Inside eDiscovery

Inside eDiscovery Digest - Weekly Top 3

Must see articles for the week of June 29:

Revealing Survey Shows Upheaval in Law Firm eDiscovery Billing Practices by Anju Khurana. Khurana does a great job of describing the challenge that eDiscovery attorneys and managers face in law firms. There remains very little consistency in practice and within law firms regarding how tasks performed along the EDRM are billed, how practitioners and staff are described and marketed to clients and how legal service providers are impacting (and cannibalizing) clients. More generally, this reflects an industry-wide failure to define how eDiscovery is integrating into modern practice.

Looking beyond the Gartner Magic Quadrant for eDiscovery Software by Chris Dale. Interesting commentary on the Magic Quadrant analysis of eDiscovery services and software.

Bursting Biglaw's Bubble by Nicole Black. Black’s perspective on technology and big law is understandable…law firms are slow to change and their failure to “quickly” adapt (and adopt) to emerging technology outdates them and raises concerns with respect to their representation of clients’ technology issues and responsibilities. As an eDiscovery attorney, I find myself conflicted with this commentary. On one hand, I completely agree and I fear that practitioners fall short of meeting increasing professional expectations regarding technological expertise. However, more importantly, I think that a hallmark of legal practice (and the business of law), founded in precedence, is to be cautious and to rely on tested practices that avoid risk where possible while meeting industry standards. I explored these issues in my post, Is the Legal Technology Conversation Encouraging a Cart Before the Horse Mentality?

Is Magic Quadrant Sleight of Hand?

Gartner's 2014 Magic Quadrant for E-Discovery Software was released on June 19 and it immediately drew award season, red carpet posturing amongst the report’s market “Leaders.” Generally, Gartner’s research and analysis is an informative resource for entities seeking guidance on eDiscovery service providers. As a crude comparison, it steers prospective clients to legal service providers using defined criteria in the way that Consumer Reports or Angie’s List provides market direction. However, MQ is obviously a more sophisticated tool in that it also assesses the strength of the eDiscovery market, identifies evolving trends (ECA, predictive coding, IG) and provides context for decision-making.

Although MQ is neither superficial nor sleight of hand, it is also not a silver bullet nor a divining rod for vendor selection. Individual matter staffing, corporate or law firm culture, subject matter, technology competency, and existing or historic relationships are just some of the factors that impact the choice of a service provider and that may complicate the “simplicity” of an X-Y axis representation of vendor hierarchy. More than being a product catalog, MQ is a valuable foundation or stepping stone for an organizational RFP process for eDiscovery providers. Every legal services consumer should develop a process for evaluating technology/services providers that incorporates their own unique needs and expectations. As an example, an individualized qualitative process may be more critical in certain circumstances requiring foreign language functionality or social media analytics.

In an ever-increasingly competitive environment, Magic Quadrant is a fantastic resource for the eDiscovery marketplace and although it does not make selections for you like a Magic 8 Ball, it does better enable the consumer to make more educated choices. Incorporating market surveys, business strategy, technology and technology-related services and scalability, MQ assists in setting expectations for consumers and educating the broader industry.

Inside Focus: What Factors Impact eDiscovery Technology Decision-making?

The technology equation in law firms is complicated and challenged by an evolving list of needs that seek to exceed client expectations while balancing time and cost. Layered on top of potentially competing decision-makers is an ever-changing list of priorities that spans one or more invested law firm demographics and includes (in order of importance);

Versatility – For large firms with diverse clientele, products need to be versatile to fit large and small matters and linear review to predictive coding

Holistic Solution(s) – Law firms are looking to legal technology to solve ever-increasing issues and a product, vendor or mixture of solutions should be assessed to address cyber-security, information governance as well as more traditional eDiscovery needs.

In-house versus Outsourcing – How do firms balance the flexibility and long-term cost of internal solutions with the advantages of up-to-the-moment resources where your costs are a la carte.

Cost to the Client – What are the fees associated with specific products and what cost sensitivities exist from single plaintiffs to financial institutions?

Cost to the Firm – What institutional costs are there (dedicated servers, bandwidth, computing hardware, etc.)? How does the cloud affect cost?

Functionality – Incorporating the concept of versatility above, is there a “self-service” option, how customizable are interfaces, etc.?

Cross-border Litigation/Investigation – What tools best support multi-jurisdictional, international matters and their associated issues (data privacy, liability, etc.)?

User Experience – An intuitive, robust user experience (from document reviewer to back-end analyst)

Institutional Expertise – Although being technology-agnostic is valuable, firms should be competent with all the products they employ to assure that they are meeting their responsibilities to the client

Brand – Reputation and tenure in the market is significant. A vendor who has evolved with the market more likely proves itself as viable

Customer Service – Often the vendor/client breaking point, the project management component of eDiscovery providers is an important variable.

Lawyers and firms are slow to warm to technology because of the competing tensions in a professional organization where substantive practice and process converge. Law firms would be wise to create dynamic decision matrixes that combine players and technology priorities that guide a best practices approach to vendor selection.

Inside eDiscovery Digest - Weekly Top 3

Four must see articles for the week of June 23:

The BYOD Horse is out of the Barn: What Now Inside Counsel? and The BYOD Horse is out of the Barn: Risks and Consequences of Mobile Devices in the Workplace by  Matt Nelson. I have included the first two articles in the BYOD series by Nelson. Although this material is geared toward inside counsel and corporate environments, it is also critical information for outside counsel who often face the challenges of managing preservation and collection in a client’s BYOD workplace.

Don’t Forget to Close the Back Door: Vendor Management and Privacy by Paige M. Boshell. After a series of well-publicized data breaches in 2013-2014, cyber-security and personal privacy have become part of the public zeitgeist. Boshell draws our attention to how data vendors (legal services or otherwise) may be open “back doors” or threats to security.

E-discovery Best Practices for your Practice, Step 6: Evidence by Kate Mortensen. Mortensen finalizes her analysis of the EDBP with a description of the use of ESI as evidence focusing on the FRE guidelines for admitting documents and reminding the reader that an efficacious process that follows the EDBP will well-position us the evidentiary stage.

New Rule 37(e) Overrules Second Circuit on Sanctions for Loss of ESI by H. Christopher Boehning and Daniel J. Toal. Because it is so well written and referenced, I include a fourth article this week. Boehning and Toal provide a methodical description of how the final proposed amended Rule 37(e) affects the Second Circuit’s precedential approach to sanctions in cases where parties are deprived of ESI.

An Inside Share: Exterro Focuses on Significant eDiscovery Cases

In a completely unsolicited recommendation, I would like to highlight the industry commentary and training materials produced by Exterro; their eDiscovery editors, contributors and professionals. I have frequently used articles from Exterro’s E-Discovery Beat (available here) in my Inside Digests. Exterro strikes a dynamic balance at the intersection of marketing and continuing education that re-defines “service provider.” In Significant eDiscovery Cases - Lessons Learned and Technology Considerations , Scott Giordano briefs three recent cases that impact our eDiscovery practice expanding on the facts, context and implications.

 

 

Inside eDiscovery Digest - Weekly Top 3

Must see articles for the week of June 16:

Corporations Moving into the eDiscovery Driver's Seat by Matt Mohwinkel and Joy Holley. Mohwinkel and Holley explore a dynamic in the eDiscovery space that will be familiar to those of us who have managed processes and relationships amongst outside counsel, clients and vendors. As the quest for efficiencies has become paramount, clients are often adopting hybrid eDiscovery roles (greater involvement, dictating vendor selection, etc.) as all members of the eDiscovery team seek to maximize expertise and strategic management of the process.

The Challenge of Safeguarding Todays Attorney-Client Privilege by Philip Favro. Reviewing and asserting privilege during the eDiscovery process has always been complicated and, in my opinion, underestimated in terms of substantive/process complexity, time and cost. Favro addresses the impact of new technology, IG principles and emerging FRE best practices.

eDiscovery Best Practices for your Practice, Step 5: Productions by Kate Mortensen. Mortensen continues guiding us through Losey’s EDBP outlining issues related to production. Pulling together relevant rules, industry standards and the EDBP, a critical point of her article is that the eDiscovery process is holistic and component parts dramatically affect each other. The success of preceding stages, along with accompanying production best practices will assure results that meet strategic and negotiated expectations.

 

Inside eDiscovery Digest - Weekly Top 3

Must see articles for the week of June 9:

Crowell & Moring Releases "2014 Data Law Trends and Developments: E-Discovery, Privacy, Cybersecurity & Information Governance" by Crowell & Morning. All eDiscovery professionals should read and reference Crowell’s most recent encyclopedic report on the state of “newer” evolving issues facing professionals. The report is a very practical guide to relevant issues, caselaw, costs and the numbers behind the explosive growth of data. The link will navigate you to a page where the report is available for download.

Proposed Guidelines for Nonparty eDiscovery in New York’s Commercial Division by Adam Cohen. New York State Supreme Court’s Commercial Division just closed public comment on proposed new eDiscovery guidelines/rules for nonparties in the Commercial Division. Cohen does a good job out outlining the changes. While this is obviously germane to NY practitioners, it is also reflective of a widespread movement amongst jurisdictions, the FRCP, non-profit policy organizations and for-profit educational groups that seeks to standardize and structure the process of eDiscovery. Another good article about NY’s proposed guidelines is available here  from Nixon Peabody.

What the Judges Said: Top 10 Takeaways from LegalTech Judges Panel by Tara Emory. As eDiscovery lawyers and professionals, we are always looking for guidance and validation. It is a constant craving. Emory’s “top 10” list covers the breadth of modern eDiscovery topics and satisfies our need to know what those whose opinions matter really think.