Inside eDiscovery

TAR: Table for One? - Subject Matter Experts (SME's) and Technology-Assisted Review (TAR)

John Tredennick posted an interesting article on SME's last week for Catalysts' "E-Discovery Search Blog" (http://www.catalystsecure.com/blog). The post link is below.

In the world of document review, training the reviewer (attorney team or algorithm) is critical to success. Working with 100's of case teams, I have learned that there is NEVER one SME. At any given point in the life-cycle of a document review, the attorney who is most expert with respect to the substance of a matter may change.

Immediately after collection, the expert may be the fourth year who "managed" the collection. There may be experts who are assigned to individual issues.  As a matter progresses, it is more likely that expertise may be found with a senior associate who is charged with managing the production relationship with opposing counsel, organizing depositions or preparing motions as the case develops.

In addition to it being unlikely that you will find one oracle at Delphi for your matter, I worry that the use of one SME encourages a very singular perspective regarding the crux of a case. Even well into a review, I have seen attorneys practically come to blows about review analysis/interpretation. In the realm of TAR, I think that it is most instructive to have 2-3 experts so that debate and consensus is encouraged.

For more detail, please enjoy, Subject Matter Experts: What Role Should They Play in TAR 2.0 Training?;

http://www.catalystsecure.com/blog/2013/11/subject-matter-experts-what-role-should-they-play-in-tar-2-0-training/

Foxes in the Henhouse – The Vendorization of Practice

For law firms, eDiscovery service providers can be lifesavers or overwhelming sales people. Regardless, we often rely on eDiscovery vendors for their technology expertise, their proprietary products as well as their project management. It is important to acknowledge and consider how vendors are evolving and developing the eDiscovery industry/market as well as how they are impacting your practice.

Vendors are driving the technology conversation. In recent years, the publicity surrounding predictive coding has given the market a skewed impression of practice in law firms as only small numbers ventured to explore TAR. Reasonably, new products with advanced analytics are heavily marketed in a space where potential profits are huge and current solutions struggle to keep up with “big data” and an expanding universe of devices. Few attorneys are technology experts so, it is natural that we rely on vendors for the support that they were designed to provide. However, it is critical that attorneys are technology-competent and can assess vendors to assure that the facts behind the “hype” provide an appropriate solution.

An interesting (or challenging) effect of vendor marketing is that our clients are also in the marketplace and may be customers themselves. I have encountered a number of vendors who have stronger relationships with a service provider than they do with the firm. In the same way that technology levels the playing field in broader society, technology and tech vendors create a certain level of transparency regarding managing eDiscovery between clients and firms. On a basic level, because vendors are selling into corporate America as well, our clients may have an understanding of cost and technology that competes with the case team or firm.

The old saying that, “knowledge is power” is true. However, this new client/counsel dynamic increases the importance that lawyers embrace their technical side for a number of reasons;

• In an era of cost-consciousness, vendor costs may call into question the traditional firm mark-up/billable hour.
• Secondly, clients may have an understanding of the technology itself and what is possible with newer strategies and that may conflict with the firm’s approach or recommendations for a specific matter.
• Thirdly, and most basically, in 2013, the ABA Model Rules of Professional Conduct were updated to include ‘knowledge of relevant technology’ in the description of competence in Rule 1.1.

The democratization of technology through vendors puts a greater responsibility on the firm/attorney to understand technology and be prepared to persuasively explain why a certain product/analytic/workflow will or will not work for a certain matter. Vendors are connectors and lawyers now find themselves in “love” triangles and it is our responsibility to assure that the triangulated relationship is properly balanced.  As attorneys, it remains our duty to assure that technology is meeting the client’s needs, managing liability and protecting against further risk. Although vendorization has the potential to create conflict, we are best served by using these relationships and the technology to encourage cooperation in our pursuit of common goals.

Keeping up with the Joneses – Managing eDiscovery

For our inaugural foray inside large law, I was tempted to explore and expose a sexy subject like predictive coding, cloud-based solutions or the demise of the billable hour. However, I thought that it made more sense to begin with how large law is managing eDiscovery. Although we often get sneak peeks into firms’ strategies with respect to specific products on specific matters or in hypothetical situations, we are rarely allowed a view into eDiscovery workflow, staffing, technology solutions, etc. Obviously, this is sensitive, competitive information.

In recent months, I have learned that few firms have firm-wide eDiscovery strategies that are client services focused. Amongst top-tier firms, there is a huge disparity with eDiscovery employee resources, technology, policies, protocols, and management. There is a firm on “The American Lawyer’s A–List” that has no personnel dedicated to eDiscovery, is candidly suspicious of its litigation support capability and, recently had a trusted client urge them to hire an eDiscovery resource to provide needed expertise. Even a firm that is an eDiscovery trailblazer and who has a sophisticated in-house structure frequently outsources document review as employees sit idle.

Understanding that the fast-changing world of eDiscovery is confusing and challenging, there are a few basics that every firm should consider, if not implement;

• Every firm should have a firm-wide protocol/best practices for managing eDiscovery that affects all practice areas but does allow for flexibility depending on specific circumstances (client requirements, language/geographic challenges, data privacy, etc.).
• A firm’s eDiscovery protocol should include a process for vetting technology and staffing providers that allow for seamless participation on individual matters.
• eDiscovery and litigation support are not synonymous and the ABA and individual jurisdictions are now requiring that functions within the EDRM process be performed (or at least understood) by lawyers.
• Data technology should be selected to be as flexible as possible. Although the industry is excited by emerging analytics, most large law firms need technology solutions that accommodate small to large cases and novice to sophisticated clients.
• Firm-wide eDiscovery education is critical to awareness and understanding.
• Project management software is essential to assure that data is tracked, deadlines are met and risk and liability are minimized.
• All large law firms should have an integrated eDiscovery approach that incorporates both substantive issues and the “transactional” process…substantive eDiscovery legal issues should inform how the firm performs (or engages to perform) the “transactional” process of eDiscovery (collection, processing, review, production, etc.).

In advocating this “holistic” process within a firm, I suggest that eDiscovery impacts a far greater portion of a firm than an individual substantive issue (securities, antitrust, employment and so on…). eDiscovery cannot be relegated to and discounted as an afterthought; especially in an increasingly competitive legal market and as clients become more sophisticated. Your eDiscovery buzz words should be integration, consistency, efficiency, cost-effectiveness and, flexibility. More critically, an integrated eDiscovery approach guards against risk.

Introduction - My Point of View Inside eDiscovery

Data, delivered to us by ever-evolving technology, is pervading modern life. Your inbox has exceeded its allotted size, you’ve exhausted your text limit, your server is at capacity and now, someone else is adding to the issue by blogging about it. The challenge that all this communicating, chatting, writing, and talking creates is particularly evident in the practice of law where it is broadly described as eDiscovery and where, during the adversarial process, parties are compelled to share information.

I have worked as an eDiscovery attorney in large law firms for almost 14 years and have been on the front lines as firms have moved from paper to the “cloud.” Managing data in the eDiscovery process (across the EDRM) is challenging for any organization (small or large firms, clients, government). Rapidly changing technology and expectations only serve to complicate what is perceived as best practices or industry standards and large law firms struggle to develop institutional expertise in the area and provide competitive services for evermore educated clients.

The focus of this blog will be to take you inside eDiscovery…specifically, inside eDiscovery within large law firms. Inside Posts will be full posts focused on original content. With Inside Peeks, I will comment on thought-provoking articles and provide links to the original material. As a result of the “rinse and repeat” (description courtesy of an insider colleague) search for “new” eDiscovery approaches in the AmLaw 25, I have been “agnostic” in 2013 and have gained some perspective on the industry. In the eDiscovery blogosphere, we rightly hear a lot about technology (predictive coding products) and caselaw. Without excluding those salient issues, I would like to broaden the conversation to include, as examples;

• The “vendorization” of eDiscovery
• Practice of law issues
• Institutionalizing eDiscovery
• Big data (even at 140 characters a pop)
• Predictive coding versus practice
• Outsourcing eDiscovery
• eDiscovery staffing – Contract attorneys
• Document review

These examples are meant to be a reflection of the breadth of topic that I hope to achieve with my Inside Posts. I also intend my posts to speak to my “firm” belief that eDiscovery solutions and practice should be more holistic in scope.

Thanks for tuning in…

Jackson