eDiscovery 101

Electronically Stored Information Is Fluid...Why Aren't You?

If discovery has taught us anything it is that it's constantly evolving.  From the actual data being requested to the savvy legal techniques attorneys use to gain access to the data...it's constantly evolving.  Unfortunately law firm internal departments may be placing their clients in harms way as they continue to develop internal methods to review electronically stored information.

We are in a technology era that demands "he who has the most toys wins!"  We've all heard the stats spieled by every sales initiative in the industry..."over 99% of all communication is electronic"..."Over 10 billion emails are sent out everyday"..."Email is the the #1 means of communication over the telephone"..."text messaging is the new way to whisper"...actually I just made that last one up but it sounds pretty good.  They all do actually which is why virtually every legal expert agrees you can't litigate without accessing the ESI.  However there are 2 facts that you cannot dispute.  The first is that corporation rave to remain on the edge of state of the art technology.  The second is that outside counsel is always trying to catch up in an effort to secure tech savvy companies as clients.  And while most law firms have created internal departments to handle electronically "received" data from a service provider very few are cognizant about one ultimate and important fact...data is fluid.

In the world of electronically stored information no one data set has the same fielded meta data of another.  So what does that say when an internal law firm department is requesting the same static fielded information from their service provider?  Indeed some if not most data sets have similar fielded information but the static "coding field" approach that was used when documents were scanned and bibliographical coding fields were created simply cannot be the same approach to electronically stored information.  In addition, if you're ignoring foreign language documents simply because your internal database solution is not unicode compliant you're just asking the court to spank your clients check book.

For some of the reasons mentioned, e-Discovery enterprise providers are opening a wider market door because of internal department limitations to see and address the fluidness of ESI.  They are very much pushing service providers to the way side governing the way service providers can have access to their platforms and how service providers can price their services in support of law firms.  The idea...remove the service provider completely and create a "new" kind of service provider.  One that is completely reliant and controlled by the actual software provider.  The problem here is that internal departments may not need a tank to do a shotguns work.  So smaller cases will suffer in the name of capitalism.

So what is the answer?  There are a few actually.  Here are my recommendations:

1. Stay on top of the e-Discovery trend.
2. Implement a system internally that allows you to "see" all the meta data that is part of a data set and then determine which fields you want to import into your review system.
3. If you're not unicode compliant get up to speed.  You need to have the ability to not only search across english documents, you should be able to search across all languages identified in your data collection.
4. Beware the one software solution platform that does it all.  yes it may be excellent but sometimes things come up mid-stream and if that platform cannot address your need(s) for revision you are S.O.L.  Some may claim one platform that can do everything is the better solution but I personally disagree.  A Service Provider that can can handle every phase of the EDRM is probably your better bet and the ability to Q.C. and address at any stage without interrupting or delaying the flow of other data that needs to be processed is golden.  
5. Don't get caught up in the lie (and yes this part is self serving to Litigation Logic) that yes you may be paying more but the quality is much better.  Quality is based on communication.  I've dealt with clients who refuse to answer the phone and will only respond to emails.  That's a lack of communication.  Relationships are relational meaning it takes two sides.  A relationship is not just you receiving.  The best relationships are the ones where both sides put in the time to ensure a perfect product.  Not just one side expecting and the other side doing.

I'm an advocate of internal departments however there is an increasing trend to circumvent internal departments and go straight to the client.  Initially it was monetary but eventually it will be because internal departments take to long to adapt to the fluidness of data and its requirements.

-Anthony Martinez - Litigation Logic - Chief Executive Officer

About Anthony Martinez:

Anthony Martinez is a discovery expert with over 15 years of advanced discovery technology and processing experience.  His company Litigation Logic is one of the leading technology service providers in the industry today offering a full spectrum of electronic discovery services.  Litigation Logic has provided services to over 30 of the top 100 AMLAW firms as well as major corporations.  You can visit Litigation Logic at www.litigationlogic.com.

 

3 Reasons Why Attorneys Just Don’t Get Electronic Discovery

If practice makes perfect then that saying alone suggest the answer to why attorneys simply don’t get the complexity of issues surrounding electronically stored information (ESI).  More and more judges seem to rely on the Electronic Discovery Reference Model (EDRM) so why aren’t attorneys taking as much of an interest in becoming more fluent in the EDRM as are paralegals, support staff and service providers?  As it stands there seems to be more attorneys who now work on the service provider side with a greater knowledge in sales and consulting capacities than actual practicing attorneys in law firms that represent clients.  So what’s the problem?  Here are 3 reasons that may help practicing attorneys get more in tune with electronic discovery topics, issues and discussions:

1.        Discussion Boards:  One of the strongest advantages to knowledge management professionals is their proactive and interactive membership in electronic discovery discussion boards.  There are discussion boards on several different levels addressing every aspect of electronic discovery.  Most if not all of these discussion boards are filled with everyone except practicing attorneys.  Contribution is not required but monitoring these boards would allow attorneys to see in-depth conversations on topics that could potentially spark an interest or give insight into in a particular matter.

 

2.       Case/News Alerts:  Set up case alerts in Westlaw or Lexis Nexis or News Alerts in Google, Findlaw, Law.com and other news media sites with keywords relative to the current issues surrounding Electronically Stored Information (ESI).  Make sure they cover issues like: legal holds, spoliation, adverse inference, preservation, data collection, review, processing, search terms, keywords and hot FRCP topics. 

 

3.        Discovery Blogs & Resource Sites: That’s right just like this Blog (eDiscovery 101) there are other great blogs that RSS Feed pretty much anything and everything you want to find about electronic discovery, cases, industry trends, community, hot topics… you name it!  Blogs and resource sites like http://www.discoveryresources.org, http://www.ediscoverylaw.com, http://ralphlosey.wordpress.com/, http://ellblog.com/, http://www.ediscoveryinfo.com/, http://postprocess.wordpress.com/ and http://www.eddupdate.com/ are just a few to get you where you need to be.

Paul Lippe wrote a piece in the American Lawyer today where he stated that for over “the past decade, law schools have grown more distant from the profession, and the legal academy has come to define itself as primarily engaged in a scholarly, as opposed to professional, pursuit.[1]” Electronic Discovery in all of its forms and issues certainly relates to the practice of law.  An old lawyer vs. IT saying goes something like “I couldn’t understand computers so I got a degree in law” and vice versa for IT (don’t hang me on the correct quote and I’m placing support staff under the IT umbrella for this parity).  Yet it seems IT has taken the lead in understanding the “legal” practicalities of electronic discovery where attorneys are slow to grasp the technical attributes as they apply to their legal practice.

To the Law Firms defense however more and more firms are hiring attorneys well versed in electronic discovery as Of Counsel or Special Counsel.  E-Discovery service providers like Litigation Logic (yes I had to do the company referral) are partnering up with contract review attorneys (LegalEase Solutions) fluent in both electronic discovery and advanced pre-discovery review platforms.  There is hope for attorneys but the “I know it all” mentality and arrogance has to be put to the way side and re-education has to be embraced.  After all it’s what’s in the best interest of the client… …Isn’t it?

– Anthony Martinez – President & Chief Executive Officer – Litigation Logic   

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[1] Quote from Paul Lippe at http://amlawdaily.typepad.com/amlawdaily/2009/06/school.html

5 Easy Steps To Becoming An In-house Electronic Discovery Guru

 So I've been speaking with a number of Attorneys & Support Staff (who I'm hoping will chime in publicly on my Linkedin eDiscovery 101 postings) and the consensus is that Litigation/Practice Support are not the go to guys and gals for electronic discovery advice.  That's like a law firm going to outside counsel for legal advice after paying top dollar for legal professionals to come work at their firm.  So I've come up with a few tips to help in-house support staff become better go to people for electronic discovery matters that can "get them in the room" at the inception of cases.  These steps do not come in any particular order so apply them at will.

The 1st Step: Don't be the at your desk non-social lit support person that attorneys can't tell the difference if you're from lit support, MIS or work in the library.  Be proactive at work.  Whether you're a manager or a specialist, check with docket and find out what new cases are going on.  Project the discovery need and send a note to the associate(s) on the case about your interest.  Maybe identify some helpful links about eDiscovery in current events (cases, blogs, opinions) that may be helpful to them.  Let them know what your in-house capabilities are and your knowledge on the subject.  Assume nothing and expect everything.

The 2nd Step: Go beyond your in-house processing capabilities.  So you have a few licenses of Law but what do you really know about load file manipulation?  What do you really know about Pre-Discovery processing options that your Law Software can't provide?  Instead of talking to sales reps from service providers about where they're going to take you for lunch, talk to the tech people.  They're pretty fluent on file manipulation.  This may seem a little odd to some but he who can create a load file from scratch in textpad is hands down the stronger lit support go to guy.  

The 3rd Step:  Don't just read read read...apply apply apply!  If you have some down time set up demo's with all the latest software providers out there.  Create a memo book about the functionality of each product.  Talk about the pro's and cons (be careful here because most providers won't tell you in-depth about their weaknesses).  Ask them what platforms do they think are similar to theirs.  Take extensive notes and most importantly apply them to your in-house capabilities.  See how you can substitute functionality you don't have with functionality you do have.

The 4th Step:  Find out which attorneys have had run-ins with eDiscovery good or bad.  Speak with them about it.  This is a good step because it lets the attorneys know who you are and it lets them know how interested you are in understanding and addressing the strengths and weaknesses of the firm.  Figure out ways to address the weaknesses and come up with a strategy (start out small) to educate attorneys a little better.  One way to do this is to take a small survey and get about 5 attorneys who would be interested in attending a 45 minute product demonstration. Create an official title for this meeting like "eDiscovery 101 meeting" (keep it catchy) and set it on the firms intranet (this way when the next meeting comes you can call it "the 2nd Monthly eDiscovery 101 Meeting or something that catches other attorneys eyes). Setup a conference room, get the selected vendor to come educate about their product (not sell) and your off to the races.  Make sure that you are having providers come to educate not sell and be very upfront about this.  After several meetings you will see how educated attorneys and yourself become but most importantly you have established yourself within the firm.

The 5th Step:  Be honest.  Don't be like the sales reps who pound on you selling you the dream of they can do it all.  Be frank with your colleagues and let them know what you can and cant do but the key is making sure that whatever you can't do you can definitely get done.  Anyone can offer to buy anything that's out there to get something done so be creative and always remain cost effective.  Remember technology is always on the rise and the moment you convince the firm to spend thousands of dollars on one solution a new one that's probably much better will come out a few months later.

The best eDiscovery in-house people are the ones that can get anything done with very little commitment of investment.  There are some great inexpensive tools out there.  The best way to begin is look at the EDRM chart, start at the beginning and address every phase in its simplest form.  Once you can do that you can dig into the more complex angles of each.  

I hope this was helpful and if any of you need more insight or help developing your strategy I'm just a phone call away. - Anthony Martinez,President & CEO - Litigation Logic