Contract Attorneys A to Z is a compilation of my most popular blog series. The white paper explores the ABC's of hiring, orienting and managing contract attorneys as well as best practices tips on designing review workflows and protocols.
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Must see eDiscovery articles for the week of August 25;
Center Stage: Judge Andrew Peck by Mark Gerlach. An excerpt from a session with Judge Peck at ILTA’s 2014 conference in Nashville, these comments from an eDiscovery pied piper focus on three of the most salient issues in practice today; predictive coding, FRE 502 and amendments to FRCP 26(1).
PC-TAR, Oversold and Under Adopted? by Greg Buckles. Buckles reveals the results of surveys and interviews designed to better gauge the real impact of analytic technology products on the legal profession. Despite pervasive marketing and widespread recognition, Buckles’ data highlights the difference between acceptance and adoption. In particular, there seems to be a significant difference between the use of analytics as part of an ECA process and the use of analytics for automated review.
The Exciting Changes in eDiscovery - A Conversation with an Expert. I always find information about eDiscovery practices in other countries to be fascinating and I have posted on EU and Asian perspectives here in the past. This article about the nature of eDiscovery in New Zealand reflects a global marketplace and shows that law firms in NZ are faced with the same challenges and decisions confronting legal professionals in the States.
Must see eDiscovery articles for the week of August 4;
eDiscovery, Big Data; A Marriage of Necessity by Paul Shea. In Georgia’s eDiscovery vacuum, Shea explores how lawyers are working together across the intersection of eDiscovery, IG and emerging data security to create holistic, organizational strategies for managing both client data as well as structuring their own internal resources. Although described as a marriage, I think that the nexus of technology disciplines is probably better defined as a dynamic, modern partnership that exploits synergies.
Brown v. Tellermate Holdings: Lessons in Preserving and Producing Cloud-based Data and Effective Communication between Counsel and Clients by David Cross and Margaret Nielsen. The discovery issues challenged in Brown v. Tellermate Holdings represent a worst-case-scenario result for lawyers and provides a great example of increasing eDiscovery demands placed on practitioners. The court found that defense counsel in the underlying discrimination matter failed to make any effort to understand the discovery of cloud-based data, relented to their client’s false assertions about access to the data and made inaccurate statements about the status of the data. The Crowell blog post provides a thorough description of the decision as well as the eDiscovery responsibilities of counsel.
Popular Misconceptions about Predictive Coding and Confidence Intervals by Bill Dimm. Every once-in-a-while, I like to sprinkle in a little number-based information for the statistics minded amongst us. This very short tip regarding confidence intervals in predictive coding that is expressed as a rule of thumb guide for creating sample/training sets.
Must see eDiscovery articles for the week for July 28;
eDiscovery's Balancing Act by Steven Bennett. Objective standards of practice in eDiscovery are often elusive and despite calls for reasonableness, proportionality and cooperation, parties and courts are faced with disputes during the discovery process. Bennett outlines the challenges of our current “good faith” approach to collaboration and the role for an updated FRCP in developing a greater sense of fairness amongst parties in eDiscovery.
Riley: A New Realm of Digital Privacy by Justin Murphy and Louisa Marion. This brief synopsis and accompanying link to an in-depth analysis of Riley v. California reflects a critical progression in Constitutional development regarding the intersection of privacy and technology. Although a bit far afield from the practicing eDiscovery professional, this jurisprudence reflects how technology is not only changing our lives but, how it is integrating into Federal perspectives on personal privacy and restriction of government intrusion.
Determining which Legal Services to Outsource by Nikhil Lala, Gail Blauer and Michael Caplan. This article and preceding articles in the series examine how corporate legal departments are (and potentially should be) expanding their internal service capabilities and creating efficiencies by utilizing outsourced solutions.
Must see eDiscovery articles for the week of July 21:
Flying in the Clouds: A Safety Checklist by Peter Krakaur. Even in the most structured legal environment (law firm, corporate legal department, etc.), lawyers will gravitate to technology that makes their professional life easier even in spite of enterprise resources and often without considering its impact on risk, ethics, integration, etc. Krakaur provides an extremely helpful due diligence checklist for organizations/individuals considering cloud-based products to serve their legal practice. In large part, I think that this article expresses an important aspect of the intersection of law and technology (especially cloud-based technology); when representing a client, no product is used in a vacuum and holistic, practice-wide considerations must be made to safeguard our clients and the institution.
A Law Firm Cashes In on the Management of Data by Catherine Ho. It’s always interesting when/where eDiscovery goes mainstream. However, it is increasingly more evident to the broader business community that large law firms are struggling to evolve profitably and those in the know understand that competition from a growing legal services market further complicates a challenging future. Ho focuses her article on John Rosenthal’s internal eDiscovery team at Winston & Strawn as they unabashedly seek to profit from managing clients' data. It is refreshing for a firm to understand how eDiscovery integrates with substantive practice and to confidently market services that vendors openly monopolize and firms fear to push.
Beyond Legal: Harnessing Data Across the Enterprise by Jennifer Swanton and Laura Jungels. I love this article because it yanks eDiscovery professionals from their tunnel vision (which is rapidly happening anyway) and encourages us to look at organizational information as a tool and resource. In eDiscovery we often feel burdened by data (its volume, collection issues, hosting and review costs, etc.) however, the principles of big data and information governance are educating us (and reminding us) of the inherent value of information.
Must see eDiscovery articles for the week of July 14;
Rise of the Agile Super-Lawyer by Nina Knierim. Following law school and licensing, lawyers are often amazed at how poorly legal education prepares them for the modern practice of law. Although this brief article does not specifically relate to eDiscovery, legal technology is a component of developing an “agile super-lawyer” and a significant part of how practice has evolved. eDiscovery is also representative of an increasing “do-it-yourself” environment that focuses on the business of law and for which recent law grads are largely unprepared.
Ten Characteristics of an Ideal Managed Services Provider by Rachel Tiesch. Outsourcing document review may prove to be a challenging decision for an organization because it affects more than just a single case team/client. From a firm’s perspective, the choice requires collaboration with professional responsibility departments (conflicts), billing, and litigation support and it may impact policies created by the firm’s OGC. Also, a critical question with a managed review provider is who will manage the relationship. However, as practice continues to be more competitive, law firms should provide as many options as possible and outsourcing should be one solution as part of a holistic, strategic client data management menu. Tiesch provides a good starting point for vetting providers. For individual matters, practice groups, or firms, decision-making will require you to drill down into the ten characteristics to assure that vendors are capable of meeting specific needs.
A Case for Insourcing eDiscovery Data Management by Andrew Bartholomew. Having worked in an environment where the size of cases ranged from single plaintiffs to massive class actions as well as regulatory investigations, I have always appreciated the flexibility of in-house data management solutions. Although institutional efficiency and cost-sensitivity is paramount in this market, a firm must also be prepared to provide a solution that meets a client’s specific expectations, resources and needs. Law firms must balance what theoretically makes the most business sense with what serves their stable of clients and best positions them among their competitors. Another consideration with the insourcing question is staffing. Firms are making widely different decisions with respect to their eDiscovery/litigation support human resources and strategies and in some cases, staff has been eliminated to reduce costs. Insourcing requires a commitment to technical staffing.
Must see eDiscovery articles for the week of July 7:
Firms Beginning to Take Flat-Fee Model to eDiscovery by Gina Passarella. The simultaneous meteoric development of eDiscovery and its effects on legal practice along with the contracting impact of the recent recession is forcing law firms to re-imagine billing for “non-substantive” tasks and processes. Many firms struggle to justify costs for eDiscovery and technology services and we often see internal conflict regarding whether to pass along these costs to clients or absorb them as “the cost of doing business.” In addition, competition from legal service providers has enhanced pressure to sort out a profitable eDiscovery model. Passarella’s article explores an old concept that is slowly gaining some momentum; an eDiscovery managed services model within the law firm setting.
For Law Firms It's Not If But When a Cyber Breach Occurs by Kiffin Hope. I have had a number of eDiscovery insiders tell me lately that cyber-security is emerging as a “trend” in the legal industry. In my mind, cyber-security policies and best practices logically fit under the data/technology umbrella that incorporates big data, information governance and eDiscovery. Hope’s article predicts further integration and adoption of data protection measures and safeguards in law firms.
Demystifying Analytics in eDiscovery: The Facts You Need to Succeed and Thrive in an Electronic World by Steven Toole. The data analytics (predictive coding and the like) conversation has been front-and-center in eDiscovery for a few years and in its early marketing, there was substantial industry peer pressure regarding its adoption from wonks, “thought leaders,” and vendors. Despite the “hype,” integrating analytics into practice in law firms has been slow and more deliberate and many managed review providers tell the same story. However, with information governance, we are seeing a more complete picture regarding how these tools may be used in more holistic, institutional formats. Toole’s article (and associated white paper) is the best that I have seen lately on data analytics that champions and instructs.
Data privacy, security and confidentiality have always been of paramount concern to lawyers even though their safeguards may not have necessarily reflected that responsibility. As legal technology integrates with practice, law firms have increasingly acknowledged and incorporated proactive data security measures into their best practices to protect internal and client information. With high-profile corporate data breaches flashing across the headlines, firms should initiate data risk assessment and include cyber-security as part of an institutional information strategy (a business-wide umbrella program that manages communications, hosting, storage, dark data, encryption, etc.). Below are the big numbers.
The Information Governance Initiative (IGI), available at www.iginitiative.com, is teasingly releasing components of its upcoming 2014 Annual Report and this week graphically shows the organizational impact of dedicated IG professionals. The IGI graphic below illustrates the extent to which an internal IG office effects existing institutional functions.