Inside eDiscovery

Version 3 of the EDRM: The Devil is in the Details

On May 19, 2014, EDRM released the third version of their eDiscovery process diagram available here. The changes reflect increasing industry awareness regarding;

• the significance of proactive information governance (IG) to the eDiscovery process,
• the essential nature of ongoing institutional data management beyond an individual case lifecycle and,
• the constant battle between volume and relevance

As always, the EDRM provides guidance and the updated version acknowledges and memorializes evolving attitudes about how discovery fits into legal practice/client counseling and the broader concern about ever-increasing data. However, we should consider the use and purpose of the diagram. For eDiscovery practitioners, using the EDRM as a case roadmap is like using your grandfather’s Rand McNally globe for a road trip…it may start you in the right direction but, the devil is in the details and organizations will need to map out specific protocols and processes for their workflow and casework.

I have always found that the EDRM is most effective as an education and marketing tool and a template for conversations with colleagues or clients. eDiscovery professionals are well-served using the EDRM as a foundation for an internal discovery curriculum and in a firm or corporate environment, it can be leveraged for discussions with legal, administrative, business development and IT interests. The EDRM is also elucidating when tackling strategies regarding vendors, budgeting, billing, staffing and software/hardware purchasing. Finally, especially at the outset, the EDRM should form the basis of your case eDiscovery strategy and the EDRM should provide the context for communications with colleagues and clients as you proceed through your detailed eDiscovery plan.

Inside eDiscovery Digest – Weekly Top 3

Must see articles for the week of May 19:

Don't Get Discouraged, You can Absolutely Grasp Information Governance by Jason R. Baron – Though an aged article from late March, I thought that Baron’s “in plain terms” piece regarding the critical nature of Information Governance in modern practice was a nice partner to EDRM's new revised model.

eDiscovery Best Practices for Your Practice, Step 3: Cooperation by Kate Mortensen – Mortensen continues her exploration of Losey’s EDBP with a concentration on cooperation in the eDiscovery process. Dating back to the 2006 changes in the FRCP, collaboration amongst adversaries was encouraged to manage costs and streamline processes as part of a cultural shift. Mortensen focuses on how cooperation is a strategic approach to eDiscovery.

New EDRM Diagram Emphasizes Information Governance by EDRM – EDRM premiered Version 3 of the EDRM eDiscovery model. The “significant” changes formally incorporate Information Governance as the foundation of an eDiscovery process.

Inside eDiscovery Digest – Weekly Top 3

Must see articles for the week of April 28:

Finding the Signal in the Noise: Information Governance, Analytics, and the Future of Legal Practice - By Bennett B. Borden & Jason R. Baron. In the Richmond Journal of Law & Technology, Borden and Baron explore the ever-widening scope of legal technology (i.e. analytics) as it has expanded from eDiscovery to Information Governance and Big Data. The article pulls in “precedential” sources to chart the course of technology advancement in practice as it serves to manage cost and ultimately, manage client risk.

Protecting Privilege: Let's (not) be Reasonable - By Tara Emory. Protecting privileged communications and work product and an efficient eDiscovery strategy can often function at cross purposes. Emory explores the practical use of FRE 502 along with clawback agreements and encourages the increased adoption of safeguards that ideally should streamline eDiscovery costs and timing while protecting client data.

eDiscovery Best Practices for Your Practice, Step 2: Preservation - By Kate Mortensen. Mortensen continues her distillation of the Electronic Discovery Best Practices model focusing on preservation. Every eDiscovery professional should be comparing, judging or fine-tuning their processes against the best practices approach outlined by Mortensen and developed by Losey at www.edbp.com.

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 April 21.

Lawyers Between a Rock (Social Media) and a Hard Place (the Cloud) - By Adam Cohen. Advancing technology is a double-edged sword for the average attorney. In many ways, technology provides the key to managing modern practice but, at the same time, creates challenges as new devices require evolving eDiscovery best practices and processes. Cohen examines the effect of social media and “the cloud” on attorneys and practice.

Are the FRCP Amendments the Answer to Yesterday's eDiscovery Problems? - By Bob Rohlf. Most eDiscovery professionals would agree that technology (in and of itself) is not the greatest obstacle to a successful discovery strategy. A slowly accepting profession has been reticent to adopt emerging resources and, as a result, the spirit of the 2006 amendments to the FRCP (efficiency and cooperation) has been somewhat thwarted as parties are reluctant to agree to predictive coding, cost-sharing, reduced collection, etc. Rohlf questions the omission of behavioral issues in the impending amendments and asserts that technology is solving some of the problems that it creates.

Reed Smith's Homegrown Periscope Helps the Firm Navigate eDiscovery - By Sean Doherty. We are finally entering into an era where practitioners understand that eDiscovery tools are not created equally and that off-the-shelf products will not appropriately suit every practice. A holistic new resource at Reed Smith, built as a big data tool and encompassing eDiscovery, should be a model for firms looking to develop customized, flexible products to support their discovery workflow and serve the needs of clients.

Is eDiscovery Flowering?

eDiscovery is a 21^st Century legal “big bang.”  Ushered along by (and in response to) the development of technology, eDiscovery exploded into practice as data overwhelmed clients, business interests flocked to meet emerging needs and the Federal Rules updated lawyers’ responsibilities. As quickly as we embraced dedicated eDiscovery professionals, products, process and punditry, observers and practitioners began to predict its “death.” However, rather than reflecting its decline, I would argue that “automated” technologies, data mining, information governance and an emerging big data philosophy are actually the results of a maturing eDiscovery market and practice. So, in honor of spring, what are the symptoms of eDiscovery’s descent and conversely, is eDiscovery actually flowering?

Vendor Attrition: Rather than a sign of the apocalypse, attrition in the legal services market is an effect of its dynamic character. Because eDiscovery was created and is powered by technology, its development has been fast-paced and exponential.  Rapid evolution puts immense pressure on lawyers and providers to meet market needs and to remain competitive. This constant churn and change dramatically impacts traditional capital outlays, the pace and expectation of development and the need for human resources. For this reason, we have all seen major players struggle to meet the pace and demands of the market. We have also seen business interests chase the dollar and herd toward “the latest” standard such as (from earliest to latest); processing, platforms, staffing, managed review, analytics, cloud, etc. seemingly without regard to strategic, long-term planning. Finally, from a large firm perspective, as eDiscovery has become increasingly more complicated (global clients, types of media, volume), one-stop shopping is important and niche players are harder to justify (cost and security) and manage.

Efficient Technology and Scope: One of the ironies of successful development within a discipline is that it eliminates less efficient aspects and cuts its ranks. In early years, eDiscovery was one-dimensional in its approach and focused on gathering data, staffing and linear review. The development of more sophisticated technology through analytics has not only improved quality and speed but has widened the scope of institutional data management to include emerging holistic approaches like information governance. In short, a steamlined process is a downsized industry.

eDiscovery as an Integrated Practice: We will see greater integration of eDiscovery into the individual substantive practice of lawyers with diminishing need for dedicated eDiscovery personnel. The FRCP and Model Rules for Professional Conduct have been strong catalysts for consolidating eDiscovery into modern practice as technology pervades. Also, a new generation of attorney is rising into leadership. These tech-savvy lawyers matured into practice with eDiscovery and better understand its requirements, strategy and process and are often able to manage the EDRM themselves with less guidance and support. (This integration does not preclude the development of substantive eDiscovery practices).

So, as some have described it, why is eDiscovery a “contracting market” and what does that really mean? To butcher a quote from the inimitable Mark Twain, “the reports of [eDiscovery’s] death have been greatly exaggerated” and I feel that the hand-wringing is largely a vendor perspective/concern as the market evolves. Advancement in the eDiscovery space will continue and it will become further entrenched in jurisprudence and procedure. The effects of “growing pains” reflect a maturing market that is flowering as it more fully integrates into practice and as legal services are measured for sustainable value and flexible technology solutions.

Inside eDiscovery Digest – Weekly Top 3

Must see articles for the week of April 7.

Here Come the Robot Lawyers - By James O’Toole. It’s not often that eDiscovery is highlighted in mainstream media. CNN Money published this article referencing Winston & Strawn eDiscovery evangelist John Rosenthal and harkening the widespread adoption of predictive coding and its effect on the ranks of law school grads.

Machine Learning and Law - By Harry Surden. Technology is affecting the practice of law and its processes and this recent Washington Law Review article does a “deep dive” into the technology and its uses.

Using TAR in International Litigation: Does Predictive Coding Work for Non-English Languages? - By John Tredennick. Meant to partner with my recent post regarding foreign language review available here, John’s article does a great job of walking the reader through the process and benefits of TAR along with exploring its use with foreign languages.

Contract Attorneys A-Z: Part 3

I have managed more than 2000 contract attorneys in my career and have learned quite a few lessons regarding hiring, orienting, supervising and maximizing temporary support within large law firms. Here, I conclude my Contract Attorneys A-Z series (Part 1 is available here and Part 2 here) with additional lessons, concepts and thoughts that seek to explore the character of the relationship between temporary attorneys and law firms. For this list, I assume that most contract attorneys are hired to assist with discovery-related projects.

Time Management – Hours billed on review teams should be strictly managed on a daily basis. In addition, the firm’s expectations on work hours and output should be presented during orientation and absences should be recorded to adjust productivity goals.

Unit – Contract attorney teams should function as a unit to encourage consistent analysis, productivity, fairness, etc. The hallmark of managing teams as units is uniformity. Information should be distributed at a unit level, issues should be addressed at a unit level, and individual problems should be sheltered from the whole to avoid distractions in close-knit working environments. Ideally, this approach develops solidarity and a morale built on equity and usefulness.

Veterans – It is significantly helpful for firms to maintain a database of employed contract attorneys that includes resume, conflicts information, rate, dates of employment and final assessment (the assessment should be shared with the staffing provider). Firms are usually benefitted from sourcing veteran candidates for new projects. They understand your environment, process, personality and expectations. One caveat…when comparing a veteran against a well-respected new candidate, make sure that the vet is truly a “super-star” and not just familiar and comfortable.

Woebegone – Contract attorneys are valuable components of the legal eco-system. However, the uncertainty and status of the position may create morale issues, especially over long-term projects. Although firms are not responsible for professional psychotherapy, I do think that it is important to address this cultural dynamic by involving them in your process, respecting their background and ability, sharing substantive information and, where possible, educating them on eDiscovery and the value it has in modern practice.

X-ray (I deserve a dispensation for this one) – Transparency is often challenging on large eDiscovery projects and especially with workers who are not permanent. However, I recommend sharing appropriate information regarding process, duration, issues, etc. with temporary attorneys. Foremost, it shows professional respect and creates a team-oriented morale. Secondly, for attorneys who work project by project, hour by hour, it allows them some degree of planning. These two factors will make your firm a desirable place to work and that benefits your client and work product.

Yahoo! – There is a perennial question about how much personal access contract attorneys should have to the internet (beyond a review platform) and to their personal devices. Confidentiality is an important consideration with allowing access. However, licensed attorneys have individual professional responsibilities and I think that it is appropriate to remind temporary attorneys of their commitment to their license. More broadly, I do not like to institute Draconian restrictions because I feel that it belittles an attorney’s professional status. However, rules should exist and be enforced and guidelines should be in place to control calls, browsing, etc. to respect review colleagues and the work.

Zeal – Conscientious and motivated contract attorneys are key resources for case teams. Review teams have first-hand, in-depth knowledge of your client’s data and I encourage case teams to utilize that expertise beyond pure review. I have enlisted contract attorneys to work on deposition preparation, case strategy, additional collections, privilege analysis, etc.

 

Is the Legal Technology Conversation Encouraging a Cart Before the Horse Mentality?

Jeffrey Brandt recently posted an article regarding why lawyers are slow to adopt emerging legal technology and he explores law firm inertia and the likely players who act to impede embracement of technology. The article is available here.

I wholeheartedly agree with Brandt’s underlying premise; firms need to modernize and evolve with the demands of practice. A competitive legal market paired with exploding eDiscovery costs necessitates that that the business of law constantly assess not only how it serves clients but also how it manages internal data. However, as I stated in my summary of LegalTech NY 2014 (available here), legal technology products aren’t created and don’t exist in a vacuum. Technology is powerful but, it is a means to an end and lawyers start with jurisprudence before partnering their client/strategy with a specific process or product.

Focusing on technology decision-makers in firms, Brandt highlights three “suspects” who may be roadblocks to quickly endorsing new products; lawyers, senior management and IT management. Reasonably, each of these cohorts has its own perspective. Expanding on Brandt's list, I would like to include the client as a critical catalyst in the law firm technology conversation. Clients are decision drivers. Client expectations can accelerate the adoption of new technology and conversely, can obstruct it because of cost, fear of the unknown, a lack of education, etc.

The technology equation in law firms is complicated. 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
• 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.

So, in my opinion, 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 matrixes that combine players and technology priorities that guide a best practices approach to vendor selection.

Contract Attorneys A-Z: Part 2

I have managed more than 2000 contract attorneys in my career and have learned quite a few lessons regarding hiring, orienting, supervising and maximizing temporary support within large law firms. Here, I continue my Contract Attorneys A-Z series (Part 1 is available here) with additional lessons, concepts and thoughts that seek to explore the character of the relationship between temporary attorneys and law firms. For this list, I assume that most contract attorneys are hired to assist with discovery-related projects.

Now - Marshalling resources for an eDiscovery project is complicated and timing usually suffers as decisions are made regarding collection, custodians, technology, vendors, staffing and substantive analysis. Many who sit outside the process question extended timeframes without appreciating the dynamics or logistics. Firms should have vetted best practices approaches to minimize extensions and temporary staffing should be prepared for a “now” mentality when component parts finally assemble and review is ready.

Orientation – I cannot overstate the importance of a substantive orientation for document review teams. Ideally, this includes an explanation of the legal framework of the matter along with pleadings if present, a robust summary of the factual context, a thorough discussion of the subpoena and/or review tags, relevant information about the client’s business and organizational structure and a custodian/players list that describes roles.

Privilege – Privilege analysis and review is often ignored until it reaches “necessary evil” status in the discovery process. Few attorneys (partners, associates, etc.) have comprehensive understanding of privilege and its assertion may differ dramatically from case to case depending on corporate structure, business practices, strategy, etc. The idea that there is one, universally accepted approach for identifying and asserting privilege is absurd. Firms should have partners and clients collaborate to develop an appropriate privilege “matrix” incorporating communication and work product documents and relay that decision-making to priv teams in detail.

Questioning – Document review is an iterative, organic process and at heart, it is an investigation. Daily team meetings with members of the case team, interspersed with opportunities to take advantage of an open line of communication allow for the essential back-and-forth flow of information. More than saying that questions are welcome, firms should provide teams the means and regularly (even daily) scheduled meetings are very important.

Rates – How law firms manage the cost of sourcing contract attorneys (absorb, pass along, bill to the client at a higher rate to accommodate administrative costs, etc.) varies greatly and has changed dramatically since the 2008-ish economic recession. Clients have also become more savvy and cost expectations more frugal. Firms should create contract attorney bill rate guidelines that provide a range of appropriate scenarios for recouping staffing costs that incorporates the possibility of overtime according to the local jurisdiction.  A senior member of the case team should work with internal eDiscovery/review experts on each matter to verify firm expectations and the case team should establish an agreed rate with the client before any staffing.

Skill – I whole-heartedly believe that document review and contract attorney work is a learned/acquired skill bolstered by an inherent understanding of substantive categorization and analysis. I have managed many document review teams staffed by associates and I tend to find that they are not effective reviewers…that is not to say that they couldn’t be with more experience. When staffing your project, you should seek to know as much as possible about the candidates review experience and, where possible, avoid inexperienced reviewers.