Essays

While reviewing the hundreds of new blogs and stories found by the eDJ search engine over the weekend, I realized that we had reached 5,000 stories in just 9 months. That translates to almost 600 unique news or opinion pieces per month after we screen out the thousands of reposts and odd environmental stories that happen to mention “Chain of Custody”. Looking back, it appears that the number of blogs and stories have been steadily growing since my May post on the new user customized RSS feeds and home page display. We were clearing about 20 stories per day back then and I know that we have gotten a lot tougher in the screening process. The eDiscovery market and the legal system that it supports has definitely been warming the recession chill of 2009.

Our earlier post on predictive coding potentially being the future of document review included a poll on whether or not predictive coding is defensible. The results so far are somewhat surprising in that the majority of folks believe predictive coding is not defensible. I suppose I shouldn’t be surprised; the legal industry is slow to change (and for good reason – it makes sense to proceed with caution when going into unchartered territory).

On December 1, 2010 new amendments to Rule 26 of the Federal Rules of Civil Procedure governing expert witnesses go into effect. Ever since 1993, testifying experts in Federal cases have had to carefully manage all drafts and written communications with counsel in the expectation of having to produce everything to the opposing counsel. This directly contradicts that usual assumption of attorney work product privilege protections and has led to inadvertent waiver and dramatically higher fees. It is just more efficient to send early comments on depositions, questions for fact witnesses and such via email than it is to have to leave a message and then schedule a conference call. Moreover, I would generally not bill for a quick email question while I have to recoup the time for these calls. Most technology savvy experts have had to adapt work practices to minimize the creation of discoverable documents. They will overwrite the same report instead of creating draft versions, read paragraphs over the phone instead of sending early opinions, use Webex to preview demonstratives and generally leverage collaborative technologies that do not actually generate email.

Analysts are told they are crazy all the time (and in some cases, it’s probably true). Years ago, I suggested that the business models of law firms would have to change because of the realities of eDiscovery. Most people I knew told me I was crazy. I even knew some general counsel that told me that if they were still paying hourly fees to their law firms in five years (this was circa 2005), that they would have failed in their jobs. Meanwhile, the law firm folks I talked to said it didn’t matter what corporations did – good law firms can command the hourly rates that they want. The recent Fulbright and Jaworski Litigation Trends Survey results pointed to an increase in fixed fee engagements, so it looks like the business model is, in fact, changing.

My September post looked at the provider sponsorship of Legal Tech New York from 2008-2011 as an indicator of the how our industry has reacted to the economic recession. At the time, I noticed quite a few players who had either quietly disappeared or been acquired in the last couple years. Merger and acquisition consolidation is a sign that eDiscovery is maturing and integrating into the larger corporate technology market. I thought that it would be interesting to make a quick roll call of software or service providers that have either disappeared or been acquired since the recession put the squeeze on the market.

The clear trend is that corporations are taking control of eDiscovery and bringing functions on the left side of the EDRM – identification, collection, preservation, and elements of processing, analysis, and review – in house. The goal is a more proactive approach to an inherently reactive process. But, the evolution is still a slow one. Inevitably, most corporations still take a matter-by-matter approach to eDiscovery.

Consultants and analysts fly a lot. It is part of the job, but not a part that I particularly enjoy in this age of overbooked flights and mandatory security theater. I am lucky enough to have the flexibility to push several December engagements into January so that I do not have to fly while the new security procedures are debated. I like to think of it as waiting for the first service pack instead of upgrading to a new full release from Microsoft. So how does this relate to eDiscovery? Think of the TSA screening process as a search and review challenge. You have millions of unrelated travelers (substitute email here) with a very few bad actors that have to be identified and acted on. This is remarkably similar to what a corporation with an immature eDiscovery process goes through with any major case. The TSA is in the same position as the corporation’s law firm. The corporation dumps millions of email on the firm and then makes the senior partner (politician) responsible for any privileged or trade secret email that accidentally leak through the review.

Centralized control of information is at the heart of information governance. In many ways, though, centralization runs counter to the realities of the working world where information must be distributed globally across a variety of devices and applications. The amount of information we create is overwhelming and the velocity with which that information moves increases daily. To think that an organization can find one system in which to manage all its information is preposterous.

In the normal course of business, I am excited to see EDRM project content incorporated into caselaw, articles, research and by other experts in eDiscovery, especially when it is a piece that I contributed to. In a recent Law.com piece titled “A Strategy to Sample All the ESI You Need” attorney Nick Brestoff leveraged Section 9.5 of the EDRM Search Guide to propose forcing the opposition to produce samples of ‘irrelevant or nonresponsive’ ESI. His proposal is a stark reminder of the adversarial nature of our business. As one of the primary contributors on the validation sections of the Search Guide, I can assure you that I envisioned the producing party using sampling and the other methods to maximize precision, accuracy and completeness of discovery searches. I agree with Mr. Brestoff’s demand that parties disclose the scope, confidence levels and criteria used to sample. However, he basically challenges the producing parties ability or right to determine relevance and presents ‘three easy steps’ to demand all ESI not produced. That seems to effectively negate relevance review completely and excludes only duplicates, system files and privileged ESI.

Clients often bring up the issue of creating a business case for eDiscovery because it’s such a difficult activity. Despite the fact that solutions on the market can help save a lot of money, it’s hard to justify spending hundreds of thousands of dollars upfront to address eDiscovery costs. It shouldn’t be as hard as it is, but such is the grim reality in the complex world of corporate eDiscovery. I believe that much of the difficulty comes from the lack of “ownership” for eDiscovery.