Monthly Archives: January 2024

Going all the way back to Arthur Andersen/Enron, the cover-up is always worse than the original crime. Serious déjà vu as I read, How VW's In-House Lawyers Screwed Up a Litigation Hold. In VW’s case, counsel ‘leaked’ word of the impending legal hold to key custodians who scrambled to delete thousands of documents and even instructed an emissions related subcontractor to purge documents. All of this came to light when regulators started their inevitable interviews with key employees. I don’t know if you have ever been in the mythical hot seat as a witness or potential suspect of a criminal investigation. During my admittedly short years stint as a CSI, I enjoyed watching investigators and defense attorney’s crank up the heat, even when it was my turn. That heat hit BROIL during the Enron investigations and subsequent litigation. Watching those bad actors fold taught me that company loyalty only goes so far. I was lucky that my bosses at El Paso Corp took the high road thru those dark times. As the newly minted discovery manager, I had to find and turn over all the bad apples asap and sign off on the completeness of document demands. So once again we see corporate malfeasance transformed to criminal indictments when the guilty parties try to hide the evidence. So how do we cut off the instinctive cover-up reflex?

Before I can assess the potential improvement or Return On Investement (ROI) for process or procedure changes, we need the current average cost of discovery broken out by stages, providers and data sources. Someday a client will know what they are spending and getting before they ask for help. It has not happened yet. So we identify a couple recent matters as good exemplars covering the primary matter types and I get to match 6-12 months of invoices against tracking spreadsheets and Relativity reports to determine metrics like review rates, total cost per document, relevance richness and more. One thing that drives me crazy during my invoice analysis is differentiating time associated with document review into key buckets, especially for paper docs that require bibliographic and unitization coding. The ABA created the Uniform Task Based Management System (UTBMS) codes in the 1990’s and the Ledes Oversight Committee has continued to evolve eBilling codes for Tasks, Activities and Expenses associated with most legal work. I participated in drafting the 2011 LOC eDiscovery Codes as well as the revised 2013 Revised Activity and Expense Codes. All of this effort was meant to give timekeepers and clients consistent ways to measure and track the costs in modern eDiscovery. I just wish most of my clients and their firms actually knew about this and used them. Instead, I see counsel throwing everything under favorite basic UTBMS Litigation codes (generally L110-L140 & L320). To make matters worse, most service providers have not even considered coding their time based services performed under direction of counsel. Counsel considers service providers an expense, but many times they have associates training new TAR systems, performing QC or directly coding subsets of the collection based on search terms. So how do I untangle the invoices?

Back in the Big Apple for my umpteenth Legal Tech. I am eager to see what is hot and new with all the product releases for this year. Legal Tech NY is the traditional release date for new products, major versions and Go To Market (GTM) campaigns. This year the question for technology providers will be how competitors can differentiate themselves from the kCura juggernaut. I will be looking for service providers with Alternative Fee Arrangements (AFA) that depart from the $/GB addiction that has dominated our eDiscovery budgets. What else am I looking for? I want to see if anyone has come up with new OCR tricks for the old paper collections from my energy and mining clients. It has been almost a year since kCura acquired Content Analyst, so I expect announcements from Relativity competitors like Ipro shedding CAAT in favor of a clustering engine like Hot Neuron or Brainspace. The eDiscovery market is rapidly evolving and LTNY is one of the best places to spot the trends and meet with peers. Although my briefing slots have been booked up for several weeks, I can always find time to do a good karma introduction. So email me if you are at the show and I hope that our paths cross. I might have to run for my next briefing, but I always block out time to walk the show floor and talk with folks. I will try to publish raw briefing notes and impressions. Some of my briefings:

I decided to just get you my raw notes and impressions from the exhibit hall floor, formal briefings and shop talk.First Impressions:• Orange continues to be the new black. Seems that everyone wants to imitate kCura• Automation is everywhere. Frequent flyer marketing terms include Simple, Efficient, Automated, Integrated.• What’s with all the empty booths? Kept seeing booths without reps.• Good size crowd of attendees, but serious reduction in the number of booths. The entire 3rd floor is empty. • Briefing sessions alternated between the Sheraton and the London. Problem is that several elevators were out at the Sheraton…• How do I know it is Legal Tech time? It’s snowing!• Don’t do videos or even demos beyond screen shots at conference. Save them for post conference online meetings.

Note to self. Politely decline future destination wedding invitations on either side of Legal Tech. That should explain the delay in getting out my remaining briefing/meeting notes. I usually clear the week after LTNY to decompress, digest all the information and follow up on the stack of biz cards from folks who I ran into at the show. This year I am juggling three hot engagements, while fighting for writing time. The briefings and social events on days Two and Three gave me a lot to think about, more than I want to publish without some retrospection. Below are my ‘filtered’ briefing notes for an early taste.

If you were an early adopter of the on-premise or O365 eDiscovery Center SharePoint site, it is time to migrate to the newer Security and Compliance Center. This article gives the history of in-place legal hold searches and Microsoft’s reasoning for pushing customers to the new platform. Given how many of my clients are still struggling with upgrades to Exchange 2013 (much less 2016), Microsoft has to play the tough parent to reduce global support overhead. For eDiscovery Center users, you need a plan to age off inactive matters/holds, migrate active matters in motion and start all new matters in the Compliance Center. Time to put in the late hours or get a manage service partner to do the grunt work.

My friend Doug Austin at CloudNine solicited quotes from industry pundits (yours truly included) that generated some fun perspectives on the show. So do a fast read here. http://www.jdsupra.com/legalnews/thoughts-about-legaltech-new-york-2017-50268/

Keeping this non-political, the fight over Trump’s travel ban has kicked over a privacy rock, customs demanding social media credentials for inbound travelers. If you work in eDiscovery, you probably have confidential client information on your phone and laptop. You have an obligation to protect that ESI. Time to update or create an overseas travel policy to identify and protect critical or sensitive communications, especially if you are traveling to or from Muslim countries. This Wired article has some basic guidelines or approaches, but bottom line is to move key communications to the cloud prior to border crossings. I still think that the risk of exposure for any business traveler who does not fit CBP’s racial/religious profile is minimal. But you can only assess risk and potential consequences if you are aware of Custom’s rights to seize/access your devices and educate your employees. Remember that most employees take their devices on vacation. http://www.theverge.com/2017/2/12/14583124/nasa-sidd-bikkannavar-detained-cbp-phone-search-trump-travel-ban

For those of you who have followed eDJ Group over the last 9 years, you will understand how bitter sweet this announcement is. My last business partner and analyst-consultant has accepted a role with Exterro. I know that Mikki’s friends and fans will join me in wishing her the best of luck at Exterro, a better fit for her expertise in matter management and legal holds. Being an independent consultant in the eDiscovery market demands constant research and outreach. I have watched too many of my peers hang out their shingle as solo practitioners, only to fold shop when cases unexpectedly settle, home builds go south or corporate client’s abandon projects. I and my clients will miss Mikki even as we wish her the best in her new role.

This year I started snapping pics from the exhibit floor in reaction to the overwhelming use of kCura orange in booths (yes, I know that DiscoverReady had it first). Once started, it is hard to stop. So here are some of my show pictures with commentary.Orange is the new Black! kCura’s vivid shade dominated the exhibit floor booths except where contrasted with blue. I guess that the marketing palette is down to two shades now, ENERGY ORANGE and TRUSTED BLUE.[pics in full post]