Inside eDiscovery

Information Governance – Prevention is the Best Medicine and Who Prescribes?

Traditional eDiscovery professionals and thought-leaders are expanding their scope to embrace Information Governance (IG). As this year’s cause célèbre, IG is quickly emerging as a cross-disciplinary approach to managing data and a proactive legal discipline that exploits modern data analytic technology to categorize enterprise information in anticipation of need. We have seen a lot of movement and chatter regarding IG especially with the advent of the Information Governance Initiative (www.iginitiative.com).

At heart, IG is an organizational process that seeks to organize “big data” at an institutional level to manage the constant creation of information. The concept of IG may also be characterized as risk management, litigation preparedness or litigation avoidance. On a very basic level, understanding an organization through advanced data analytics may allow entities to preventatively manage risk and develop a greater appreciation of human capital, business processes and lost efficiencies. In a world where we are often distracted by the volume of data, IG may allow us to once again focus on its value. Though IG is not strictly a legal process, it may expand the scope of client counsel and dramatically impact representation in a number of ways;
• A new services-oriented business opportunity to support client need
• Enhanced collection relevancy
• Increased collection speed
• Reduced review cost
• A deeper understanding of your client’s business practices and players

In terms of managing client data, law firms are infrequently proactive advocates…we respond to need. Law firms have assisted clients with their data/information in defensive ways for years; preservation plans, litigation holds, and data collections in response to subpoena or investigation but, these are not preventative in nature and, generally, eDiscovery has inherently been a responsive process. eDiscovery is like running to the ER for every independent issue and IG is like long-term, holistic healthcare that seeks comprehensive well-being.

So, if IG is cross-disciplinary in terms of the parties at the table, who drives the conversation and action? Are law firms driving the process on behalf of clients? Within a client’s organization, IT, Compliance, the General Counsel’s Office, HR (in terms of PII – Personally Identifiable Information or HIPAA), technology vendors and outside counsel may be involved in the conversation. As advocates, I believe that there is a powerful role for law firms (outside counsel) to direct the development of IG principles on behalf of a client to promote substantive categorization of internal data in anticipation of regulatory action or litigation.

The Ebb and Flow of eDiscovery Standards of Practice

With any particular legal field, the treatment, practice and resulting jurisprudence may ebb and flow over time with societal values and practicalities (apologies to the “strict constructionists” amongst us). An historical adherence to precedence is designed to keep us within parameters and standardized or accepted approaches to factual circumstances and subject matter quickly develop. As an example, Hart Scott Rodino is a mature practice with expected twists, turns and responses. The practice of eDiscovery is different and because it is both created and affected by technology, I believe that it will continue to evolve at dizzying speed. Inevitably, rapid technological evolution paired with the conscious conservatism and methodology of law will produce “progress” at varying rates. eDiscovery (more broadly, legal data management) is legal practice in an environment where there is a huge divide between what technology allows us to accomplish versus what our profession requires of us.

eDiscovery professionals do have guidance from primary and secondary legal sources and significant input from legal services providers. The FRCP (and impending changes), rules of professional conduct and caselaw provide a true practice framework for eDiscovery. However, this framework provides considerable flexibility on individual matters. It is in the large spaces that exist between rulemaking where eDiscovery practitioners look to policy think tanks (Sedona, EDRM, etc.), conferences, colleagues, “thought leaders” and wonks and legal services vendors for support and guidance. It is in that space that standards of practice are created client by client, firm by firm and day by day.

Although we are fundamentally constrained by reasonableness, “competence,” fairness and proportionality, the eDiscovery industry is largely motivated by comfort level, cost, client input and emerging technology. The primarily organic eDiscovery standards of practice, free-formed and tailored to specific need and context (the business of law), create a confusing array of priorities and an increase in ebb and flow as professionals are influenced by a market that (in no particular order) emphasizes predictive coding, information governance, data mining, cyber-security, etc. It also encourages a tech-centric, competitive, one-dimensional world where an irrational fear of being perceived as out-dated (though compliant) may be contrary to successful business models. Within the bounds of professional requirements, standards of practice should incorporate efficiency, superior technology, collaboration, progress and proven, defensible means.

Organizational Development is the eDiscovery Silver Bullet

The legal services industry has witnessed astonishing growth and development in the past decade. At its heart, technology has reinvented discovery and driven an ever-evolving market for products serving eDiscovery, information governance and big data. However, technology in a vacuum without complementary organizational eDiscovery architecture is like a locked door without a key. For corporations, legal services providers and law firms, the power of technology is harnessed only by eDiscovery professionals who can exploit its possibilities and bring it to life through well-designed workflows.

Is Your Organization as Advanced as Your Technology?

Because technology has become intertwined with legal practice, building an effective eDiscovery framework within a legal practice is essential to support data management solutions and to manage risk. To fulfill professional responsibility obligations and to advance client interests, I recommend that law firms and companies establish a flexible, centralized approach that:
    • incorporates evolving substantive policy/best practices,
    • constantly evaluates emerging technology and
    • adheres to an organized structure that meets the needs of clients, lawyers and staff

In a World Full of Chiefs, Where does the Buck Stop?

To achieve a consistent, institutional perspective for eDiscovery, it is critical to house policy and process-making in an eDiscovery “chief of staff.” This function is intended to serve the best interests of the organization and may be a General Counsel, executive committee, practice group, partner in charge, administrative director, or consulting group. Without some form of centralized decision-making, individual players will make decisions without consideration for firm risk management, industry standards or appropriate technology solutions. It is important to understand that this internal resource (even if only one or two professionals) is necessary because professional responsibility does not transfer to vendors. High quality consultants/vendors may carry out day-to-day discovery tasks and recommend strategies, the supervising attorney is still ultimately responsible for decisions and results.

If You Build It, They Will Come: Concepts for a Competitive Organization

Creating a productive eDiscovery framework requires combining traditional practice hierarchy with business principles that focus on efficiency, process and collaboration. A standardized eDiscovery framework should embrace technology, while encouraging team dynamics, open communication, defined responsibilities, continuing education, benchmarking and vendor vetting and management. With an ultimate goal of effectively managing data, the following concepts may assist in applying structure to practice:
    • Project Management – Although project management exists in many forms, as a term of art and discipline, it establishes controls around five steps of an individual project. Those include; initiating, planning, executing, monitoring and controlling and closing. Project management is a high-level, flexible approach that collects/organizes project competence and knowledge according to a broader organizational roadmap. For more information on project management certification please find additional resources at the Project Management Institute at www.pmi.org.
    • Lean Six Sigma – Lean Six Sigma combines strategic business practices regarding reducing waste through a process improvement methodology paired with a quality improvement process; together, it seeks to invigorate your process and organization. Seyfarth & Shaw developed SeyfarthLean a few years ago with the goal of maximizing the Lean Six Sigma principles to improve their practice’s delivery of legal services. Please find more information regarding Seyfarth’s program at www.seyfarth.com/seyfarthlean.
    • Information Governance – IG, an important tool in dealing with big data, is typically seen as a strategy for businesses to harness the power of data through advanced analytics. However, the organizational, holistic tenets of IG may be adapted to law firms to inform how they build a structure for technology and best practices to deal with big data. Please find more information about Information Governance at The Information Governance Initiative at www.iginitiative.com.

Technology is critical to the success of individual projects and organizations that serve the legal industry. However, long-term competitive success will derive from the integration of technology and an organizational structure in an environment where technical data solutions are balanced and supported by market-leading professionals and consulting services.

Are You Afraid of the Dark…Data?

Dark data and the umbrella principles of information governance are impacting eDiscovery, legal technology and broader business practices. Gartner defines dark data as the “information assets organizations collect, process and store during regular business activities but, generally fail to use for other purposes” and the storing and securing of dark data typically incurs more expense than value. In an emerging world where we are slowly transitioning from narrowly identifying discrete sets of data (eDiscovery) to proactively defining the value of data on an organizational level (information governance), we are learning that there is something to fear in the dark.

The Big Picture

For a decade, the legal industry focused on eDiscovery as part of the legal technology “big bang.” However, our scope is now widening to acknowledge the strategic learning opportunities to be derived from holistic data management in which eDiscovery exists as significant sub-field and not a singular solution. The volume of enterprise data has grown beyond traditional reactive eDiscovery strategies and is affecting how organizations perceive risk assessment and litigation preparedness and how attorneys represent clients and guide them towards defensible data solutions. Even with advanced predictive analytics, it is fast becoming a mathematical impossibility to respond quickly and efficiently to a legal matter when institutional data hoarding obstructs data management best practices. IG is the ability to efficiently organize and access relevant organizational information and break down what are typical issues that interfere with effective inter-departmental communication and knowledge sharing. This information clutter detracts from exploiting the data that runs our personal and professional lives so, where do we turn next to capitalize on the structure that IG provides?

Turning on the Light

The premise of managing dark data is to turn on your metaphorical lights and assess the value of your enterprise data that has been saved and stored but currently provides no meaningful use. Dark data represents a mind-shift in the way that we think about our data. Like our grandmother’s attics, organizations allow exponentially growing data to collect; unanalyzed, unstructured and seemingly dormant until litigation or regulation rears its head on top of corporate responsibilities including protecting PII, HR protections, compliance requirements, etc.
In addition to managing risk and maintaining litigation preparedness, shining a light on your dark data through “Big Data” analytics has the potential to create competitive market and organizational opportunities. Mine your data to better understand your business and to evaluate your institutional structure and, depending on your organization, the sky could be the limit. With an ongoing assessment of unstructured data, you have the choice to use it or lose it. Create a substantive business plan engaging all interested parties and, if the dark data isn’t useful, strategically dispose of it. This process reduces costs by eliminating storage fees and streamlining infrastructure to enhance efficiency. More than merely sorting data, an IG strategy implementing a dark data component reduces risk and develops a defensible retention and disposition plan.

eDiscovery Standards of Practice: Responsibility v. Opportunity - Part 1

Legal precedence is designed to keep practice within parameters, to create predictability and to develop standardized treatment of factual circumstances and subject matter. The practice of eDiscovery has developed differently because it is both created and affected by technology, and its growth has been dizzying. Inevitably, rapid technological evolution finds itself at odds with the conscious conservatism and methodology of law and that has produced “progress” at inconsistent and varying rates.

Responsibility

Because the landscape is ever-shifting, it has been difficult for professionals to gauge the responsibilities of practice. eDiscovery practice occurs in an environment where there is a huge divide between the opportunity that technology provides versus what our profession requires of us. In fact, you may be overwhelmed by a constant barrage of possibilities from the technology industry and from colleagues that routinely seem to raise the bar and question;

• Are you outsourcing?
• Are you fully exploiting analytics?
• Are you a forensics expert?
• Is your data dark?
• Are you optimizing the cloud?
• Is your data at risk of a cyber-security breach?
• Are you integrating big data and information governance principles?

The answers to these questions are relevant and powerful depending on the context, your client and your organizational structure. Despite the frenzy of the marketplace, we are fundamentally held to a standard of reasonableness, competence, fairness, and proportionality. As we wait for the courts to create definition around these vague standards, there is considerable flexibility in the practice of eDiscovery and to better understand how to navigate your way through the eDiscovery landscape, Part 2 will outline the relevant resources for practitioners. From caselaw to treatises, blogs and more, we will outline the nuance of practice intended to incorporate efficiency, superior technology, collaboration and defensibility.

Reality Check

As jurisprudence develops, the profession is largely motivated by comfort level, cost, client input and dipping our collective toes into emerging technology. The organic eDiscovery standards of practice, free-formed and tailored to specific need and context (the business of law), create a confusing array of priorities and an increase in ebb and flow as professionals are influenced by a market that emphasizes predictive coding, information governance, data mining, cyber-security, etc. It also encourages a tech-centric, competitive, one-dimensional world where an irrational fear of being perceived as outdated (though compliant) may be contrary to successful business models. Within the tension between practice and marketplace lies the line between real responsibility and competitive opportunity.

So, in a young and ever-evolving industry, we face a practice environment where jurisprudence is scant and we hang on every decision or rule change but, where technology constantly improves and provides the possibility of so much more. However, this framework provides considerable flexibility on individual matters. It is in the large spaces that exist between rulemaking where eDiscovery practitioners look to policy think tanks (Sedona, EDRM, etc.), conferences, colleagues, wonks and legal services vendors for support and guidance. It is in that space that standards of practice are created client by client, firm by firm and day by day and for the savvy practitioner, there is considerable strategic opportunity.

Will we play by the Rules?: 2015 Amendments to the FRCP

In Just Follow the Rules! FRCP Amendments could be an eDiscovery Game Changer, Jennifer Brennan of iDS interviews the Hon. John M. Facciola (Ret.) and the Hon. Mary M. Rowland in a very thorough exploration of how the impending changes to the Federal Rules of Civil Procedure (FRCP) will impact practice and process. In particular, iDS’s “FRCP Amendments at a Glance” graphic is very informative as we move closer to a new stage in the development of eDiscovery best practices, standards and rule-making.

Inside eDiscovery Digest - Weekly Top 3

Must see articles for the week of July 6;

Progress on Data Protection in the European Union by Rachel Teisch. The EU is in the process of amending its data protection regulations and any modification will have a significant impact on US entities doing business in the Eurozone. Teisch’s post gives us an update on the proposed changes.

eDiscovery Update: Know your Court's Local eDiscovery Rules by McGuire Woods. eDiscovery expertise and standards remain inconsistent across the legal profession as well as within jurisdictions. The Federal Rules of Civil Procedure (FRCP) allow for significant flexibility during the discovery process so, it is helpful that individual jurisdictions are developing their own guidelines to assist parties in meeting eDiscovery expectations. This article provides some examples of courts that have promulgated local rules for eDiscovery.

How Paralegals can drive a Proactive eDiscovery Process by Mike Hamilton. Often, we do not discuss paralegals with respect to the eDiscovery workflow and as eDiscovery has developed, there has been a tension between technology professionals and traditional paralegal resources. It is a benefit to any firm or GC's office to integrate paralegals into the eDiscovery process and Hamilton’s article speaks to how paralegals may be critical to successfully orchestrating efficient discovery.

Inside eDiscovery Digest - Weekly Top 3

Must see articles for the week of June 25;

Creating a Consistent eDiscovery Preservation Hold Process by Bill Piwonka. The content produced on Exterro’s blog (available here) is always well-conceived, practical and forward-looking. Piwonka’s recent article on legal hold best practices and practical advice is no exception. In an age where we are rapidly learning the importance of IG and how the eDiscovery process integrates into a larger strategy, a legal hold protocol is critical to cost-efficiency and process effectiveness.

Digital Privacy and eDiscovery in Government Investigations and Criminal Litigation by Louisa Marion and Justin P. Murphy. eDiscovery in criminal matters has lagged well behind civil litigation because of the nature of the relevant data and because standards established for civil litigation are not a good fit for criminal matters. However, as social media and the IoT (internet of things) evolves, it becomes much more important to the criminal discovery process. The Crowell & Mooring attorneys’ work is an in-depth look at the intersection of government investigations and actions, discovery and criminal proceedings.

Educating the Bar and the Bench to Manage Electronic Discovery by Giyoung Song and Tansy Woan. In almost every judges’ panel during LegalTech NY 2015, the attendees heard a common lament; attorneys before the bar are not eDiscovery experts and need to improve. For an audience devoted to eDiscovery and legal technology, it’s a confusing thought but, it highlights the slow integration of eDiscovery into broader practice. Song and Woan sketch out the high-level parameters of eDiscovery responsibility.

Inside eDiscovery Digest - Weekly Top 3

Must see articles for the week of May 11;

"How much will it Cost?" is not necessarily the Right Question to Ask: eDiscovery Best Practices by Doug Austin. Because eDiscovery costs can often make or break a project, they are paramount when selecting a vendor. However, without understanding the component costs of a budget or estimate, you may encounter surprises. Austin provides a short list of questions that will serve to better inform our understanding of cost.

Best Practices for Information Governance by Robert F. Smallwood. Referring to Information Governance (IG) as a “super-discipline,” Smallwood provides an incredibly helpful list of IG best practices that includes internal buy-in, records management, user restrictions, security and privacy.

A Stitch in Time: Making Proper Privilege Calls the First Time Around by Jessica D. Miller and Nina Rose. Assessing whether a document contains privileged content is often the most challenging part of a substantive review and it is critical for lawyers to have an exhaustive (to the extent possible) protocol for making privilege determinations. Miller and Rose do a great job of providing a framework for analyzing privilege in a document review setting.

Inside eDiscovery Digest - Weekly Top 3

Must see articles for the week of May 4;

Take Practical Steps to Ease the Burden of eDiscovery in the Future by Andrew W. Schwartz. Schwartz succinctly describes the “catch-22” created by the ever-present development of technology in which efficiencies are created while conversely demanding organizations spend large sums when faced with litigation or investigation. The article provides some common sense ways to build institutional structure to prepare for managing data and those who create it.

Gartner Predicts the Future of Big Data's Impact on Legal by Larry Gomez. In the same way that technology is impacting our daily lives, the data/information produced by technology is impacting the broader societal fabric; how we do business, how we settle disputes, how we develop relationships, etc. In this article, Gartner predicts how this data revolution will continue to affect the legal industry.

What New E-mail Behavior can teach us about the Future of eDiscovery and Information Governance by Andrew Bartholomew. It makes sense that algorithmic tools, used in legal technology to identify the substance of documents, would be used, at some point, to learn more about how we e-mail. A study just released by Yahoo provides a window into predicting e-mail behavior and reveals some patterns that may prove useful in creating systems that better manage e-mail data.