eDiscovery News for September 30th 2009

 Wednesday news:

• W. Lawrence Wescott, in a lengthy but worthwhile read, tackles the issue of backup tape and problems associated with new methods of data preservation.  For smaller firms and businesses this will be a critical issue when budgeting and weighing your costs against your insurance risks.
• Marisa Peacock writes on Guidance Software’s new eDiscovery training program.  It will certify legal professionals in EnCase discovery software. 
• Dan Bolita at Integrated Solutions writes a very pertinent article addressed to companies about how real data storage, retrieval and budgeting issues are becoming. 
• California adopted the Electronic Discovery Act this summer as an amendment to the Rules of Civil Procedure.  Anthony Schoenberg discusses its scope over ESI, clawbacks, a “safe harbor” provision and the absence of a case management provision.
• Ed Valio at Gabe’s Guide tells us about the increasing virtual attendance of conferences. 

Ethics of eDiscovery: The Contract Attorney, Part 1

As I’ve posted before, most blogs talk about the logistics of document management operations and the budget concerns that go with it.  Others talk about the what’s happening on a global and upper-management level of the LPO industry.  All of this stuff is great and important, but it is important for us to gather a “global” understanding of everything that goes into a document review.  Today I’d like to start at the “bottom”; and although it sounds a bit derogatory to those who do the job, it is the most crucial aspect of running an efficient eDiscovery project.  Meet the Contract Attorney.

If you’ve worked as a Contract Attorney, known one or read the Temporary Attorney blog, you probably don’t get the best impression of the industry.  Most who work as one are disgruntled and listless – if they aren’t then their spouse probably does fairly well for the both of them.  A Contract Attorney has no real career track, but can make decent money, which usually is enough to scare and even mesmerize those who originally wanted to work in public interest or non-profit or anywhere else for that matter.  A lot also blame their law school because they believed it was the school’s duty to help provide for a good career in law.  Unfortunately those people were misinformed on what a law school is.  It is an institution based on a largely profitable industry created to bureacracize and profit from it.  But this is for another debate.

What’s important is understanding the type of employees you’re dealing with and the goals you’re trying to accomplish.  The fact is both of these are changing.  Typically over the past few years in the US, eDiscovery was a field where the big law firms who practiced it held all the cards.  There was no transparency and there was no incentive to be efficient.  Because client companies had no idea about eDiscovery software, metrics, output and how much this work actually cost, firms had little competition and little pressure to work collaboratively with their clients.  So whereas today the law firm goal is to retain clients and provide a cost-efficient service, in the past it was a means to extract money from the client – gouging if you will.

So I digress, but now with the evolution of a law firm’s goal, it becomes more important to understand, monitor and manage your contract attorneys.  These are changing as well in that, 1) there is a need for fast and quality reviewers, 2) these jobs are moving overseas to motivated and highly capable lawyers.  Either way, whether in the US or India or the Philippines, a PM must acknowledge the people under her and embrace the nuances to utilize them.

In Part 2 I plan on breaking down the biggest fundamental problem to managing Contract Attorneys:  Incentive.

eDiscovery News for September 29th 2009

Tuesday’s news:

• Ron at Prism Legal discusses how project management will be part of the answer to the ailing legal market.  He includes a variety of links to other articles discussing the issue.  Ron believes a new competitive market will cause law firms to become more efficient in order to provide a reasonable price.
• Eric Sinrod wrote a great article on how state courts are becoming increasingly involved in ediscovery rules.
• Neetal Parekh at Findlaw.com gives some tips on how to budget for ediscovery costs.
• Peter Vogel on his blog touches on the complications dealing with requests for deleted emails and their preservation.

eDiscovery News for September 28th 2009

 Happy Monday:

• Dave Cowen gives  a little insight to Q3 Survey results concerning litigation support staffing trends.
• Ralph Losey posts a 10-minute video of his law class at University Florida as a follow-up to last week’s post about the disregard for eDiscovery rules and need for discussion.
• Spamnotes asks “can you subpoena somebody’s Facebook page”?
• Gabe has a software review of Litfolio.
• K&L Gates has upcoming events.

eDiscovery News for September 25th 2009

Happy Friday!  Here are some good links:

• Mark Ross writes on the new UK phenomenon concerning low value personal injury claims.  What is it?  They’re being outsourced.  According to the Ministry of Justice this would 1) lead to early notification of claims, 2) promote early settlements, and 3) remove duplication of work.
• Ron at Prism Legal breaks down the 2009 ILTA Technology Survey.  He finds more trouble in the archiving of real media over that of emails.
• Financier Worldwide has a nice introductory article for those who want to truly understand why the need for efficient e-data storage is paramount to running a secure and cost-effective company.
• Craig Ball has a very interesting article on Law.com concerning cloud computing.

Which Project Management Method is Best?

Erika Santiago over at Electronic Discovery Project Management has introduced a 3rd project management application to her audience.  Agile was created within the last decade and is starting to be applied in legal services, and specifically eDiscovery.  Here was my evaluation of the different methods:

I can tell you for sure that PMI is a grading and inefficient method. Six Sigma is based on process and efficient process. What bothers me is that it’s derivative of mechanistic management processes. In theory it sounds good, and perhaps for certain soft industries it could work, but at this juncture in the eDiscovery industry I don’t think it’s the best way to build a model for optimal success. Agile is intriguing because the legal world is moving towards transparent, cost-effective, and most importantly, progressive measures to solve the fundamental inefficiencies that are centered at the core of American legal services. It seems to get back to what sales and business was all about. Providing top service to the client. This can only be done through good people who know how to manage. Not the types that I see in my work that are purely employed to carry out orders. They are not thinkers. They are merely purveyors for a mediated and convoluted web of close-minded ego-nerds. Because law firms are ultimately businesses, and the trend of legal output is to become as efficient and high-quality as possible, they must compete with these trends to keep their business. And if you’re a partner, you better start to embrace a world of transparent operations and fixed fees.

eDiscovery News for September 24th 2009

Lots of interesting stuff:

• Gabe summarizes a story from the Human Resource Executive that explains how eDiscovery isn’t as simple as finding the right software, but dealing with the people who use it.
• Dave Cowen on his Opportunity Knocks Blog, writes on his impression that the need for technologically minded legal professionals are going to be sorely in demand, because people in the field have experienced an increase in work and hours.
• Electronic Discovery Law has an interesting court ruling on the waiver of privilege in the inadverdent production of documents.
• Ralph Losey discusses the absence of eDiscovery consideration in Federal Rules at his eDiscovery Team blog.  Long, but really informative read.
• Electronic Discovery and Evidence reminds you: DON’T DELETE YOUR EMAILS!!

The Posse List to Offer Certification in Catalyst CR

As the legal market has shown an increased demand for specialized contract attorneys, after TPL spoke with many big-time vendors and law firms, it created an eDiscovery certification program.  October 7th has an afternoon and evening slot open for the certification program.  The program is free, and after training, participants will be given an exam on reviewing using Catalyst CR.  If you pass you get certified.  My question to them is how does this really help you considering how many forms of electronic review software is out there:  Concordance, Stratify, Summation, iConect, Ringtail, etc.?   I’m guessing Catalyst CR is building prominence, and it must be a software of choice for Clutch Group, since they are running the certification.

LPO News for September 23rd 2009

Hey!…

• Stephen Seckler, at The Middle Office, hooks up a link describing the transformation of big law firms – hiring less associates, outsourcing large document reviews, AND fix-fee arrangements!?  I shed a tear.  I never thought I’d see the day.
• Gabe’s Guide posts one of its sponsors, Ignited Discovery, was listed in the “Inc. 500”, which recognizes the fastest growing companies every year. 
• Metalogix came out with a survey outlining where the continued problems for email archiving remain: complexity and cost.
• Michael Bell at LPO Source conducts an interview with Doug Hubbard, author of “How to Measure Anything”.

Paper vs. Electronic Records

Per a press release at sourcewire.com, it’s reported that paper records are managed much more by businesses than their electronic ones.  The survey, done by AIIM – a content management community based in the UK, was taken by 768 of the AIIM community.  Here are some interesting numbers:

• 26% of organisations have no record management system in place for the majority of its electronic documents
• 56% of a procedure in place to freeze electronic documents in times of litigation, compared to 71% who have one in place for paper.  Leaving an astounding 29% with no procedure at all.
• Over 50% are increasing their paper records, while 21% are decreasing
• 40% print electronic records in order to store them
• 1/3 aren’t confident their records would not be changed, deleted or inappropriately accessed (43% for companies with over 5,000 employees)

With a lot of experience in the document management field, I find this survey astonishing.  Of course, I’d like to see the trend here in the US.  Either way, this is a trend that must be realized by any organization whether people want to recognize it or not.  Think of the CMS as an insurance policy against incurring tremendous time and costs.  Companies should be consulting with professionals about the type of information that is created and transferred during the regular course of business.  Some should go as far as automating the categorization of their records on a consistent basis.  So when litigation does happen, the tedious and costly chore of gathering, sorting and categorizing records can be well along its way, and possibly even skipped.