Much of the buzz around E-Discovery centers around the high costs associated with legal review, and how to control those costs.  Often companies pay $2,000 per GB to review documents for responsiveness and privilege, and techniques such as keywords agreed on by both parties at the Meet and Confer 26 (f)  meeting are used to help control the data that must be produced.  As the amount of Electronically Stored Information (ESI) collected for a given case increases, algorithmic techniques such as keyword search and even topic based search become more and more important to reduce the number of documents actually reviewed.  Many experts agree that with the volumes of data collected today, it is impractical to use human eyes on every document.

While review cost per GB is high, the accidental release of even one privileged document from defense to plaintiff can be critical.  Even though rule 502 provides some protection if the document is quickly determined to be privileged, and the defense can request the document back, there is no way to really measure how profound the impact of one such admission on the outcome of the case.  One document detailing the general strategy to be used by the defense could easily be read by many parties at the plaintiff before it is removed from the collection, and proving that privileged information was used improperly is nearly impossible in all cases.

Analytics: Insurance Policy for the Defense

Enter analytics.  Assume that the initial collection of 100GB has been culled and deduplicated down to 20GB by exclusive culling such as NIST culling, as well as inclusive culling which only includes documents containing the keywords agreed for the case at the Meet and Confer.  Still our collection easily contains thousands of documents which have been reviewed by different levels of reviewers, from lawyers intimately knowledgable about the case, to reviewers for hire which could be even overseas in outsourced review shops.  What can be done in order to ensure that none of the documents produced by the defense are in fact privileged or attorney client work product?  

Three Steps to Increased Confidence

The first step is by the use of email domains, and accounts.  Any domain that is associated with inside our outside counsel should be filtered into a privilege folder.  Remember to include all aliases for these people in the search, and while it is not likely they will use multiple email addresses aliases are certainly possible.  Joe.Smith@corp.companyx.com or Joe.Smith@company.com should both be found.  MetaLINCS Dynamic Directory quickly provides all email domains, and email accounts that can be copied by bulk operations to the privilege folder.

The second step is to find people that were involved in privileged legal discussions by using the Social Network facility in MetaLINCS.  By looking at the Social Networks that include counsel, communication patterns can be observed and the intersection between people involved in communications with legal counsel can be ascertained.

The final step is through the use of keyword, wildcard or other advanced searches to find documents containing the names of legal staff, names of the law firms involved in the case, as well as even fax numbers of the fax machines at the law firm.  Faxes that have been tiffed and ingested with metadata could be found easily, and even if their contents do not include the strings for firm name or counsel name, they should be reviewed carefully for privilege.

Privilege review is too important to leave to chance.  Analytics can be the insurance policy required to avoid disclosing hot documents to the opposing party.  MetaLINCS Analytics are second to none, and can make this process quick and efficient.

Rich Faris, i365

In the case with OFHEO (from LegalTechnology), a nonparty in In re Fannie Mae Securities Litigation, OFHEO was subpoenaed by three senior executive defendants to produce records collected during their investigation of Fannie Mae in 2003.  Certainly not considering the full import of their decision, OFHEO agreed that the requesting parties could designate search terms for the discovery.  In the end defendants submitted over 400 search terms, 150 of which contained wildcards, which returned approximately 80% of the offices’ e-mails, or a total of 660,000 documents.  Required to search the offline backups as well as live documents, the OFHEO incurred over $6 million in discovery expenses (9% of its annual operating budget), and still were held in contempt for late production of the documents.  Had OFHEO studied the corpus of documents with E-Discovery software and done keyword search sampling they might well have made a stronger case for a much smaller set of keywords.

In the Teva, Loeb & Loeb Case (from American Lawyer.com) a missed discovery deadline will cost Teva the chance to take away some of an estimated $41 million of Eli Lilly’s exclusive sales.  Teva made a last minute change to its ingredients for a generic version of Eli Lilly’s osteoporosis drug Evistra.  Two of the new drug samples and 27,000 pages of related documents were turned over a few weeks after the discovery deadline.  Due to the missed schedule Lilly made the case to extend their exclusivity for Evistra through the beginning of the trial.  The blog site patentbaristas.com estimates the value of these two weeks at the $41 million.

How can corporations avoid these pitfalls?  By being on the top of their E-Discovery game, including having proven processes ready for fast Early Case Assessment and efficient review.   Whether corporations choose a managed service, using our resources and secure hosting facilities, or on premise with a MetaLINCS appliance or software the result is lower risk and lower cost.

With MetaLINCS complex corpus wide searches of cases the size of OFHEO take seconds to return, processing is fully incremental, and expansion of wildcards, stemming and keywords are defensible using Pinpoint Search.    In addition, Pinpoint Search would bring visibility to relevant variations of the 150 wildcard terms ,  providing a better understanding of the document set than the producing party,  lowering costs and improving chances for a favorable outcome.

The 27,000 pages of documents produced by Teva could have been searched, culled, reviewed for both responsiveness and privilege quickly and efficiently.  Who knows how much of the $41 million Teva would have captured with their generic drug?

Rich Faris, i365

Like two peas-in-a-pod maybe they’ll share a cell in the not too distant future. Looking at the schemes these two are charged with, I’m wondering if their deeds will somehow overlap upon each other’s in some type of Kevin Bacon, Six Degrees of Separation sort of way. I can only imagine how that conversation will go down in Sing Sing.

Anyway, let’s get back to Marc Dreier. So aside from deserving to go to jail for the acts he’s committed, I’d just like to throw in the fact that he’s now put good people out of a job. Lots of them. And all just in time for the holidays! Aside from New York, they also had offices in Los Angeles, Santa Monica, Calif., Pittsburgh, Stamford, Conn., and Albany, N.Y. – I’ve read where partners are taking book and going in all directions. Associates were told not to expect their pay check today. Lovely.  U.S. District Judge Miriam Goldman Cedarbaum has appointed Mark Pomerantz of Paul Weiss to oversee and make no mistake, Mark Pomerantz is all-over this.

Paul Weiss, great firm. Marc Pomerantz, great attorney. In all this I just keep coming back to all the non-combatants as I call ‘em. I mean from the world I come from. The secretaries, the paralegals, the lit support folks, accounting department staff, the mail room, the folks who clean the place up when fraud boy is done with his coffee and danish. I know attorneys and support staff who work there that I’ve worked with at other firms and this is one of the worst things imaginable.

Now Marc Dreier’s fellow inductee today Bernard Madoff, would probably think Marc’s swindling is small potatos compared to the size of his Ponzi scam. The oldest scam in the book and people just keep getting taken. And again, regular people keep getting hurt. Madoff apparently fooled the brightest and best. But still, it’s the same old scheme. Shame on them both. From what I’m hearing and reading, this Ponzi thing is going to touch so many banks and firms, no one will believe.

Real Insight and Thought Leadership Ahead – Enjoy and Comment!

On the Mark

“E-Discovery in the Next Decade: Finding a Way Out of Purgatory”

Last week at the annual meeting of The Sedona Conference’s Working Group 1 in Palm Springs, I noted that during 2008, e-discovery seeped into public consciousness. Not just particular high-profile e-mail cases like Enron or the Office of the Vice President, wherever that may be, but electronic discovery itself as part of the civil justice system. 

According to the reporting classes, e-discovery was bad news.

The media blitz at the end of the summer began with an article in the Economist dated August 28 entitled “The Big Data Dump,” in which the reporter posited that with the advent of e-discovery, “the civil-justice system as a whole threatens to get bogged down.” The article quotes Supreme Court Justice Stephen Breyer, expressing concern that, with ordinary cases costing millions just in e-discovery work, “you’re going to drive out of the litigation system a lot of people who ought to be there” so that “justice is determined by wealth, not by the merits of the case.”

The Wall Street Journal chimed in a few days later with an article dated September 6 entitled “Digital Data Drives Up Legal Costs.” The story began, “[l]awyers who work on complicated civil trials say the system is too expensive, especially the handling of electronic evidence such as emails, voicemail and text messages.”

Two days later the Los Angeles Business Journal ran a story with a more appropriate title, in my view: “Old-School Attorneys Face E-Discovery of New World.”

This flurry of press coverage was precipitated by a report released by the American College of Trial Attorneys and Institute for the Advancement of the Legal System, based on a survey of more than 1400 members of the American College, 87% of whom believed that e-discovery costs were burdensome, and that the new rules had added to that problem. 76% believed that judges don’t understand the costs and burdens they associated with e-discovery. That’s right, blame the judges.

Ralph Losey, in his always informative blog, E-Discovery Team, looked a little closer at the survey and reported that only 60% of the respondents had actual experience with e-discovery, meaning that 40% were more-or-less parroting the buzz among litigators these days. But another statistic Ralph reported from the survey was even more revealing: the average number of years in practice of the respondents was 38.

Now I have great respect for members of the American College of Trial Attorneys.  They represent the best of their generation.  One of my mentors when I was a newly-minted attorney at Bingham Dana & Gould twenty-five years ago was an active member of the American College who later served on the Civil Rules Advisory Committee.  We have several members of the American College in Sedona Conference working groups. 

But as I read the survey, especially the free-text comments of the respondents, an image began to develop in my mind:

 ”Old man shaking his fist at the clouds.”

“Hey you kids – get off of my litigation.  And take your Googles with you.”

I know these people.  I live in Phoenix.

Imagine that.  38 years in practice.  Longer than most of the associates in their firms are old.  At least 60 percent  of them are conducting e-discovery in civil litigation. And they are thinking in quintessentially protodigital terms.

There’s that word – “protodigital.”  I’m trying to get it into the Oxford English Dictionary.

What does he mean by that? “Protodigital?”

This senior generation of litigators (and I’m at the tail end of it myself) is fully cognizant that we live in a digital world and themselves are likely use computers to some extent – for word processing, for email, to read a court decision online, perhaps to even generate a spreadsheet.

But they are still thinking of the digital information system as a set of tools for producing information (the document, the email communication, the legal opinion or spreadsheet) that they will manage as though that information were paper-based. They think that it is somehow appropriate to manage digital information, and discovery, by analogy to the paper world. This failure of many litigation decision-makers to think beyond the protodigital is having catastrophic consequences for the ability of our civil justice system to deliver the just, speedy, and inexpensive determination of ANY action.

Last June, National Public Radio’s “Morning Edition” featured a special series of reports on the social consequences of email.  Ari Shapiro, NPR’s Washington, DC-based legal correspondent, called me to get examples of legal liability associated with email messages, which I was happy to provide. After all, email files have become a favorite target for lawyers and government investigators hunting for the proverbial “smoking gun.” But when Ari asked me what I thought has been the greatest impact of email on the civil justice system and the legal profession, I didn’t dwell on the potential legal liability that the content of any particular email message might carry. My concern is the vast resources spent to locate, preserve, and review email for production because, as NPR reports, “[d]aily e-mail volume is now at 210 billion a day worldwide and increasing.” 

The central problem with email, as I see it, is not the smoking gun. It’s the smoke.

I was quoted as saying, “Today a young person graduating from law school and joining a large firm in one of our major cities can look forward to perhaps three or four years of doing nothing but sitting in front of a computer screen reviewing e-mail and other electronic documents for litigation.”

This vision of purgatory created something of a stir, including an email (appropriately enough) from a law firm recruiter who blamed me — with tongue in cheek, I hope — for destroying the morale of her summer law clerks. But I am not the first person to note that the ascendancy of e-discovery coincides with reports of a decline in civility and self-esteem in the legal profession.  Just as the industrial revolution of the 19^th century brought about the proletarianization of manufacturing workers, the information revolution is proletarianizing information workers — legal professionals chief among them. We are attempting to manage the information revolution with the tools of the industrial revolution.

I conjured this vision of purgatory the same day that Larry Center emailed me and asked for the title of today’s talk to put in the conference brochure. So there you have it.

We now live in a digital information world that is markedly different from the old paper information world.  The differences are many, but they are all corollaries to the two principle characteristics of digital information systems that set them apart from paper-based information systems, and make digital information systems impossible to manage using the techniques developed for a paper-based world.  These two characteristics are volume and complexity.

Jason Baron and George Paul in their recent Richmond Journal of Law and Technology article, “Information Inflation: Can the Legal System Adapt?” paint a vivid picture of what this information explosion means in the context of litigation.

“Probably close to 100 billion e-mails are sent daily, with approximately 30 billion e-mails created or received by federal government agencies each year, ” they report, a little less than NPR’s estimate.

And they set up a concrete illustration: “litigation in which the universe subject to search stands at one billion e-mail records, at least 25% of which have one or more attachments of varying length (1 to 300 pages). Generously assume further that a model “reviewer” (junior lawyer, legal assistant, or contract professional) is able to review an average of fifty e-mails, including attachments, per hour. Without employing any automated computer process to generate potentially responsive documents, the review effort for this litigation would take 100 people, working ten hours a day, seven days a week, fifty-two weeks a year, over fifty-four years to complete. And the cost of such a review, at an assumed average billing of $100/hour, would be $ 2 billion. Even, however, if present-day search methods [. . .] are used to initially reduce the e-mail universe to 1% of its size (i.e., 10 million documents out of 1 billion), the case would still cost $20 million for a first pass review conducted by 100 people over 28 weeks, without accounting for any additional privilege review.”

We all take Jason and George’s initial scenario in the spirit in which it was intended – theatre of the absurd.  But they have developed for us an illustration of the consequences of protiodigital thinking – managing digital information as though it were paper. And that only takes the volume side of the equation into account.

The complexity of digital information systems means that it is virtually impossible for any one individual, or even a small group of well-managed individuals, to fully understand where all potentially relevant digital information may be located, how it can be preserved and retrieved, what its inter-relationships are, and how it can be presented.

Complexity itself is complex, because digital information systems present us with several levels of complexity.

We have complexity by virtue of the dispersed nature of digital information systems. We have complexity by virtue of the context in which that information is found — various operating systems and applications.  We have complexity by virtue of the necessary overlay of various administrative policies and procedures. We have complexity even at the level of files themselves, with different layers of apparent data depending on the user’s choice of viewing format, embedded edits and commentary, and metadata.

This stuff is complex.

But perhaps the most complex complexity is the essentially ephemeral nature of ALL digital information.  The nature of paper-based information is that the information is bound up in a relatively permanent and immutable physical object, a piece of paper, that obeys the laws of physics as we commonly understand them.  It is found in only one place at a time and tends not to spontaneous morph into something else. In the paper world, the physical artifact IS the information – they are inseparable, and as long as the integrity of the physical artifact can be ascertained and protected, the information stays the same.  We have the Egyptians and their concept of the relationship between writing and reality to blame for this. Yul Brenner, playing the role of a fictional Ramses II in The Ten Commandments, summed up in that classic Hollywood catch phrase – “so it is written, so it shall be done.”

Lawyers of a certain age, and law librarians like me, love that sort of security and have built a world view around it.

On the other hand, the ephemeral nature of digital information — its mutability, transportability, and ability to replicate itself and evolve into something else, is central to its value to a new generation.  It is why business and government, and students, and artists, and engineers, and grandmothers invest so much time, money, and imagination in obtaining, using, and extending digital information and systems.

I have to always point out to lawyers, who tend to think on the dark side, that e-discovery is not all doom and gloom.  There are reasons why business, government, and individuals have wholeheartedly embraced the digital information and communications world. It isn’t because digital information is costly and burdensome. It’s cheap and useful.  The IT revolution is at the root of the tremendous increase in productivity and prosperity we’ve enjoyed in the past generation.  Digital technologies make it possible to manage vast amounts of information, transport it instantly at no cost, and create new information.  Every other profession, to one degree or another, has embraced digital information technology, for all its volume and complexity. It is only the legal profession, and chiefly litigators, who see the volume and complexity of digital information as costly and burdensome dangers or opportunities for tactical gamesmanship.

Volume and complexity.

These are the two characteristics of the digital information world that make it qualitatively different from the paper information world.

Traditional concepts of discovery – document preservation, request, review, production, and presentation — completely break down under the weight of volume, the complexity of the material, and the pressures of deadlines and budget. But the consequences go far beyond missed deadlines and budget overruns, as bad as those may be. The digital information revolution threatens the traditional legal profession and the traditional administration of justice itself.

Are we facing the prospect of the next decade of e-discovery being the endless document review purgatory so aptly portrayed by Jason Baron and George Paul?  Is there a way out of this?

There is.

Several years ago when I was at the Federal Judicial Center we were involved in a study of e-discovery disputes and the strategies United States Magistrate Judges employed to resolve them. One of the little tips that came out of this was that if you get the IT people together from both parties, they will often solve the problems that the lawyers thought were insurmountable. Earlier this week at the annual meeting of the American College of Business Court Judges, an Indiana state court judge with a heavy docket of mass tort and pharmaceutical cases made the same observation.  It’s become part of our received conventional judicial management wisdom.

But let’s step back and look at this, and see if there is anything we can generalize about this to apply to all cases, even those that don’t have IT people, and maybe even apply to ourselves as members of the legal profession.  What is it about these IT people that they can solve problems that great legal minds can’t solve and perhaps even created?

First, these people are younger.  Maybe not in years, but in spirit.  They are members of the Internet generation, even if they have been 38 years on the job.

Second, they do not see complexity and volume as problems, but as their element, and even as assets. Volume and complexity are opportunities. They live in a digital information environment and are perfectly willing to apply technology’s tools to solve technology’s problems.  In fact, it wouldn’t occur to them to do otherwise.

Third, they are team players. They cooperate to find a solution, knowing that they each own pieces of both the question and the answer.

What lessons can we learn from this?  Three:

(1) Pay attention to young people

(2) Use technology’s tools to solve what we perceive as technology’s problems, and

(3) Cooperate

First, pay attention to young people.  Don Tapscott in his book, Grown Up Digital: How the New Generation is Changing Your World, reports on a 12-nation study of 8,000 people born between 1978 and 1994 – that is, born after the average respondent to the American College survey made partner. Net-Geners. Here’s what he concludes from this survey:

• Net-Geners are smarter, quicker, and more tolerant of diversity than their predecessors.
• By the time they are 20, Net-Geners have spent 20,000 hours on the Internet. Members of their parent’s generation had spent 20,000 hours watching TV. Think about that.
• Net-Geners care about justice and ways to improve society.
• They value freedom and choice.
• They love to customize and personalize.
• They scrutinize everything and value integrity and openness — to a fault sometimes, when it comes to our generation’s concepts of personal privacy.
• Net-Geners love to collaborate.
• They expect constant innovation.
• They expect to give and receive constant feedback.
• And perhaps paradoxically, compared to prior generations, Net-Geners have a higher opinion of their parents.

These are the students in our law schools today.  Actually, we’ve been graduating them from law schools for about five years now. But they are not being taught digital information management in law school.  The skills they possess they have developed on their own or from other course work, and are not integrated into their legal training. And from what I can see, they are getting all their extraordinary innovation, collaboration, openness, and Internet-derived information seeking and management skill beaten out of them if they have the misfortune to be drafted into a document review project. 

Why do we do this? Young lawyers trained in digital information management will lead us out of purgatory, not the old men shaking their fist at the clouds.

Not only are these young people coming into the legal profession, they are also becoming your clients. And for all their respect for the older generation, they are going to be making the business decisions in the future, and they will be making those decisions based on their Internet-derived information seeking and management skills. They will look at the business practices of law firms and litigators, scratch their head, and say, “this is crazy.  We’re not going to pay for that.  Let’s figure out a better and higher use of legal intellectual capital and automate that process. Let’s digitize it, distribute it, collaborate on it, and apply some innovation.”

Because no speech made within the historic boundaries of the District of Columbia this week can fail to allude to the international financial meltdown, let me make the obligatory observation that the Net-Geners who are going to be driving business decision-making for the next decade will likely be doing so, at least for the next couple of years, in the context of significantly reduced financial resources.  The massive mismanagement of e-discovery in the past few years by the protodigital generation has been grudgingly underwritten, to a large extent, by clients who had the resources to pay the bills and were never presented with alternatives.  Those days are over, and the Net-Geners will soon be paying the tab, figuratively and literally, and calling the shots. As Sherry Harris, on the board of The Sedona Conference Working Group One and the advisory board of this conference has said, “business problems have business solutions,” and today’s business is information technology driven.

Young lawyers will use technology’s tools to solve what we perceive as technology’s problems, and so will young clients.

And just as this new generation sees the value in collaboration, we are beginning to wake up to the value of cooperation in e-discovery.  The Sedona Conference Cooperation Proclamation, which I have no doubt will be discussed at length over the next two days, points out that discovery is not designed to be an adversarial process, but rather the cooperative phase of an adversarial system. 

It is an information-seeking and information-management process, and unlike past generations, Net-Geners know from experience that when you have volume and complexity, the only way to get the information you need is to cooperate in the process.

Perhaps it is because of my training as a librarian, but this concept always seemed to be a no-brainer to me, particularly in what Jason Baron calls the area of “asymmetric knowledge,” where one party is familiar with the information resources and the other is essentially clueless. In the library and archives world, we spend considerable resources selecting, culling, categorizing, and organizing information to make it transparent and accessible.  When someone needs information, we sit down with them and collaborate in what the library academics call the “reference interview,” a process where together we assess the information project, define the information need, investigate and present possible sources, and get feedback on whether we’re on the right track.

That makes sense, and we’ve all experienced it personally. Heaven is a reference library with a helpful and well-informed staff. Purgatory is a Department of Motor Vehicles. Regardless of our intentions when we get to trial, is our vision of discovery, and the way we treat each other, closer to the reference library or the Department of Motor Vehicles?

I’d like to close with an extensive quote from a recent case that we will certainly discuss today and tomorrow, if for no other reason than that Judge Grimm is here with us.  I beg the indulgence of those who just came from last week’s meeting in Palm Springs, because I read this there, but I think it sums up this point eloquently.

From Mancia v. Mayflower Textile Services: “A lawyer who seeks excessive discovery given what is at stake in the litigation, or who makes boilerplate objections to discovery requests without particularizing their basis, or who is evasive or incomplete in responding to discovery, or pursues discovery in order to make the cost for his or her adversary so great that the case settles to avoid the transaction costs, or who delays the completion of discovery to prolong the litigation in order to achieve a tactical advantage, or who engages in any of the myriad forms of discovery abuse that are so commonplace is [...] hindering the adjudication process, and making the task of the “deciding tribunal not easier, but more difficult,” and violating his or her duty of loyalty to the “procedures and institutions” the adversary system is intended to serve. Thus, rules of procedure, ethics and even statutes make clear that there are limits to how the adversary system may operate during discovery.

[...]

“It is apparent [...] that there is nothing at all about the cooperation needed [to conduct discovery] that requires the parties to abandon meritorious arguments they may have, or even to commit to resolving all disagreements on their own. Further, it is in the interests of each of the parties to engage in this process cooperatively. For the Defendants, doing so will almost certainly result in having to produce less discovery, at lower cost. For the Plaintiffs, cooperation will almost certainly result in getting helpful information more quickly, and both Plaintiffs and Defendants are better off if they can avoid the costs associated with the voluminous filings submitted to the court in connection with this dispute. Finally, it is obvious that if undertaken in the spirit required by the discovery rules, particularly Rules 26(b)(2)(C) and 26(g), the adversary system will be fully engaged, as counsel will be able to advocate their clients’ positions as relevant to the factors the rules establish, and if unable to reach a full agreement, will be able to bring their dispute back to the court for a prompt resolution. In fact, the cooperation that is necessary for this process to take place enhances the legitimate goals of the adversary system, by facilitating discovery of the facts needed to support the claims and defenses that have been raised, at a lesser cost, and expediting the time when the case may be resolved on its merits, or settled. This clearly is advantageous to both Plaintiffs and Defendants.”

[...]

In closing, there is a temptation for me to fly back to Arizona as quickly as possible, as the temperature outside plummets, and the bombs I’ve just planted begin to explode.  But I plan to stay here for the next two days, because I’m here to learn.

I’m going to listen carefully to case law developments from other peoples’ perspectives.  I hope the Jonathan and John, our scheduled “debaters” in the next session, engage in some “dialogue” as well.  I know that they know how.  But I’m also looking forward to the judicial panel, the technology panel, and the important discussion of privilege this afternoon.  I’ll be taking notes.

It will be difficult to choose between the tomorrow’s breakout sessions. But I’m particularly interested in how we address the growing gulf between the US and the rest of the world when it comes to protecting personal privacy; in defining the duty to make reasonable inquiry; in e-discovery in the criminal justice system and e-discovery in smaller cases; and in early case assessment – the foundation for the proportionality analysis that we all agree is key to just and cost-effective e-discovery.

So much to learn, so little time, so many OLD friends to greet and NEW friends to meet.  So forgive me if at any point in the next 48 hours I act a little confused — exhibiting the effects of information overload and intellectual overstimulation — like an old man ABOUT TO shake his fist at the clouds.  I deeply appreciate the invitation to be with you all this year, and I look forward to a tremendous conference. Thank you.

One of my favorite writers, Jonathan seems to always be on-point. His story today “Even Law Firms Feel Strain of Layoffs and Cutbacks” crystalizes the picture of how the economic downturn has impacted Law Firms across the nation.  Make no mistake, these are difficult times and Jonathan knows this community better than most.  Aside from his great writing for the NY Times, he’s also written for The Washington Post and has worked as a Wall Street Attorney.

The article takes you through what’s happening now, he touches upon the Thelen and Heller melt-downs which left literally hundreds of attorneys out-in-the-cold. At i365 we’ve been witnessing the tightening of both outside and in-house counsel money belts and that they’re buying our technology for the sheer money savings it brings. Anything that will help bring down collection and review costs is critical now.  Jonathan’s article points out that over 1,000 attorney jobs vanished in the month of October nationally. This is a sobering statistic when coupled with the fact that Corporate America is filing less lawsuits than in the past.

(11/12 update – White & Case lays off 80 attorneys and 200 support staff)

Real Estate and M&A Deal work is drying up and only the heavyweights are getting the deals that are being done.

While the traditional wisdom that Litigation picks up in down economic times once held true, corporation to corporation litigation may now be viewed as discretionary spending and with that viewpoint so goes the billable hours of some firms.

Corporate Law Departments are utilizing more of their in-house attorneys for their expertise to tap the greater efficiencies they bring in conjunction with using sophisticated tools like i365’s MetaLINCS technology.

You should read Jonathan’s article as soon as you get a chance. It’s excellent.

Item Last – Today is Veteran’s Day and we should ALL take a moment to remember, honor and thank our men and women in the military who are sacrificing so much for us.

On the Mark

I also have some note worthy industry moves to report.

Let’s start with those:

Joanne Lane, a friend and colleague from the Litigation Support Manager circles has left Kramer Levin after many many years. She’s taking a position with Met Life here in NY and I couldn’t be happier for her.

Joanne is fantastic at what she does and she single handedly built Kramer’s lit support effort from the ground up. Joanne started it all years ago as a paralegal with no resources but armed with an abundance of sheer determination.  She goes out on top, leaving as a Director. She casts a very large shadow indeed for the next person to take that role. Now what makes this move so interesting is that she’s going to Met Life and taking the position vacated by another friend and colleague, Juan Nolasco.
Juan Nolasco is another industry veteran who has built departments along the way and actually brought some order to the asylum over at the old Dewey B.  Juan goes to my old shop Milbank Tweed to take a newly created position that will bring greater efficiencies to their in-house attorney review efforts.

On the Mark wants to take a moment to congratulate both Joanne Lane and Juan Nolasco, not on their new positions but on the great work they did along the way which made these new positions possible.

Cheers to you both! You deserve it.

Now, on the technology front here at On the Mark, I’ve been requesting an ability to post YouTube videos for some time and I’ve been told I now have that capability.  So, to test this functionality, let’s tee-up a clip from the MER Conference and Judge Shira helping the attendees with a mock 26(f) “Meet and Confer” – Notice Craig Ball, John Jessen too!

Judge Shira Sheindlin presides over a Mock Meet and Confer

(special thanks to Mark Clem)

We’ve also added Twitter/Twit This capability, too.

But to be clear…it’s aptly named The Cooperation Proclamation and like a legal landslide,  it will soon be sweeping the Nation.This is a launch of a multi-year, multi-front cooperation campaign and it’s really going to make an impact by not just asking folks to cooperate, but to give them the tools do so!

(I believe I’m On the Mark about this one). 

But regardless of the name, The Sedona Conference®  has again seized upon satisfying a glaring need in our community and brought some of the brightest and best to the table to effect change for the better, in the e-discovery world.

At 12:00 pm today EST, The Sedona Conference®  will be holding a press conference to formally announce the publication of one of that group’s finest efforts.

No less than 24 Judges have already signed off on their support of this project, a project which directs parties to cooperate with respect to e-discovery issues and keep in mind the one FRCP Rule which everyone seems to overlook.

Yes, that’s Rule Number One,  the “just, speedy, and inexpensive determination of every action.”

What? You say you’re not convinced that we can “all just get along” in our e-disco sandbox? You think that slapping your adversary around with wide-net, overly broad requests is the way to REALLY protect your client? I know, you’re enamored with digging in your heels and stone walling your adversary. I get it.
OK. Take a breath, this will be a little difficult to swallow but

“Cooperation in Discovery is Consistent with Zealous Advocacy!”

I know that some of your collective heads may explode with that concept. But it’s not all that hard to wrap your document requests and meet and confers around. Try it, you’ll like it. (and you might save your client some time and money, too)

Ariana J. Tadler, the best “requesting party” attorney I’ve ever met (and worked for, IMHO) says “Mutual transparency and sharing of information enables parties to get to the very heart of the dispute and helps to avoid both exorbitant costs and unfair gamesmanship.”

The Honorable John M. Facciola, who’s decisions have him on the precedent setting edge for some time (and also the only member of the judiciary I’ve heard use the term “OOFAH!” says: “A judge does not have to make a case for cooperation; one wonders who could possibly make a case against it.”

Let’s end today’s blog with those words.

Last week I touched upon a story in the New York Times that referenced some very good work by The Journal of Empirical Legal Studies In the study some very interesting statistics were presented with respect to decisions made whether to try cases versus settling cases, and the impact of those decisions on the final determination and awards.

The “study of 2,054 cases that went to trial from 2002 to 2005, raise provocative questions about how lawyers and clients make decisions, the quality of legal advice and lawyers’ motives” New York Times’ Jonathan Glater writes “On average, getting it wrong cost plaintiffs at about $43,000; the total could be more because information on legal costs was not available in every case. For defendants, who were less often wrong about going to trial, the cost was much greater: $1.1 million.”

Law Schools do not teach law students how to calculate a case, or “handicap” it if you will, in order for them to have a better ability to determine what impact their decisions will have on the final outcome. Law firms have been using Decision Tree type software for years in doing just that yet this is not a skill one will learn in school. It’s also interesting to note that the nuts and bolts of E-Discovery Practice is still curriculum that has yet to find it’s way into the mainstream of Law Schools today.

I can’t emphasize enough how interesting this story was and what a worthy read it is. While I’m here I’d also like to take a moment to mention that the Third Annual Conference on Empirical Legal Studies is taking place on September 12th and 13th on Cornell’s campus in Ithaca, NY.  Looking at the content and speaker, it appears this will be an informative conference with take-aways for those who attend.

Item last, I’d like to thank all those who wrote complimenting me for a job well done in dissecting that “ground breaking” press release, last week. Glad you liked it.

During a meeting down in Grapevine Wednesday, I was asked a direct question by an old boss about how our product differs from that of a competitor.

Now, my old boss is admittedly (and absolutely) one of the sharpest minds in the E-discovery space and I struggled with my answer momentarily attempting to give a measured and politically correct answer when historically our relationship has always been one of true candor mixed with dead-on accuracy and always served on a fresh bed of dry sarcasm.

So this blog post is for you my friend.

One of the things I’ve wondered about is how an organization can blow smoke-up-the-skirt of an entire industry and not get called out for it?  

I’ve just finished reading a competitor’s “Ground Breaking” press release on their new search functionality which, as I dissect it, is two parts anything-but-new or unique to the e-disco market. 

As I see it, a fair amount of their “Ground Breaking” search stuff is still inferior by comparison to the functionality we’ve provided for our customers for over 8 months.

Well, let me clear this up right now, lest their smokey spin waft any further on this Holiday Weekend

Search Filters – This is really such a small subset of what we do in our Dynamic Directory, it’s sort of pathetic they’ve gotten so excited over what really amounts to a “day late, dollar short” feature. 

These guys only offer a few basic search filters. That’s it! This is ground breaking?

We offer over 25 analytical filters.

The important additional filters that only WE have, include: concept filters, key phrase filters, temporal filters, language filters, etc.

Well, clearly they have had long enough to study our product. I’m quite surprised this is as far as they have gotten in attempting to mimic our analysis capabilities.

At ILTA ‘08 Wednesday morning, I was talking to a reseller of their product and they confided clearly, “well they don’t have REAL analytics, it’s just culling”   Hehehe..Tell me something I didn’t know. 

The next feature they’re all puffed-up about is:

Multiple Query Search – Their multiple query search is a tiny example of our much more powerful and general scripting capability. Not only can we do multiple queries in seconds, but we can script any use of the UI (user interface) to perform a task. We have over 20 useful scripts built-in and supplied with the product (right out-of-the box)

Common examples of these kinds of tasks? 

Customers can (and do) create on their own, or we can create for them, additional scripts to automate any search, content organization and foldering, review, or any other task they wish to perform in an automated, programmatic fashion.

Now credit should be given where credit is due, and I’m fair in that regard. Their Search Preview is a nice UI but it’s only giving access to the type of data we’ve had available in our Analysis Server Console for some time now.

I’ll give points for the window dressing. Now you can watch us get the job done right.

Our analytical tools, including concept analysis, social network analysis, thread analysis, and our 25+ analytical categories provide unmatched up-front visibility into E-Discovery content sets.

Now, with respect to transparent and where they miss the mark: 

We provide transparent access to the entire term and stem dictionaries, not just previews of specific queries.  Our dictionary helps you to formulate better queries to begin with, not just evaluate those you’ve guessed.

Our Transparency of content facilitates putting together defensible culling plans and helps to achieve favorable outcomes in the FRCP 26(f) Meet and Confer. And I feel I’m entitled to comment on this topic as I’ve participated in Meet and Confers on behalf of Plaintiff, Defendant and the Corporate Client.

Furthermore, if negotiations fail in the Meet and Confer, our analytics and reporting can actually help you be better prepared and articulate your “good faith and reasonable efforts” in the Rule 16 hearing before the Judge. 

Keep your eye on the ball here.

Transparent search is only one small part of achieving Transparent Content.

And of course only Seagate Services MetaLINCS technology can combine the industry’s best cull-down and early case assessment product with a full service offering for hosted processing, analysis, review and production. 

If you’re just smitten with the idea of having all that power and real analysis capabilities on “an appliance” we clearly have that, as well.

When you have a marketing strategy that in effect puts free hardware into an organization, then charges a very cheap per gig rate and hope (fingers crossed) they never see the hardware back again, what are client’s to think? 

When you interview a steady stream of developers who’ve left and hear the horror stories they tell, you just have to scratch your head.

Stop me the next time you run into me and I’ll be happy to run down the whole battle card for you. It’s not even close!

Have a great weekend everybody!

And that my friend is,

On the Mark

Well, today was one of those great days when the traffic at the Seagate Services Booth was so heavy that it was an all hands on deck posture in order to accommodate all the attendees who came to our Booth (516) to learn about the combined offerings that set us apart.

With no less than 10 staffers, we answered the questions, gave the demos and easiest of all, explained the value propositions to SATISIFY THE BUZZ generated by our latest offerings today at ILTA ’08. 

With the press release of our new version 4.5 and our First Pass Processing announcement this morning, the fact that it is now available in both a managed service AND a very much requested appliance, we had our hands full.

Throw in all those looking to have their Bingo Cards punched, it proved to be a long and very rewarding day.

Of the few learning tracks I was able to attend  one I enjoyed a great deal with hosted by George Rudoy. The track brought industry notables Tom Barnett and Brian Stempel and the addition of Silas McCullough on considerations in managing your litigation support/practice support department as a business. We all know attorneys like the idea of your department making money for them. Anything to aid the bottom line, if you will. However, the issues are complicated and there are many of them. Having these gentlemen lead a very knowledgeable audience which included Scott Cohen, Stephan Dooley, a brigade of Kirkland and Ellis folks and so many more, it hit all the right notes for ILTA ‘08.  

Brian Stempel, Tom Barnett and Silas McCullough on their 3:30 pm panel Tuesday.

Other news today, Citibank settled their suit in California on the “sweeping” program which automatically swept  customers unintentional credit balances out of their accounts. An inside whistle blower was fired for reporting the program.  Not that it happens alot but I’ve overpaid my credit card on occasion and this program would have taken my overpayment balance, instead of leaving it to service future debt.

I’ll steer clear of politics but can’t help but note as a father of two little girls, the speech made by Hillary Clinton last night was truly inspiring!  Just amazing.

Heading back to ILTA ‘08 Wednesday for more of the “show that just won’t quit!”  

We hope to see you at the Seagate Services cocktail reception Wednesday evening. It’s going to be great!

On the Mark