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

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 articles for the week of September 8;

2014 Shaping up to be "Year of Technology" in eDiscovery by Exterro. Gibson Dunn recently released its 2014 Mid-Year Electronic Discovery Update and in this post, Exterro provides a link to the full report, summarizes its most salient points and speaks with two GDC partner contributors. The content focuses on predictive coding and the use of cloud-based solutions.

A Rose by any Name by Simon Michael. The possibilities of legal technology have exploded in the past five years (or so) and it has expanded the scope of practice to include enterprise strategies including IG, big data, etc. Michael focuses his comments on recent analysis that explores why legal technology has been so slow to fully integrate into review practice and he waxes poetic on the impact of a name on adoption…predictive coding, TAR, CAR, machine learning. I think that this discussion is meaningful because it helps eDiscovery professionals assess their own best practices, it draws attention to how the “market” affects (positively or negatively) client expectations and it highlights the power of perception on the legal services industry.

Nine Tips Controlling Discovery Expenses and Risks by Dante A. Stella. Stella provides a very helpful checklist of strategies to create efficiencies during the discovery process. Though intended for inside counsel, the content is a great resource for anyone tackling an eDiscovery project with topics including information governance, legal holds, IT, collection, preservation, etc. It is always productive to use thoughtful tips such as these to reaffirm your existing best practices.

Inside eDiscovery Digest – Weekly Top 3

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.

Inside eDiscovery Digest - Weekly Top 3

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.

Inside eDiscovery Digest – Weekly Top 3

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.

An Inside Share: Cyber-security in Law Firms

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.

An Inside Share: IG Goes Organizational

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.

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.