Inside eDiscovery

The Burgeoning Business Cost of E-mail

In Jennifer Booton’s recent article, Don't Send another E-mail until you Read this, she explores the growing cost of eDiscovery for corporate America while attributing a windfall to law firms. While the information may be appropriate and informative for a “mainstream” publication like MarketWatch, Booton’s focus on law firm profits is dated and ignores how technology is impacting the traditional law firm model.

In the early years of eDiscovery, profits in big law may have been significant because practitioners integrated the process into its hourly rate structure. However, the same technology that made e-mail (or other means of electronic communication) a revolutionary, cost-cutting communication tool is now forcing law firms to evolve in search of efficiency. In the broader legal technology industry, we are still feeling the impact of this symbiosis as firms adjust to meet client needs and expectations and consultants/technology vendors develop to satisfy a growing trend toward outsourcing and managed services.

While I don’t question Booton’s numbers or general premise, I do feel that it is inappropriate to attribute an eDiscovery “bonanza” to law firms in 2015.

Inside eDiscovery Digest - Weekly Top 3

Must see articles for the week of March 9;

HBR Consulting 2015 Law Department Survey: eDiscovery Flash Survey Results: HBR compiled its 2015 information characterizing in-house eDiscovery from a series of roundtable discussions held nationally and reflecting varied geographic markets. I think that this is a fascinating validation of what we may be seeing from other perspectives in the legal technology industry; an increase in in-house eDiscovery employment opportunities, an increase in law firm eDiscovery outsourcing via corporate relationships and due to corporate pressure to economize, a growing acknowledgement and understanding of IG, etc.

Are China's new Data and Cyber-security Regulations a Wolf in Sheep's Clothing? by Rachel Teisch: eDiscovery in Asia has always been a challenge (particularly in China) because of “privacy” issues and government interference and this article by Rachel Teisch at Xerox recalls an in-country collection that I was involved with in 2010 where private security was required to secure our associates and the data despite all efforts of the GC. New personal privacy regulation may further hinder eDiscovery in China along with potential new cyber-security rules that would dramatically impact anyone doing business in the country just as Chinese companies expand their global presence.

Judge Peck's Latest: TAR now "Black Letter Law;" CAL Reduces Significance of Seed Set by Bob Ambrogi: In Judge Andrew Peck’s recent opinion in Rio Tinto PLC v. Vale SA, Case 1:14-cv-03042-RMB-AJP (S.D. N.Y. March 3, 2015) he references back to his groundbreaking Da Silva Moore decision and elaborates on the use of TAR technology in a case where the parties’ TAR protocol was at issue. Of particular interest, Judge Peck discusses the transparency of seed sets or training sets and he suggests that Continuous Active Learning (CAL) may alleviates some concerns where parties do not otherwise stipulate to openness and he warns that holding a TAR process to a higher standard (versus keyword search or manual review) is not appropriate.

Inside eDiscovery Digest - Weekly Top 3

Must see articles for the week of January 19;

Deconstructing Big Data through Data Science by Paul Starrett. Because law and technology are traditionally strange bedfellows, legal professionals often fail to see the broader context of technology because we are in the weeds with individual clients. I would recommend this common-sense, plain language article that defines big data as part of any technology training. Although most lawyers have encountered big data vis-a-vis eDiscovery, Starrett gives you a high-level understanding of how managing data through modern technology affects the larger business context.

Is Law Firm Data Safe in the Cloud? By Aaron George. The business of law is currently torn between the possibilities (access, cost, etc.) of the cloud and the tempered hysteria of cyber-security. As lawyers, we are hard-wired to manage risk and progressing toward cloud-based solutions forces us to challenge the efficacy of developing resources. George sets a great foundation/structure for considering and questioning the benefits of the cloud for any practice.

Data Analytics as an Emerging Tool for Compliance and Legal Risk Management by Bill Schiefelbein and Anthony J. Diana. Enterprise risk management (ERM) as a holistic approach to managing corporate risk and compliance is evolving along with emerging legal technology and advanced analytics allow organizations to “see” more deeply and substantively into their business and industry. This article explores how inside counsel is meeting the challenge of exploding institutional data and how technology is being applied to specific challenges.

Inside eDiscovery Digest - Weekly Top 3

Must see articles for the week of September 15;

The End of the Privilege Log as We Know It by Tara Emory. We are all benefitted by practical discussions about how to reduce the burden of privilege logs. Emory traces the glacial pace of evolution in modernizing the logging process and focuses on the use of categorical logs. In practice, some of my most stressful and miserable moments have been related to privilege logs; thousands of documents, arcane processes and analysis, obstructionist opposing counsel, indecisive clients, etc. In the collaborative spirit of the amended FRCP, logging by category would provide a balance between disclosure and protection.

ediscovery Lessons on Business Technology from the Legal Industry by Dean Gonsowski. Recommind’s Global Head of Information Governance explores how data and its management within the legal industry is impacting business practice. Information Governance is intended to be a holistic solution, designed to create a data umbrella under which client and counsel take advantage of technology for categorization, efficiency, identification and risk avoidance.  Although legal service providers are pushing the envelope with technology, law firms are still adjusting to the possibilities and their clients are still relying on counsel (for the most part) for one-stop shopping. Gonsowski’s lessons imagine a world where technology and human input partner to decrease the impact of data on representation and where technology becomes a proactive resource.

BYOD and Consumerization of IT in Corporate America. The Metropolitan Corporate Counsel interviews Judith Branham regarding rapidly evolving personal technology and how that effects a business’ information privacy, litigation readiness/eDiscovery and technology policies. Branham provides a great overview of the current technology culture and how corporate America should be responding in order to protect its interests while accommodating consumer/employee demand.

Inside eDiscovery Digest - Weekly Top 3

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.

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.

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 May 26 (a focus on our in-house colleagues);

Information Governance Rises up the Corporate Agenda - by CIOL. A quick run-down of how recent marketplace issues with data security are motivating corporate adoption of information governance.

Catching-up with How to Create a Corporate eDiscovery Readiness Program: by Basile, Hammond and Esteban.

(Part 1) Providing Context for and Highlighting the Core Components of an eDiscovery Roadmap

(Part 2) Explaining the eDiscovery Project Model Framework and Discrete Project Lifecycle Components that can have a Measurable Financial Impact on the Business

(Part 3) A Look at how to Build out your People Assets for Continuous Bench Strength at Preferred Service Providers

(Part 4) Today's Modern Corporate eDiscovery Team is Centralized and under the Leadership of Specially Trained Lawyers and Technicians

eDiscovery Best Practices for your Practice, Step 4: Search and Review - by Kate Mortensen. In Part 4 of Mortensen’s exploration of Losey’s EDBP, she restricts our attention to the ever-important issue of identifying relevant data through filtering and review.

Are LPO’s the Remaining eDiscovery “Black Box?”

In 2007 I conducted complementary research projects that investigated the efficacy of data analytics and legal process outsourcing (LPO). For the firm, I concluded that neither was fully developed and that both resources were a bit of a “black box” as vendors were reluctant to divulge specific information. I vividly recall a number of conversations with providers that resulted in a confusing “Who’s on First” back-and-forth. In the past seven years, predictive coding has emerged from the darkness and we now better understand the components of its defensibility; how it works (algorithms), what it costs and where it succeeds. However, other than generic predictions of doom, the details of outsourcing aren’t really discussed in the community and until recently, I didn’t have much insight into the process and practice of LPO’s.

Legal Process Outsourcing (LPO) Market Analysis and Segment Forecasts To 2020 prompted this post and provides an interesting summary of the global LPO market. In the past year, by coincidence, I have had a number of colleagues gain considerable experience with LPO’s in India and, in turn, share their new expertise with me. What I’ve learned inspires an inherent philosophical question in eDiscovery; when the price is right, do we care about the process or just the results? A completely random sample of LPO’s paints the picture of organizations that are heavily staffed, tightly controlled and ultimately economical for clients. Their business models seek to exploit affordable labor while assuring quality work product through intricate, verifying processes. What I have learned (second-hand) about the LPO experience includes;

• Low labor rates allow for a “throw bodies at it” approach that encourages long hours and large review teams.
• Written and oral language barriers create internal communication issues and limit the nature of interaction between clients and review teams as well as amongst native review teams/project managers and western colleagues.
• Substantive understanding of US law is minimal and, especially with privilege (which is always difficult to explain to non-western cultures), may require extensive training, orientation and QC.
• To compensate for language and educational differences that may produce high first pass error rates, elaborate/sophisticated searching protocols are implemented to “steer” the review toward accuracy; essentially an iterative, manual process that mimics predictive coding.
• As a result of extensive searching, accuracy rates in the final work product are very high.
• To meet Safe Harbor requirements and to protect data privacy, LPO’s typically have elaborate control procedures to safeguard client information.

Market constraints in the States have forced efficiencies on practice affecting staffing, volume, process and timing and the quest for cost savings is motivating an evolution in practice management while creating the opportunity for legal process outsourcing. While US eDiscovery practitioners will look for input perfection at each stage, LPO’s seem to have created sophisticated ECA protocols along with review controls that seek to ameliorate input issues while focusing on the output. It is an exhaustive process that adjusts for the implications of location but that is both caused by and benefits from that location (foreign lawyers and low labor rates). For most firms, international outsourcing will be a sensitive and calculated decision (potentially motivated by a client) that depends largely on a comfort level with delegating control over the review process as LPO’s continue to be perceived as an unknown or “black box.”

Inside eDiscovery Digest – Weekly Top 3

Must see articles for the week of March 31.

I am inaugurating a new Inside eDiscovery series entitled Inside Digests that will compile three insightful, well-written and thought-provoking articles/posts that highlight salient issues facing eDiscovery professionals today.

Three is a Crowd: Working eDiscovery Projects with In-house and Outside Counsel in the Triangle - By Damian Durrant. eDiscovery professionals are often forced into collaborative relationships that include service providers, clients, and multiple-levels of counsel. Despite what may be perceived to be a common goal, each component has unique sensitivities to workflow, strategy, liability and risk. In my experience, these complicated and nuanced dynamics require over-the-top agreement and communication and the organization “footing” the bill should be the de facto “boss.”

Avoiding Privacy Landmines in Cross-border eDiscovery – By Andrew Bartholomew at Exterro. Having worked extensivelywith cross-border litigations and investigations, I understand that the “knowns” are far outweighed by the “un-knowns.” Addressing international data privacy issues is challenging and requires expertise that may not sit within your organization and it may be challenging to find vendors who are well-positioned to provide competent support that protects your client.

District Court in Washington D.C. Exposes Illegal e-Discovery by Department of Justice– By Ralph Losey. Losey’s post (and the underlying opinion by Judge Facciola) is fascinating for two reasons; it is rare to have significant push-back against government discovery and secondly, the Fourth Amendment application to data is, more broadly, part of an on-going discussion in Information Governance about the value of data and how that perspective is changing the industry’s approach to process and technology.