Why Paper Is A Way of The Past...

Let me preface this by saying the following - Everyone of my constituents know that paper discovery has seen its day. However, I still routinely get pulled into discovery matters where paper was looked at as the best approach.

Though most of my client related material is on the computer, I still seem to wind up with lots of paper on all my projects. That is in part because some things are just easier to read or manage in paper. I have always been a more visual person and worked better with paper. Some (my parents) would probably blame that on some random learning disability I supposedly had which was the reason I ranked near the bottom of every class. So, for me, paper is the way to go - no matter the reason.

In the context of litigation discovery, however, the times they are a changing. In one of his decisions from a few years ago, Judge Waxse of the District of Kansas addressed the question of whether paper is a “reasonably usable format” in which to produce ESI, at least under the circumstances of that case. White v. Graceland Coll. for Lifelong Learning, Inc., 2008 WL 3271924 (D. Kan. Aug. 7, 2008), is a wrongful termination case in which the defendant produced e-mails and attachments in paper. Cn you say "archaic?" I thought you could. A paralegal converted the native documents to PDF, printed and produced them. The plaintiff moved to compel production of the records in their native format, arguing that he could not otherwise determine when particular records were created or sent, or whether the records had been modified. Judge Waxse agreed, finding that the defendant “failed to produce the emails and attachments in either the form in which they are ordinarily maintained, or in a ‘reasonably usable form,’ as required by Rule 34(b)(2)(E)(ii).”

Clearly, the e-mails and attachments in this case were not produced “in the form in which they [were] ordinarily maintained in the normal course of business,” which is nearly always native. So, the question became whether simple paper printouts of the records were a “reasonably usable form.” Quoting the Federal Advisory Committee’s notes to the recently amended Rule 34, he emphasized that the producing party’s “option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained {in the normal course of business} to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.” Moreover, where “the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.” Ultimately, Judge Waxse held that, paper was not a “reasonably usable” substitute for the native format records.

Now, I don’t think Judge Waxse is suggesting in this opinion that paper is never a reasonably usable form of production. But maybe he should have suggested just that. Many times, I hear clients and opposing parties discuss formats which are more difficult to deal with than the usual email or Word document. I agree that there are plenty of "challenging" file types to deal with including but not limited to CAD drawings, proprietary systems, etc. But technology has come along way since Judge Waxse's decision. Now there is a viewer for nearly everything out there. But I don’t think that Judge Waxse is suggesting that native format will always be required.  What the case does highlight, however, is the importance of thinking ahead about the form of production, and selecting a production format that will meet the reasonable needs of the requesting party. This requires that a party understand its own electronically stored information as well as the issues in the case, so that critical features can be incorporated into the production format. This point is where data mapping becomes so critically important. More and more corporations are realizing the extreme challenge they face because they don't have a data map. Perhaps the best lesson from White is one that seems to be a refrain in an increasing number of opinions on e-discovery: “The Court notes that this discovery dispute is an example of one which … could have been altogether avoided had the parties adequately conferred at their Fed.R.Civ.P. 26(f) conference[.]” Coming to the discovery conference prepared to talk about important issues such as production format, with a reasonable proposal that will adequately meet the opposing party’s legitimate needs, may save a great deal in legal fees and avoid some unfavorable outcomes once the issue is before the court. And a great rule of thumb is that whoever shows up at the meet and confer most prepared, will almost always get what they want. Just ask, Judge Peck.

The Ultimate Name Game - Predictive Coding vs Technology Assisted Coding

Predictive coding AKA Technology assisted review is the latest and greatest marquee topic among different e-discovery and legal bloggers, conference break out sessions, lunchroom banter around the vendors' water cooler and most recently the opinion written by a certain New York Federal judge who I have on very good information is a HUGE New York Yankees fan.

But what is an appropriate moniker for what we have thrown around as the next loaf of sliced bread?

Every time I hear someone call it "Predictive Review", all I can think is "Isn't that what a review is?" Any one who has setup a document review has had to train document reviewers whether attorneys or paralegals. How do we train them? We show them examples of documents and describe content that we are looking to code and how we want it coded. Based on inputting that data, we can "predict" how they will code the document.

Yes, I know. That is not the definition that the technologists want you to think of when they roll out their "better than the last guy's" black box software. They want you to believe that they can save you millions and do it perfectly. Well I hope they deliver both.

But isn't this more of a situation of technology assisted review? Based on the information we input into the system, we expect certain coding to happen. Once again, just like inputting data into human reviewers, the results of your technology assisted review is only as good as how well you "train" your software.

Let us not get away from the objective here and that is to reduce cost of discovery which is something whose day has come. I am very much in favor of any technology that can help my clients save money and be able to respond to litigation in a very effective manner.

Let's just figure out what to call it.

Comments, please?

Houston Masters Conference

I would love to have all my friends in the industry come join us for a very informative day at the Houston Masters Conference. Below you will find an invitation and code for registration.

ATTENDEE:

Half-day CLE in Houston on social media, predictive coding, e-discovery and more

With the use of social media growing daily, and the proliferation of mobile devices at work, law firms and corporate legal departments are facing new and ever-growing challenges of data management, privacy and security. When technology changes rapidly, legal professionals must stay on top of the trends to protect their clients and their businesses.

Litigation support professionals and attorneys have a forum to stay ahead of the developments, gather the latest information and learn best-practices advice on e-discovery, data protection, records management and more: The Masters Series for Legal Professionals.

You and a colleague are invited to the Masters Series for Legal Professionals in Houston at The Downtown Club on Tuesday, March 20, 2012 followed by a cocktail reception until 7:30 p.m. The Masters Series for Legal Professionals offers two educational tracks that will allow attendees to learn from corporate and law firm thought leaders.

Some of the sessions include:

-        Social Media: An update on evolving trends and the effect they are having on the e-discovery landscape

-        Predictive coding: What is it? What’s next? Why is it important?

-        Corporate perspective on e-discovery procurement trends

-        Reviewing and revising corporate privacy policies for today’s relevancy and retention standards

-        Lockdown: Ensuring data is safe, secure and inaccessible to intruders

-        E-discovery in the energy sector

This half-day event is FREE for attorneys and litigation support professionals, and includes lunch, a keynote address, CLE-accredited sessions and a cocktail reception.

To learn more about each topic and to register, visit http://www.themastersconference.com/2012-masters-series. You must use CODE AMTX2012 to register. Register TODAY – the series is limited in size and is sure to fill.

Social Media: The Move To Corporate

It is no longer just sneaking a peek to check facebook at the office or catch up on the latest gossip - social media is as much a part of business and functioning in the business world as email, the Bizhub at the end of the hall or the Starbucks downstairs in your building.

Quite simply, a clear indication is that many workers who are taking advantage of social networks to advance their careers, build their client base and stay in touch with what is happening in their industry.

In 2012 alone, it is projected that business will spend $200 million on online social networks to reach out to the business niche. This is expected to grow to over $400 million by 2014.

One of the best examples of the effectiveness of the medium is the popularity of LinkedIn, a social network for professionals. LinkedIn has grown from just over three million users in 2008 to almost 150 million in 2012 with two new members joining every second.

Networks like LinkedIn are an effective, multi-purpose outlet for businesses. They can be used to enhance product development and communicate with customers, for example.

This may account for why there are similar networks coming online almost daily aimed at almost every professional sector. Take, for example, MyCourthouse.com aimed at legal professionals, it has just over 1 million members. There is also Legal OnRamp and LawLink. Even some creative types have a network like Reel-Exchange. This vertical is for video and film professionals.

The differences between Facebook and LinkedIn are becoming fewer and fewer every day. Millions of business professionals and companies of all sizes have put up Facebook profiles in the last year. Realizing the potential, in 2009, Facebook jumped on the business bandwagon, entering an alliance with Visa. Hence, you will find the Visa Business Network for small businesses.

The fast-growing popularity of social networking sites make them hard to ignore for the business community. But the bigger question is how do we deal with them from an e-discovery perspective? As employees' online profiles start to match between LinkedIn and Facebook, where is the line drawn between business use and personal? 

 

Many businesses are currently facing the challenge of managing employees' online time. Companies are also having to come up with plans on how to manage the data on social networks that pertains to their company. Gone are the days of burying the corporate head in the sand and pretending that Facebook has no legal relevance. Almost daily, rulings are coming out discussing Facebook and their role in different business litigation matters.

Corporate CIOs and CTOs have to start looking at how to effectively managing an ever changing social media climate and topography. Because if they don't, what will become of their business?

How You Turn All That E-Discovery Work Into An Asset

Spoiler Alert! This isn't another blog about predictive coding. Sorry if the "flavor of the month" discussion was what you were craving.

I spoke briefly in my last blog about how the 'secret is in the dirt'. It is a term Ben Hogan used many years ago when discussing practicing golf. The point he was trying to make was that if you make a repeatable swing (or process) and practice it every time then that will lead to success on the golf course. So the more you practice and fine tune the swing based on previous feedback and make it into a repeatable process then the more success you will have. How do we translate that to e-discovery?

I am sure many of you see where I am going with this blog entry but wait just a second.

Many times, I have clients who once the litigation has been served immediately (or not so immediately) start down the path of what I like to call the traditional e-discovery workflow. The client (with or without assistance) has usually already begun the task of identifying potential relevant custodians during their legal hold process. And maybe even taking it one step further and identifying some data sources. The process of identifying data sources is a common first step which has been memorialized in the often overused EDRM model.

But let's take one step back. How did we get to the identification of those custodians and data sources? As one GC told me, "I feel like I start over every time I get a new case in the door. It is costing me millions I am sure." Generally, the lawyers get together with the appropriate business people and discuss who is involved from every level. That conversation usually leads (or should lead) to what data sources should be included outside of the custodial data. This conversation usually grows and grows and can go down many different routes leading to some sort of multi-version document that attempts to outline the inevitable data collection process. We are all more than familiar with this process. We are also more then familiar with how this process takes on a life of its own and changes more times than a Miss USA contestant changes outfits in ninety minutes.

But what if based on the profile of a litigation matter, you could already know the answers to these questions? Or at least had a really good idea of where to start?

The answers are in the litigation of the past and present. If corporations were take the data that is produced in the standard workflow process and build a knowledge base, then the sky is the limit. This information that is gathered can be used to determine the custodians that commonly occur in certain litigation. Your risk management team could look into litigation "triggers" - what events occur that trigger litigation inside the corporation. Human resources could look into issues related to labor and employment based on reporting from your corporations ediscovery knowledge base.

The building of the knowledge base is just like the building of any other database of information. And I will discuss in my next entry how we avoid the age old issue of bad data and build an effective knowledge base.

Turning E-Discovery Into An Asset

Many times, I get calls from clients to discuss the e-discovery aspect of a new case. The first few questions from both sides will always seemingly revolve around scope and potentially how the process might work for collection. But inevitably, the discussion gets to cost. And the next logical step in many cases is how to save money and not "spend more than my case is worth". Every corporate client inevitably wants to cut the proverbial corner.

Many corporations and law firms see the expense as a nuisance in the litigation life cycle. I have actually had counsel tell me before that they have tried and will continue to try and cut deals with opposing counsel to say "You don't ask for my electronic data and I won't ask for your electronic data." This tactic will likely be challenged as time goes on and become less and less possible.

But what if corporations used this information going forward not only on one case but as a way to track litigation? What if General Counsel could go to Human Resources or the corporate risk management team with valuable data that was mined from the e-discovery efforts of the litigation department?

As Ben Hogan once said "The secret is in the dirt". So why waste the dirt in e-discovery? Every online retailer from Amazon.com to Southwest Airlines is using customer trends to determine inventory, where to place 'in store' items, recommending products based on your prior purchasing and what items sell to what demographic. So why are corporations not using the same data in litigation to "learn" what trends there are within their corporate environment? These are all questions that have yet to be answered but the answers are the secret to corporations possibly saving millions of dollars in future litigation costs.

Over the next few posts, we will look at different ways corporations can use this data in a way that manages cost as well as mitigates risk.

To be continued....