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A recent client discussion reminded me of my earliest attempts at rule based categorization and the hard lessons of that experiment. Back in 2000, my general counsel (GC) asked if it was possible to find and segregate all potentially privileged emails out of the hundreds of millions that we had to produce to many different parties. I took a couple hundred thousand email and spent a week crafting search criteria/rules and doing iterative sampling checks. I worked with our top paralegals and our long standing firms to incorporate everyone’s input. I segregated approximately 18% of that collection as potentially privileged and put the remainder in the review queue without telling my contract attorneys that it had been cleansed. I felt pretty good about the exercise and knew that my rules were overly inclusive, but the point was to determine the risk of privilege waiver if we gave all the regulators remote access to the ‘cleansed’ master collection while my review teams worked on the 15-18% at issue. In the middle of the review, my GC ‘volunteered’ to man a review station for a couple hours to see for himself how it worked. After all, it was his question that kicked off this experiment. What do you think that he found?

Migrated from eDJGroupInc.com. Author: Mikki Tomlinson. Published: 2011-11-29 11:37:22Format, images and links may no longer function correctly. I was happy to see Greg Buckles’ post Has eDiscovery Disenfranchised Our Paralegals.  The answer is, wholeheartedly, YES!  So, why am I happy?  I [...]

I had a great session with one of the top eDiscovery law firms this week. We spend time on their pain points and discussing the ownership ESI collections as they progress through the firm. One of the things that hit me was the realization that as eDiscovery has consumed more and more of the actual discovery lifecycle, we may be unintentionally taking the traditional gatekeepers out of the loop. When I reflect on the print/copy days of discovery, paralegals always owned the boxes. When a partner went looking for a critical document, the paralegal knew exactly where it hid and could reconstruct how it got into evidence. Paralegals still coordinate with the corporate clients on collections and overall management of deadlines, but it feels like initial collections now vanish into litsupport or service provider shops to emerge transformed into review sets. The problem is that this metamorphosis is generally a black box process (yes, I like the phrase because it evokes the abracadabra moment).

Cloud computing is a hot topic. The cloud’s ability to provide solutions that are lower cost and simpler to manage just cannot be ignored. Our recent SaaS survey showed that approximately 75% of respondents are leaning toward SaaS or hybrid on-premise/SaaS solutions for eDiscovery. Craig Ball recently put out a very interesting article about how running eDiscovery technology in the cloud will be more efficient. Craig goes so far as to say, “cloud computing makes collection unnecessary.”

One of the greatest challenges of implementing and maintaining legal hold and discovery response processes in a corporate environment is balancing those requirements with the needs and goals of the IT department. While we typically see the dichotomy between Legal and IT, there are other key stakeholders that cannot be left out of the mix: Compliance, Records Management and, of course, the Business Client.In order to strike the balance (or at least start moving in that direction) between competing interests, each of these stakeholders must be able to understand the goals, mission, requirements, and needs of the others. To point out the obvious – this requires communication. The problem here is that Legal, Records, Compliance, and IT do not speak the same language. Because every organization is unique, culture is another critical component that cannot be ignored. While the cultural considerations and communication difficulties between the stakeholders may not necessarily be contentious, they can be frustrating and challenging. Luckily, there are ways to work through the cultural and language barriers, such as using drawings/visuals, explaining things in simple terms, and the use of translators.

One key element for transforming your eDiscovery from an ad hoc reactive fire drill into a mature, proactive business process is the development and implementation of formal Quality Assurance(QA) and Quality Control(QC). I have always viewed QA as tackling ongoing process improvement such as regular cross case comparisons, while QC tends to be checking on did the process perform properly. Basically, how can we make the process better versus did everything work right? When interviewing corporate client eDiscovery teams, everyone is conscious of the need for QA/QC, but the vast majority seem to feel that it is impractical or unrealistic given their tight deadlines, lack of resources and typical fire-fighter mentality. Some law firm clients have swung to the opposite extreme, with elaborate workflow, check lists, physical chain of custody forms and more. Their QC has grown out of reasonable proportion and their productivity suffers because their overall QA has been neglected. So how do we achieve a reasonable quality process without bringing the legal process to a halt?

The vast majority of our corporate clients are public corporations with inside counsel. Generally we work directly under inside counsel’s supervision to protect our work product. A fast assessment engagement for a smaller corporation without any inside counsel got me thinking about eDiscovery risk vs. cost decisions in a different light. Civil litigation is a ‘sooner or later’ fact of life for any public corporation with enough revenue to tempt a plaintiff. As eDiscovery becomes a defacto business process, what hat is the typical inside counsel wearing when they make decisions on matter scope, filters, data sources and more? We tend to think of counsel as the final arbitrators of eDiscovery decisions. But frequently, inside counsel is wearing the business hat when applying the ‘reasonable effort’ standard to situations. In a company without inside counsel, who does that final decision fall to?

Migrated from eDJGroupInc.com. Author: Mikki Tomlinson. Published: 2012-02-02 13:04:13Format, images and links may no longer function correctly. The Honorable Andrew J. Peck, United States Magistrate Judge for the Southern District of New York, graciously allowed me to interview him after the [...]

In case you could not make THE legal technology conference, LTNY 2012, I thought that I would bring the show to life for you. The eDJ Group’s day kicked off far too early with our eDJ Peer Group breakfast, but we had good attendance and great participation in the open discussion. The team then dove into analyst/press briefings on many (but not all) of the new product releases, which we will boil down for you in the days following the show. I decided to try to abandon my laptop and Moleskine notebook this time. I tried out every iPad note taking app I could pay for that promised to accurately recognize my sanscrit scrawl and render it into searchable text. Utter failure. For those of you from the early EDD days, remember the first generation of OCR programs and wince. That’s about how bad they are. To make it worse, I became obsessed with ditching the ever-present backpack or LTNY trash bag. So I actually shopped for an iPad ‘holster’ and bought an STM sleeve that promised to provide easy, safe storage without the ever present shoulder strap. However, my fashion faux-paux was quickly spotted by my kind team-mates who reminded me that I was wearing a geek man-purse.

This was my first LegalTech where I could put on my analyst hat without needing to manage corporate clients or speaking panels. It brought home to me just how hard it was to switch mindsets and reminded me of the 2010 PBS special, “Digital Nation” that shattered my personal myth of multitasking. It is safe to say that I brought more to my hectic briefing schedule this year and took a lot more out of them as well. The other new element was taking digital notes on the iPad. Barry liked the Penultimate app, while I finally settled on PhatPad with the hope that I could leverage it’s handwriting recognition, photo and audio recording features.