Inside eDiscovery

Are You Afraid of the Dark…Data?

It seems like a seasonally appropriate time to talk about dark data and how 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 storing and securing that 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 gained from holistic data management in which eDiscovery exists as a 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 serves 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 restrictions, 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. 

Happy Halloween!

Inside eDiscovery Digest: Weekly Top 3

Must see eDiscovery articles for the week of October 27;

Using Analytics to Clean Out the ESI Garage by Robert D. Brownstone and Gabriela P. Baron. This is an incredibly helpful, high-level article that serves to gently nurture us toward information governance (IG). We have heard a great deal about “dark data” this year and how paralyzing and costly it can be for organizations. Brownstone and Baron guide us through the basics of an IG business rationale, identifying analytical tools and developing institutional policies for data management.

Myth-Busting Predictive Coding: Are Key Words Really Dead?  by Sean Doherty. Perennially, the legal industry questions, “why is predictive coding under-utilized?” In interview style, Doherty examines the growing disconnect between the possibility and practice of technology with two leading eDiscovery practitioners. As most eDiscovery professionals know, technology hype paints a different picture from reality and here we discuss the continuing use of keywords, how professionals bring technology to life and the pace of analytics acceptance.

eDiscovery in Asia: Legal. Technical and Cultural Issues by FTI. Asian Legal Business Magazine and FTI conducted a wide-ranging study broadly looking at eDiscovery trends in Asia. The resulting white paper explores the big issues facing professionals working in Asia including data privacy and confidentiality, eDiscovery costs, the impact of new regulation in the region (China) and how these challenges impact an expanding Asian legal market. PDF version: Download EDiscovery in Asia - Legal, Technical and Cultural Issues

"Technology is not an eDiscovery Silver Bullet: The Power of Organizational Development" Featured on The Driven Copilot

Please read my new blog post published by Driven, Inc. and available here. In it, I assert the essential need for a robust eDiscovery organizational structure within which legal technology may be exploited to its fullest value.

Personal Branding for eDiscovery Professionals

I don’t often write from a personal perspective but, I was recently struck by President Barack Obama’s appointment of Ron Klain as the “Ebola Czar.” Although widely respected as the Democratic political architect of the 2000 Bush v. Gore challenge and as the former Chief of Staff for both Al Gore and Joe Biden, Klain has no medical background but is widely acknowledged as an organizational expert. His selection inspired me to consider personal branding and what makes individuals compelling as I seek my next permanent opportunity as an attorney and eDiscovery professional and what lessons there may be for those engaged in the highly volatile legal services market. This requires that we start with a look at the state of eDiscovery.

The eDiscovery Landscape

The broader legal services market (including law firms, corporations, vendors and government) continues to adjust in search of streamlined, efficient organizational models and that churn dramatically affects personnel. As the eDiscovery landscape continues to change, existing employees and those in the job market must flex with evolving needs to show their value. Worth is a moving target as eDiscovery roles expand to include data management, knowledge management, information governance, cyber-security, records management, project management, practice management, people management, document review, eDiscovery attorney/litigators, technical analysts, programmers, and business development/sales.

Although most roles do not require kitchen–sink qualifications, we are seeing a lot of one-man-band roles being created. In particular, I have noticed a shift to the extremes of the eDiscovery spectrum as opportunities become highly technical or require attorneys with litigation experience.  It makes me a little concerned about what is happening in the middle and how eDiscovery professionals should market themselves to exploit their educational background, credentials, experience and goals. Furthermore, how do “softer skills” (process management, team building, effective communication, organizational development) fit into an environment as eDiscovery divides itself into attorney versus tech? As law firms evolve towards more service-oriented institutions, these more nuanced skills become critical in managing complex, process-based matters that may involve collaboration across disparate internal and external entities and, according to eDiscovery standards of practice and bar regulations, also require barred attorneys for many functions.

Personal Branding Basics

Personal branding is not a new concept and in a revolutionizing industry that is constantly developing, it is critical to know your professional value and how to leverage that for current and future opportunities. Marketing guru Seth Godin says, "Many of us are taught to do our best and then let the world decide how to judge us. I think it's better to do your best and decide how you want to be judged. And act that way." While this may seem easier said than done, ingredients for developing your personal brand include;

• Be strategic and align your passion to your brand
• Be authentic, confident, honest and true to yourself
• Assess your strengths and weaknesses
• Objectively appraise where you excel over others
• Understand how others see you and how that corresponds with your current skills and aspirations
• Brand yourself expansively enough to accommodate varied perspectives
• Commit to a brand that you can live every day and manifest in every interaction

eDiscovery Branding through Example

Returning to Ron Klain, the acclaimed master of communication, logistics and organization; we can learn much from his career about the importance of not restricting your opportunities by narrowing how you are perceived.  In a similar vein, I have learned how the market can control your future if you allow the industry to assign your brand without your proactive direction. Fourteen years ago, I started out as a contract attorney and I have spent untold hours and years reviewing documents, managing reviews and eventually designing strategies and best practices and that has typed me as the “review guy.” Behind that moniker is an eDiscovery attorney who has now spent a greater proportion of my career advising clients, assembling global resources, managing eDiscovery professionals, developing organizational structure and efficiency, managing and vetting technology, and consulting/speaking/writing on eDiscovery evolution.

Final Thoughts

Although I can’t construct your individual, personal brand in this context, I can advise that you take control and learn from my experience while following the guidelines laid out above. In a tempestuous industry where organizations may or may not know exactly what they want, be flexible and honest in exploiting the value that you have while envisioning what could be. Remember that your brand is a fusion of your personal values, your skills, your passion and your purpose.

Inside eDiscovery Digest - Weekly Top 3

The must see articles for the week of October 20 focus on cross-border eDiscovery and include;

Cross-border eDiscovery: Cultural, Legal and Practical Implications by Sasha Hefler and Chris Dale. Cross-border discovery is a challenge that first requires the reconciliation of jurisdictional protections and demands and then, forces parties to tackle the challenge of language and process. The interview compares EU versus Asian obligations and recommends education, collaboration and harnessing resources.

Cross-border eDiscovery: Moving Towards Practical Solutions by Matthew F. Knouff. Knouff frames the issue of cross-border eDiscovery describing the competing US demand for a wide-ranging discovery with international protection of individual rights and data privacy. The inherent conflict with those perspectives causes many of practitioners’ struggles to meet US standards while abiding by extra-national regulation.

Cross-border Litigation and Investigation: Overcoming Legal, Cultural and Technical Hurdles by Drew Macaulay. Even the most sophisticated eDiscovery organization may be challenged by cross-border matters. Even once you have developed a case strategy and secured local technical support resources, you must address issues related to privacy, logistics, access to data and broader cultural or geographic roadblocks to success and efficiency.