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In my long career, I have had to explain client’s data losses to regulators, prosecutors, hostile experts and angry judges far too many times. It makes you paranoid about encryption, backups and other recovery efforts. Even the best of us can get so busy that we forget to kick off that simple process. In my case, I had gotten in the habit of full backups the night before every trip, which should have meant a week’s loss at most. That meant that I got out of my Friday back up habit. Now that we are actively conducting research projects, I occasionally get as much as a month off the road. See where this is going? I didn’t. Turns out that a month is long enough to break even long standing habits. I hope that the punk who smashed-n-grabbed my encrypted hardware gets what is coming to him. This whole exercise got me thinking about recovery and remediation when you have hardware or data loss while under hold.

This has been the year for corporations shifting to eDiscovery readiness. We have seen few big announcements from the AmLaw firms regarding large technology investments, hiring industry personalities or building out eDiscovery practice areas. Today’s articles from The AmLaw Daily and Law.com put law firm eDiscovery back on my radar. David R. Cohen, leader of K&L Gates eDiscovery practice group has moved to Reed Smith’s Pittsburgh office and taken 14 attorneys and staffers with him. The K&L Gates eDiscovery Analysis and Technology (e-DAT) Group currently lists 42 professionals, but I am guess that the 30% actually represens the core of dedicated, experienced personnel. Going back in time to the big Microsoft anti-trust cases, this practice group reflected Preston, Gates & Ellis’s (original firm as I knew them) dedication to never lose a case based on technology or eDiscovery process. The groundbreaking analytic review interface by Attenex (acquired by FTI) was founded by the firm and leveraged by the e-DAT group to review huge collections. This background should help you understand the impact of the jump to Reed Smith.

Now that I have had a couple days to digest my whirlwind of Nashville ILTA 2011 press briefings, I wanted to get you my impressions on the memorable highlights. My first impression was, “OMG everyone has an iPad!” Really. Given the amazing prevalence of the tablets in the audiences of my sessions, I was not surprised that Recommind has just released an optimized mobile interface for their Axcelerate product. Howard Sklar (Recommind) says that they wanted to get ahead of the blurring the line between personal and professional lives. The service providers seem to be feeling the pressure from corporations to mitigate rollercoaster discovery costs with fixed fee and managed service offerings. Just as legal hold features were the hot add-on at LTNY in February, flexible work flows seemed to be the hot feature as providers are gearing up for the end of year release cycle.

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?

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.”

Migrated from eDJGroupInc.com. Author: Mikki Tomlinson. Published: 2011-11-29 16:37:22  I was happy to see Greg Buckles’ post Has eDiscovery Disenfranchised Our Paralegals.  The answer is, wholeheartedly, YES!  So, why am I happy?  I am happy because someone finally brought the [...]

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?

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.