, the question I’d like to start tackling today, is what should be the industry standard (we can discuss that too), but also begin by trying to better understand the disconnect between law firms and the rest of the world. With all the information available, is it rationale for law firms to still hesitate when it comes to the cloud?”

Panelists included:

  • Alma Asay, Founder of Allegory which was acquired last year by Integreon (where Alma is now the Chief Innovation Officer)
  • Dan Baker, Chief of Staff and Director of Legal Operations at Ancestry.com
  • Adam Cohen, Managing Director at Berkeley Research Group
  • Heidi Fessler, member of the Litigation Department and the eDiscovery, Data and Document Management Practice Group at Barnes & Thornburg
  • Bryon Bratcher, Managing Director at Gravity Stack LLC and formerly Director of Practice Solutions at Reed Smith LLP

Here are some of the observations from the panelists:

Asay: “Law firms regularly use private cloud providers, we simply don’t call them that. Legal service providers like Integreon regularly host data for their clients, effectively offering private cloud services, and are well adopted by law firms… Law firms know that they will fight tooth and nail against turning over their clients’ data, and they’re quite sure that service providers that specialize in the legal industry will fight just as hard (or risk never having another client). However, law firms have been less sure about how big companies servicing many different industries would proceed in the face of an order to release data in their possession. This is an issue that has come up time and time again, even as great strides have been made by law firms to understand and accept the benefits of the cloud… I think you’d be surprised how many professionals inside law firms quietly are advocating to use the cloud and recognize the benefits over hosting data inside the law firm, but they don’t feel empowered to execute until the banks do. Just as (supposedly) no one ever got fired for choosing IBM, there is still a sense that no one gets fired for NOT choosing the cloud.”

Cohen: “I think this (the question whether Amazon is handing over client data} is a real issue for some, but it’s not the overriding issue, which is a fundamental ignorance as to the allocation of risk in the cloud and how to deal with it. If you don’t understand the services you are buying, then you can’t assess security appropriately–something lawyers are required to do by virtue of their professional responsibilities.”

Cohen also quoted the headline from this press release “Threat Stack Analysis Reveals 73% of Companies Have Critical AWS Cloud Security Misconfigurations” where Threat Stack, a cloud security and compliance management company, announced the findings of an analysis of more than 200 companies using AWS that revealed nearly three-quarters have at least one critical security misconfiguration, such as remote SSH open to the entire internet.

Baker: “The concern – benchmarked with several large firms – is that cloud solutions may result in a scenario where the cloud provider could read the law firm’s files/email, if the provider wanted to. This could violate privilege or provide alternate, and unexpected, routes of discovery…{With regard to a question from Abramowitz as to whether public cloud providers simply change their terms of service to get law firms comfortable or is legal such small fry for them that they wouldn’t bother} Through a certain lens, yes. Through another lens, there’s booming growth in legal tech – especially surrounding contract and litigation discovery. I expect that public cloud providers will need to update their terms of services to get law firms more comfortable, and that it will be the discovery firms driving the change.”

Bratcher: “Ultimately many law firms are adopting a hybrid approach between a private cloud with a smaller public provider coupled with a cloud area with the larger public providers like AWS or Azure. I would see that trend continuing for the foreseeable future.”

Fessler: “It is hard for those outside of the law firm environment to understand the level of reticence to adopt “new” technology within the legal world. Most attorneys feel an enormous responsibility to keep their client data secure and under their personal lock and key. Unfortunately, this perception of control and security does not equate with fact. It is still common to find otherwise sophisticated attorneys who refuse to use eDiscovery tools and technology and instead running review using Excel spreadsheets. At times this hesitation is also the result of a misdirected drive to reduce legal spend.”

These are just a few snippets from an overall interesting conversation regarding legal’s adoption of the cloud.  Click here to view the entire conversation.  Tomorrow, I’ll have some thoughts about cloud selection and why the question of private or public cloud isn’t the only one you should be asking.

So, what do you think?  Do you think that the legal industry is still slow to adopt the cloud?  If so, why do you think that is?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

One ALSP Exits, Another Prepares to Enter: eDiscovery Trends

The topic of Alternative Legal Services Providers (ALSPs) is always an interesting one, with considerable discussion at this year’s Legaltech® New York conference and my colleague, Tom O’Connor, recently wrote a white paper on the topic for our blog (a four part series here).  They can also be somewhat controversial.  Looks like one existing ALSP is shutting down, while another one (coming soon) is promoting itself to be “Uber for lawyers”.  Hmmm…

Going Out: As reported by Gabrielle Orum Hernández in Legaltech® News and also reported by Bob Ambrogi in his LawSites blog, legal directory Avvo is shutting down its controversial Avvo Legal Services, a service that provides fixed-fee, limited-scope legal services through a network of attorneys.  Internet Brands, the company that acquired Avvo last January, has decided that the service does not align with its business and focus, according to a letter sent by B. Lynn Walsh, Internet Brands’ executive vice president and general counsel, to the North Carolina State Bar last month.

Avvo has faced a number of bar association challenges to its Avvo Legal Services offering, including the New Jersey Supreme Court, which issued an ethics opinion last year barring the service from the state because of the offering’s use of what they determined was improper fee splitting. State bar groups in New York, Virginia, Ohio, South Carolina and Pennsylvania issued similar ethics orders.  But other states, like North Carolina and Illinois, were more open to the service.

Upon acquisition, Internet Brands planned to fold Avvo into its other legal services portfolio alongside brands like Lawyers.com, Nolo and Martindale-Hubbell. However, by April, most of Avvo’s leadership, including former CEO Mark Britton, CFO Monica Williams, CPO Sachin Bhatia, CTO Kevin Goldsmith, and chief legal officer Josh King, had made plans to depart the company.

Coming In: As reported by Ian Lopez in Legaltech® News, Kevin Gillespie, a self described “serial entrepreneur,” believes he’s found a way to leverage tech for lower-cost legal services while managing to comply with these rules. His answer is mobile platform “Text a Lawyer,” an app-based service where a consumer fires off a legal question into the ether and lawyers flock to answer them.

Describing the platform as “Uber for lawyers,” Gillespie told Legaltech News that Text A Lawyer functions via two apps, one for consumers and one for lawyers. He noted that both will be free for download, though the client app charges a “flat one dollar software license fee” per question submitted and a four dollar as an “attorney verification fee,” which includes identity and license verification services. Potential clients are charged $20 (and “some cents” for a credit processing fee) per initial question, which includes a brief discussion with a lawyer, then $9 per follow up question. Clients can then print out the Q&A and use it as needed.

“I figure everyone’s got 20 bucks. So I’m trying to bridge the gap between lawyers, at hundreds dollars an hour, that blue collar Americans cannot afford … with what they can afford,” Gillespie said. “I’ve [tried] many different pricing models, and I keep coming back to that.”

Like an ride-sharing service, the app functions as a marketplace for free agent service providers to profit. In this case, that agent is the lawyer, who collects a fee of $15 per first question and $8 a follow up. Also like a ride-sharing service, users can rate attorneys, though Gillespie said that these ratings are “kept internal” and only used to connect a user “with the best lawyer available.”

“It’s the Yelp approach, except the clients never see them,” Gillespie added.

While not yet available to consumers, Gillespie plans on issuing a beta version of Text A Lawyer in August or September in Oregon and Washington, and he has plans on eventual expansion to all 50 states. He noted that he designed the app “from the beginning” to be “as close as possible” to ethically compliant with RPCs in all 50 states. “There are a couple of states who will have their heads buried in the sand, their bar associations, I mean. [But] there’s nothing you can do about that,” he added.

So, what do you think?  Will the “Text a Lawyer” succeed in gaining bar association approval where Avvo failed?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Today is the Day for eDiscovery for the Rest of Us!: eDiscovery Webcasts

Does it seem like eDiscovery technology today is only for the “mega-firms” and “mega-cases”? What about for the “rest of us”? Are there solutions for the small firms and cases too? What does the average lawyer need to know about eDiscovery today and how to select a solution that’s right for them?  Find out in our webcast today!

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast eDiscovery for the Rest of Us. In this one-hour webcast that’s CLE-approved in selected states, we will discuss what lawyers need to know about eDiscovery, the various sources of data to consider, and the types of technology solutions to consider to make an informed decision and get started using technology to simplify the discovery process. Topics include:

  • How Automation is Affecting All Industries, including eDiscovery
  • Drivers for eDiscovery Automation Today
  • Challenges from Various Sources of ESI Data
  • Ethical Duties and Rules for Managing Discovery
  • Getting Data Through the Process Efficiently
  • Small Case Examples: Ernie and EDna
  • Key Components of an eDiscovery Solution
  • Types of Tools to Consider
  • Recommendations for Getting Started

As always, I’ll be presenting the webcast, along with Tom O’Connor, who wrote a four part blog post series that we have published on the blog in the past couple of weeks.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to know what eDiscovery solution options there within an affordable budget, this is the webcast for you!

So, what do you think?  Do you feel like you can’t afford eDiscovery technology?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

eDiscovery for the Rest of Us: eDiscovery Best Practices, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO and Why Is TAR Like a Bag of M&M’s?. Now, Tom has written another terrific overview regarding eDiscovery for the smaller cases titled eDiscovery for the Rest of Us that we’re happy to share on the eDiscovery Daily blog (and will cover later this month in a webcast).  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part One was published last Tuesday, Part Two was published last Thursday and Part Three was published on Tuesday.  Here’s the final part, Part Four.

The EDna Challenge, 2016

In 2016, Craig Ball revisited the Edna challenge with a new set of parameters and a panel at the annual ILTA conference on which I was privileged to be a participant. The panel sought what Craig called “… a re-examination of EDna options circa 2016 on a bigger budget.” https://craigball.net/2016/04/15/edna-still-cheap-and-challenged/ .

In this new challenge, Edna had a Zip file on a thumb drive containing collected ESI in various formats: 10 custodians with ESI PSTs for six of them, four MBOX take outs from Gmail for the other four and a combination of  word processed documents, spreadsheets, PowerPoint documents, PDFs and a few scanned paper documents for all ten. She estimated the contents will unzip to about 10-12 GB with somewhere between 50,000 to 100, 000 documents total.

The goal was to conduct a paperless privilege and responsiveness review of the material in-house, sharing the task with an associate and legal assistant.  All staff had high-end, big screen desktop PC running Windows 8.1 with MS Office 2016 and Adobe Acrobat 11 Pro installed and the office’s network file server had ample space for the document collection.

The specific goals were:

  • Efficient workflow
  • Robust search
  • Ability to process relevant metadata
  • Simple document tagging and production identification
  • Effective tracked deduplication
  • Review may take up to 90 days, and the case may not conclude for up to two years.  All review, hosting and production costs must be borne by the budget.

Edna didn’t own a review tool and was willing to spend up to $5,000.00 total for software, vendor services, SaaS, etc.  Craig’s only restrictions on responses were “She won’t spend a penny more.  You can’t loan her your systems or software.  You can’t talk her out of it.  Pricing must mirror real-world availability, not a special deal.”

The good news was that the increase in budget accompanied by the shift to Web based solutions made a dramatic change in the responses. As one independent analyst noted, if kept to 3 months hosting, more than 70% of the companies he worked with could meet the challenge. Brad Jenkins, CEO of CloudNine (the host of this article) noted that the CloudNine software would allow Edna  “… access to a complete eDiscovery platform for processing, review, and production. She can upload her data for automated native processing, review her data in CloudNine’s integrated review tool, and produce her data in almost any format.”  All for under the limit of the challenge.

What’s Next?

The next step in the market of technology for the rest of us is growth of Internet based tools.  We are now seeing even more budget conscious solutions in a SaaS environment, solutions that work with common native format files where you host your own data with programs installed locally that are able to accommodate smaller data collections.

Some of these are well-established companies such as Relativity or Ipro Tech and others are newer companies such as CloudNine, Digital War Room, Logikcull, CS Disco and Everlaw. Some of them also incorporate some form of front-end analytics to significantly reduce the amount of data to be processed as well as TAR or predictive coding technology to enable faster review of documents.

Conclusion

But the ultimate solution is more than just knowing the rules, avoiding e-jargon and understanding the technology. In our estimation, it is the process not the technology.

We are not alone in this appraisal. Technologist John Martin once commented, “It’s the archer not the arrow.” Craig Ball says, “The key consideration is workflow”.

The fact is that technology is not the key to successful management of e-discovery in small cases. Rather, the single most effective way to keep eDiscovery costs low is to work with your opposition in a cooperative manner so you can stipulate to the use of low cost solutions.

We all must change to the new paradigm of working in the digital world. In the words of The Hon. Lee Rosenthal, former Chair of the Standing Committee of the Judicial Conference, “Litigation habits and customs learned in the days of paper must be revisited and revised. The culture of bench and bar must adjust.”

Craig Ball described it as “throwing down the gauntlet in the Edna Challenge when he said, “So, how about it e-discovery industry? Can you divert your gaze from the golden calf long enough to see the future and recall the past? Sam Walton became the richest man of his era by selling to more for less. There’s a fast-growing need…and a huge emerging market.  The real Edna Challenge is waiting for the visionaries who will meet the need and serve this market.”

I think we’re very close to being there.

So, what do you think?  Do smaller litigation cases get shortchanged when it comes to eDiscovery technology?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

eDiscovery for the Rest of Us: eDiscovery Best Practices

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO and Why Is TAR Like a Bag of M&M’s?. Now, Tom has written another terrific overview regarding eDiscovery for the smaller cases titled eDiscovery for the Rest of Us that we’re happy to share on the eDiscovery Daily blog (and will cover later this month in a webcast).  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

With the high number of eDiscovery vendors and the huge amount of ED conferences, webinars and seminars, you might ask why we would talk about eDiscovery for “the rest of us”.  eDiscovery was initially seen as the exclusive domain of large firms with large cases in Federal court.  But the fact is that firms of all sizes now must know how to handle electronic discovery efficiently and cost-effectively. Why?

First, most attorneys in private practice are employed by law firms with fewer than 20 lawyers and, in fact, half of all U.S lawyers in private practice are solo practitioners.  Smaller firms mean smaller cases. With the increase in digital activity by people in all areas of their lives, we are now seeing e-discovery become an issue in domestic disputes, employment cases and even criminal matters. All case types handled by small firms.

And the initial Federal Rules of Civil Procedure governing ESI have now been emulated in over 2/3 of the states with even an agreed-upon e-discovery exchange protocol between the offices of the U.S. Attorney and the Federal Defenders for criminal cases finding its way into state matters. Coast-to-coast, from California to Florida and from states as populous as New Jersey to mostly rural states such as Louisiana and Alabama, e-discovery is now a local issue.

Indeed, when Bruce Olson and I first gave a presentation called eDiscovery for Small Cases at the ABA TechShow in March of 2010, we didn’t expect much of a turnout.  But the room was packed and we both realized we had struck a nerve.

Why?  Bruce and I called it the Small Case Dilemma.  We’ll explore that issue and others in this paper, as follows:

  1. eDiscovery: The Early Years
  2. The EDna Challenge, 2009
  3. The Ernie Challenge
  4. The EDna Challenge, 2016
  5. What’s Next?
  6. Conclusion

We’ll publish Part 2 – eDiscovery: The Early Years and The EDna Challenge, 2009 – on Thursday.

So, what do you think?  Do smaller litigation cases get shortchanged when it comes to eDiscovery technology?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

eDiscovery for the Rest of Us: eDiscovery Webcasts

Does it seem like eDiscovery technology today is only for the “mega-firms” and “mega-cases”? What about for the “rest of us”? Are there solutions for the small firms and cases too? What does the average lawyer need to know about eDiscovery today and how to select a solution that’s right for them?  We will discuss these and other questions in a webcast at the end of the month.

On Wednesday, May 30 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast eDiscovery for the Rest of Us. In this one-hour webcast that’s CLE-approved in selected states, we will discuss what lawyers need to know about eDiscovery, the various sources of data to consider, and the types of technology solutions to consider to make an informed decision and get started using technology to simplify the discovery process. Topics include:

  • How Automation is Affecting All Industries, including eDiscovery
  • Drivers for eDiscovery Automation Today
  • Challenges from Various Sources of ESI Data
  • Ethical Duties and Rules for Managing Discovery
  • Getting Data Through the Process Efficiently
  • Small Case Examples: Ernie and EDna
  • Key Components of an eDiscovery Solution
  • Types of Tools to Consider
  • Recommendations for Getting Started

As always, I’ll be presenting the webcast, along with Tom O’Connor, who is currently writing an article on the topic that we plan to publish on the blog in the next couple of weeks.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to know what eDiscovery solution options there within an affordable budget, this is the webcast for you!  It’s not a “Festivus for the rest of us”, it’s eDiscovery for the rest of us!

So, what do you think?  Do you feel like you can’t afford eDiscovery technology?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.