Brett Burney will be participating in an E-Discovery Roundtable Breakfast on Friday, January 20, 2012 in Columbus, OH. Brett will be joining Geoff Wilcox of Black Letter Discovery, Marc Fulkert of Jones Day, and Joe Grespin of TechLaw Solutions. Details below:
Topic: “Designing an Effective E-Discovery Workflow”
Date: Friday, January 20, 2012
Time: 8:00am to 9:30am (Networking Breakfast at 8:00am; Roundtable Discussion begins at 8:30am)
Location: Black Letter Discovery
10 W. Broad St.
Suite 575
Columbus, OH 43215
I was honored to be invited to speak at LegalTech West Coast last month (May 17 & 18), but I didn’t get a chance to post on my experiences.
Fortunately, my friend Perry Segal was there and did a fantastic job of covering the show on Day 1 and Day 2.
I had not met Perry before the show, but he had graciously filled in for me last year when I had to miss a speaking engagement in the Los Angeles area. Since Perry lives close to the area, I reached out to him at the last minute and he was able to fill in. So I was elated to meet him in person and my only regret is that we didn’t have time to sit and talk (you’ll see from his Day 2 post that he was quite busy).
I had a great time at LegalTech West Coast. It’s a much smaller show than it’s New York sibling, but it’s always great to catch up with friends and network with folks in the industry.
As significant as the amendments were to the Federal Rules of Civil Procedure, I believe it’s even more important at the state level, although many folks overlook them. In fact, I’ve had litigators tell me they don’t have to worry about that “e-discovery stuff” because their case isn’t in federal court, even thought they’re sitting in a state that has adopted the FRCP amendments almost word-for-word.
The two best, updated resources I usually point folks to for state e-discovery rules is:
I highly recommend registering for Tom’s Fios webinar on December 9, 2010, and make it a point to learn more about how e-discovery rules are being adopted by the states.
I’m thrilled to be presenting a webinar hosted by Encore Discovery Solutions tomorrow (Friday, June 11, 2010) entitled “eDiscovery Project Management.”
The topic is a popular one these days. Many legal professionals “manage” projects everyday, but the intricacies of e-discovery require that we adopt traits found in the technical discipine of project management.
I’ve written about e-discovery project management for TechnoLawyer and that article is available here.
I’ve witnessed the same scenario in corporate environments concerning e-discovery that Winkler describes in the first few paragraphs such as “information security staff traditionally look at their role in the e-discoery process as ensuring the integrity of the data…” and “many people are intimidated by their organization’s lawyers – they just want to follow orders and gather the data.”
I even appreciate Winkler’s accounts of a couple of projects he’s been involved in and see the same blustering and pomposity in many litigation matters as described by Winkler.
But I don’t quite agree with Winkler’s assertions 1) that large corporations have “unlimited financial resources” to throw at litigation matters or 2) the perception of lawyers as arrogant in the context of dealing with IT professionals.
First, no corporation that I’ve worked with in the last few years involved in e-discovery has unlimited financial resources. True the legal department may enjoy a little more latitude in spending than other departments because of the pressures of corporate litigation, but unfortunately, a lot of that money is NOT spent on thorough, carefully considered e-discovery tools or scrutinized workflows.
Second, what Winkler asserts as the “arrogance” of lawyers in his article is what I would describe as the “technical ignorance” of lawyers. Winkler states that the question “do they even know what they are disclosing?” is the most critical question that information security professionals should be asking their lawyers because “nobody really knows what they are releasing.”
Winkler comments on how he has witnessed companies “try to image the data so that you cannot search the data with text based tools. There seems to be an attitude that if we can’t find the data, they can’t either.” And while I agree with Winkler that this is still unfortunately the attitude of many lawyers today, it’s not because the lawyers are arrogant, it’s because lawyers freely admit that they have no idea how an e-mail archiving system works (or even if the company has one), don’t know how their company’s network share drives are set up, have no clue about the company’s backup procedures, and couldn’t tell you what e-mail system they’re using.
Winkler also neglected to mention one other important player in this game – the outside counsel from a private law firm. I know very few in-house lawyers at corporations that directly handle their litigation matters – that’s usually a job delegated to more experienced litigators from outside law firms. The arrogance factor may be a little higher for those lawyers because of the environment they work in every day. In-house lawyers work for the company. Outside lawyers have to impress their entire portfolio of clients.
Now for the other perspective: Craig Ball offers some excellent practical advice for lawyers in dealing with IT professionals in his article “To Have and To Hold“ addressing litigation holds.
My favorite quote from Craig’s article:
“Consider IT and business units, then tailor your forms to their functions. What’s the point directing a salesperson to preserve backup tapes? That’s an IT function. Why ask IT to preserve material about a certain subject or deal? IT doesn’t deal with content. Couch preservation directives in the terms and roles each recipient understands.”
The key phrase there is “IT doesn’t deal with content.”
Now obviously, “content” is practically what IT deals with at every level, seeing as they manage “information.” But IT doesn’t fret about e-mail messages or documents from the standpoint of what they contain – they are much more concerned about how and where the data is stored (e.g. e-mail sub-folders & archives, network shares, what directories can they exclude out of a backup, etc.) Legal cares about the content of data first and then concerns themselves with where it can be located.
One last counter-point I would offer to Mr. Winkler – I completely agree that lawyers must become better educated about information systems at a company and they must understand the risks associated with “releaseing” information, but it is also imperative that IT professionals understand the full environment of the data they lord over.
For example, in just about every corporation that I’ve worked with involving e-discovery, the IT professionals have an extensive and thorough handle on e-mail. But when it comes to managing individual documents and files (Word, PDF, Excel, PPT, etc.) I have yet to find a secure, relevant and professional structure around the management of those documents. Corporations rarely use any kind of document management system or if they do, it’s poorly implemented, and often circumvented to the point of uselessness. That certainly doesn’t help the process of e-discovery.
Clearwell is clearly a leader in the e-discovery market. My review of version 5.0 was published by Law.com a few months ago and I was very impressed.
Most notable was the “Pre-Processing” module now incorporated into the Clearwell environment that provides insight into data before it gets populated into a review database.
I’ve always been a big fan of how Clearwell displays e-mail “threads” – in fact, I think they do it better than just about any other platform that truly attempts this.
Right around the time my review was published, Clearwell announced version 5.5 and they have also begun work on version 6.
I am attending The Masters Conference today (October 13, 2009) in Washington, D.C. I’ve attended the conference for the past two years and blogged about it both times.
The highlights from last year included the keynote address from Judge John Facciola and a fascinating panel I referred to as “the e-discovery three” made up of Judge Facciola, Judge Paul Grimm, and Judge Ronald Hedges.
Organizer Sasha Hefler and her team have put together another great conference this year expanding the focus a bit from simply e-discovery to a broader risk management discussion.
I will blog a post or two from the conference, a few tweets, (#MastersConference) and a write-up for Law.com on what’s new from the exhibitor floor.
Rob Robinson of Orange Legal Technologies has invited Tom and me to share a few stories that we’ve collected throughout our careers, and provide some handy tips and “lessons learned.” I always enjoy visiting with Tom, so this promises to be a blast.
(If you don’t already follow Rob on Twitter and his excellent “Unfiltered Orange” e-discovery update service, you’re missing out on a lot of information.)
The Webinar is today (Wednesday 9/9) at 12 noon Eastern. You can register on this page, or view the Webinar directly from this page.)
After an Expo Hall break, both Craig Ball and Patrick Oot returned for a fabulous roundtable session where they invited the audience to ask questions and even pose specific scenarios from their own projects for collective discussion. This was an amazing opportunity to get input from two well-respected luminaries in the e-discovery space and I frankly thought that more folks would have attended. On the other hand there were some othere terrific sessions in the same slot (such as the Keyword Search session with Jason Baron and Judge Rosenbaum).
I can frankly listen to both of these gentlemen for hours on end because I have such high appreciation for their experience and perspective, but it was tough to get questions from the audience. I finally asked Patrick if he could share a little bit more about Verizon’s decision to create a “homegrown” litigation hold system instead of purchasing a system from one of the vendors in the space.
Patrick explained again how they looked at some vendors like Exterro and PSS Systems, but when he discussed the situation with his security professional, Patrick was shown a similar notification system that was already in place for another purpose. As Patrick stated in the earlier session, not everyone has the luxury of skilled programmers on staff, but in Verizon’s case, it worked out best to develop the system in-house.
Patrick also mentioned that Verizon has purchased EnCase Enterprise and Patrick has the vision that one day the EnCase product will integrate with their current litigation hold notification system and their e-mail system so that they can hit one button, have notices sent out, track those notices through auto-responders, and all the while have EnCase collect the relevant data.
Another question came from my good friend Jeff Beard who now works with Daticon-EED – he asked about tracking the systems once a litigation hold comes into play.
Craig Ball answered that the biggest problem is getting a lackluster response from the folks that are responding to the litigation hold, which is usually an indication that top-down buy-in is lacking. Craig suggested that the hold notification should come from the business side and perhaps NOT the lawyer.
Craig then asked a question of the audience, inquiring about their biggest complaint when it comes to litigation holds.
One audience member bemoaned the fact that most complaints and document requests are so overly broad that the matters become unmanageable. Craig stated that the mistake most lawyers make is that they simply visit an e-discovery vendor’s Website and download a form which says “save everything.”
Craig then had an insightful comment to close the session:
I consider preservation letters a gift because it gives me insight into the other side’s real intention. If it says “save all the metadata,” then I know they are an ignoramous. But if they are specific in their request, then I know that I have to have my ducks in a row because they know exactly what they’re doing.
UPDATED April 8, 2009: I have subsequently learned that Patrick Oot works for a subsidiary of “Verizon Wireless” and have changed his company’s name to simply “Verizon.”
The first session I attended at ABA TECHSHOW was “Assessing the Big Picture: Planning and Implementing the Litigation Hold” ably handled by the mallifluent Craig Ball and the dapper Patrick Oot (of Verizon).
Both Craig and Patrick are seasoned speakers in this space and the session flowed smoothly. I’ve elected to share snippets of their conversation below:
Patrick Oot: We (Verizon) looked at tools like Exterro and PSS Systems but we ultimately decided to design our own application to do internal identification/collection work. Granted, not everyone has access to a group of programmers and web designers, but it was the right decision for our company.
Craig Ball: Don’t make the first time you meet someone from your client’s IT department be the day you do data collection – take them out to lunch or meet them some other way. IT calls things by different words and there is a massive lack of communication.
Oot: You still have to conduct an investigation to find out the facts of the case. At Verizon, they haver a former IT person that works closely with the legal team, and he knows where all the “dead bodies” lie. Also, it’s important to pinpoint the owner of systems: for example, the owner of the billing system at Verizon is NOT the billing department, it is someone in IT. The owner of their collection program is NOT the legal department, it’s someone in IT.
Question from the Audience: How can you know if you have the right person that knows where the data resides?
Ball: You have to identify the core person. But I often find that the biggest problem is that no one has really paused and considered what the case is all about. There is a tension between IT and legal that is not going away anytime soon. Outside counsel, however, are getting called to the carpet for the actions of their clients. If a client works behind the curtain, then you have a problem with your client, and you must have a talk with your client. You may need to tell them that you can’t represent them if they won’t let you in.
Oot: I have a little different perspective – I own a process within my company. Some lawyers that I work with internally want very little involvement from outside counsel. Other internal lawyers want outside counsel to handle the bulk of the work. We are fortunate that we can accommodate either perspective. One thing that outside counsel can do, however, is make it known to your clients that you ARE willing to speak with their IT folks, and that it is important to you. I also require outside counsel that I work with to update a preservation memo.
Ball: That brings up a great point about recording your work. You must have a solid mechanism for keeping track of your collection and presentation activities so that you can defend your processes when they are attacked. Also, you MUST go to your client’s office to look for responsive data. Even if an employee replies that they don’t have any old data sitting around, more times than not you’ll find when you visit their office that they have an old laptop sitting on a file cabinet or some USB thumbdrives in a desk drawer.
Ball: One of my best tools for litigation hold is a label maker. So often computers get wiped and data gets deleted because the IT professional didn’t know that it was something to be preserved. Sometimes I’ll even put a label inside the computer so that when someone opens the box they see it.
Oot: Verizon gets a lot of calls at their customer service centers that end with “you’ll hear from my lawyer.” We actually did a study and found that only ONE of those threats ever came true. Reasonable suspicion is a moving target, it oftentimes is based on a gut instinct.
Ball: Everyone talks about a “trigger” event. I don’t want you to think of it as a trigger because a litigation hold doesn’t go BOOM and it’s all over. Rather think of the litigation hold as a valve that opens a little bit at a time. First you might open the valve to preserve the machine of the person who was fired. Next you might open the valve a little more to preserve the machine of that person’s supervisor. You can keep opening the valve, but at some point the valve can be shut off when necessary.
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