Not good. Not good at all.

When firms see more and more clients moving to hosting their own data, and only allowing outside counsel to access it on a limited basis, this will be one of the reasons. There will be a litany of others, don’t get me wrong, probably topped by their wish to control costs along with their own data, but the insecurity of data once it leaves an organization bound for the outside law firm, will be a huge concern.

The sad reality is, even once this firm puts into place a security plan, including encrypting all data that is going off site for any reason, there will still be huge security holes. Don’t get me wrong, a stricter security policy is a good thing, but it won’t prevent attorneys from printing private, personal information, and carrying it around with them, or emailing it insecurely, or leaving it laying around, etc. Once data leaves the client and goes to a firm, you’re trusting everyone at the firm to protect it, and some clients aren’t willing to go that far, especially if they have the resources to control exactly what data the attorneys have access to, what they can do with it, and when they will no longer have access to it, which is also a huge area of ongoing concern.

Simply put, a firm should have strong documentation and security procedures in place and enforced, but they can never compete with the idea of never sending it to them in the first place.

I’ve seen some news, and cheering, recently suggesting that per-gig pricing as part of the ediscovery process is dead.

If you read that post from AccessData, and follow the links, I think you’ll see a pretty good case for why a per-gig pricing model is problematic, but the one thing you won’t see is what we should be charging instead.

Speaking from my own viewpoint of an internal Lit Support provider to a law firm, I can see the real problems with both the billable hour practice, and the per-gig, or disbursement, practice.

For billable hour approaches, you really don’t recoup the proper cost of handling large amounts of data. Because much of the work is done by the machine, I can only charge the time it takes me to setup the project, QC the end results, etc. That time doesn’t vary much whether we’re handling a 1GB collection or a 25GB collection, but the time that machines are in use, and unavailable, sure does! (I won’t even get into the difficulty in getting clients to pay for billable hours for non-attorneys, or getting attorneys to leave that “time” on the bill, which is quite a significant issue, worthy of it’s own post really)

So, we switch to a model that accounts for the fact that large collections take more time, and work, to deal with. But, one that also comes with it’s own problems. Strict disbursement pricing does not provide an incentive to do things efficiently the way that billable hours does. Simply put, in a billable hour scenario, you, as the client, have an incentive to collect completely and efficiently. Doing it once limits the amount of time the Lit Support professional can bill. With a disbursement model, you get charged the per-gig price, sometimes regardless of whether that 10GB collection comes in all at once, or 25MB at a time. Obviously, having to deal with small amounts of data, over and over again, is much more work for the Lit Support folks, but there’s no price incentive that would encourage clients and case teams to not behave like this.

Neither one really provides value for the client, and neither one really provides an incentive to be complete, and yet efficient. So, what does? Who is going to come up with a truly innovative way to bill for handling of ediscovery data, that accounts for the increasing amounts of data, and also stays within the ideas of proportionality?

It’s easy to say that something is “dead”, it’s much harder to come up with what will replace it. The billable hour is a good example. It’s been “dead” for years, yet it still hanging around, only partially being replaced. How long will per-gig pricing be “dead” before we come up with a replacement?

Just want to add a couple of further thoughts about ILTA that didn’t occur during one of the sessions.

One of the more interesting things about ILTA is that, with all the legal technology vendors in one place, it’s a great place to compare them, and get a feel for where the market is going overall. Obviously the big question on everyone’s mind was where was HP going with the very high price they paid for Autonomy. I heard a few rumors, and had a few thoughts of my own, but maybe the one that made the most sense to me was someone who pointed out that Autonomy has always had this great IDOL search engine, but never really figured out how to build it in to a product, so maybe HP was going to build it in to a server appliance?

In order to explain why I think this is so, let me talk a bit about some other vendors. First off, the move among ediscovery vendors has been, and continues to be towards integrated systems, and online review. Even the old stand-bys of Concordance and Summation are moving in that direction. Lexis is continuing to develop the desktop version of Concordance, but is also offering Evolution now, a web-based quasi-native review tool. Meanwhile, AccessData is really scrapping the entire back end of Summation, iBlaze and Enterprise both, in order to build it back onto the same back-end that is used with their forensics tool, FTK. In fact, they have positioned themselves to be not just a product for law firms, but a product for law departments. The AD Ediscovery product can be used to collect, which rolls right into their ECA tool, which rolls right into their review/production platform, and since it shares the same database structure, you can jump back and forth between the products.

In their presentation, they talked about being able to de-dupe globally, or only load the last email of a thread into the review tool, and when it came time to produce, you could go back into the ECA tool and grab those other copies, or earlier individual messages as needed. So, with one tool, you can collect your own data, search and cull it, and either send what’s left off to a hostedreview, or a firm, or simply add on the Summation piece, and give your outside counsel access through the web.

Now, think about what we talked about earlier in the week with the corporate law departments. They want to control the process, not give control to law firms. They want to get predictability in costs, and what better way to get that than to make the investment in infrastructure yourself, and use it as much as you need to use it, for the fixed price of that investment? This is where corporations are going, and why vendors are seeing so much growth outside of law firms. AccessData sees that this is where the market is headed, and is responding by making their tools more usable for law departments.

Back to the HP-Autonomy appliance rumor, if the market for legal technology is headed toward direct purchase by clients, and away from law firms, I can’t help but think that HP is not trying to build a better legal platform for lawyers, but a better legal platform for companies to use inside their own organizations. Imagine a company with litigation readiness needs. Now imagine that they could buy an appliance that would give them the ability to search across their organization for relevant material, archive it, and then make it available using Autonomy’s Introspect platform for attorney review, and all you have to do is plug it in. HP will build it and configure it for you.

Large organizations, and those frequently involved in litigation, are moving in this direction. Demanding their outside lawyers use the processes they decide on, the tools they decide on, and that they learn how to best use these tools. It’s no longer the law firms who are driving this train.

But, you say, there are always the small businesses that will continue to let us do business as usual. Maybe for now, as the investment costs for some of these tools are higher than their litigation risk is, but this won’t be true once Google gets completely into the ediscovery game. (Yes, there was someone from Google at ILTA, someone with their edicsovery area in fact.). Right now, if your business uses Google Apps, it’s pretty close to ready for ediscovery. Google can easily search across Gmail, Google Docs and all the other tools that come with an Apps account. Heck, even if you’re not using Gmail, they have Postini setup in front of your email server and can be configured as an email archive. Once they pair that up with a collaboration tool that would let you grab a copy of all those search hits and make it available online to your attorney, you have yourself a complete ediscovery solution, all part of your $50 per user, per year, Google Apps account. I don’t believe they are that far away from this. Go back and read that paragraph again, and think about all of the various tools they already own, or have investments in. It’s really more a matter of putting it all together as a service than it is developing a whole new tool.

Where does that leave law firms, and in-house Lit Support at law firms? Good question. I don’t think the need for Lit Support will ever completely go away, but the work is changing. It’s going to involve a lot more working with clients, and supporting a variety of tools being used across various clients. Some firms will still offer some processing and review services, but it’s not going to be a big revenue generator for firms. We simply can’t compete with companies where this is their area of expertise. It’s not the core function of a law firm. The revenue is going to come from helping clients develop their own processes and tools, as more of an expert, as opposed to a document reviewer. That’s also going to require lawyers to learn a whole lot more about the process and the technology than they currently know. Those that do, will be successful in the new world of ediscovery process being driven by clients. Those that don’t, should think about working elsewhere.

Thursdays notes. Note that the late night on Weds led to me missing a good chunk of the keynote on Thursday, but I will say that the idea of using humor in your business communication is an excellent on. It fits right in with what I’ve been saying about effective communication and building relationships as a way to increase the effectiveness of communication. Human beings have a sense of humor, sharing that is part of being human, and that only helps communication, when we can be human towards each other.

That being said, let’s move on to the sessions I did manage to see all of!

Emerging Ediscovery Technologies: Predictive Coding and Remote Collection

• The biggest benefit of remote collection, can also be the biggest challenge. Obviously, not having to travel to where the PC is located is a huge time-saver. However, when something goes wrong, you’re not there to troubleshoot. Be prepared for this.
• Legal Departments and firms should not punt decisions about collection to IT. They may understand the technology better, but they aren’t going to be able to make legal decisions that could help limit the scope of what you’re collecting. Lawyers have to start out involved, and stay that way through the process. (Lawyer as Project Manager? Get used to it!)
• Dominic Jaar predicts that we will see a predictive coding technology placed in front of collection soon. Use of it here would eliminate over-collection at the very beginning of a project. (Do the two go hand-in-hand? Clearly limiting what you collect is the best way to reduce costs, so I expect any and all technology being used currently during the review process to show up in the collection phase soon, why not?)
• Howard Sklar compared linear reviews to wooden tennis rackets. Once upon a time, if you went to Wimbledon, you would see everyone using a wooden racket, because that was the only kind available. As technology improved, and replaced wooden rackets, no one used them any longer. It put you at a competitive disadvantage to continue doing what you’d always done.
• Human review should not be considered the gold standard. Study after study shows the error rate in human review is much higher than we seem to think it is. Predictive coding doesn’t completely replace it, but it does improve on it.

I think both of these technologies are here to stay. Remote collection seems to me to be a no-brainer to use when needed. Predictive coding has been a bit more controversial (Recommind’s patent discussion notwithstanding), but firms are going to have to get used to the idea. We simply can’t continue to think that a linear review is going to be possible with the amounts of data we’re seeing, nor that clients will pay for the cost of it. The days of making bank on large document review projects are coming very quickly to an end, as we saw from Wednesday’s Law Department session. Clients will be expecting their outside counsel to use these sorts of technologies, whether it’s in their own environment or a third party’s.

Legal vs. IT: Aligning Litigation and Practice Support

In all honesty, after already hitting the how to talk tech to lawyers session earlier in the week, and having heard about the difficulties aligning Litigation Support with IT, I wasn’t really surprised by anything in this session. That being said, here are a few key points:

• Law firms need to remember that corporate systems are not built for ediscovery, they are built to support the business. Ediscovery is a business interruption, one that lawyers need to plan much, much better for. This reminded me of the lawyer who wanted me to “just run over” to a client’s office midday, and grab all the email from their server, like it was no big deal and they could continue to operate their business while I did this. Seriously, outside counsel does a poor job of accounting for the time it will take for ediscovery processes to get done in a corporate environment, which didn’t surprise me, typically lawyers don’t plan for the time it takes to copy, process and load data for review either. The lack of planning for this actually stresses the timeline on both ends.
• Our job is to give lawyers what they want, when they don’t understand what they want, we have a problem. One that can only be corrected with better communication, going both ways, between technical folks, and legal folks.
• The best way to bridge that gap is for the legal side of the firm/corporation, and the technical side are seen as equals. I think this is easier to do in a law department than a law firm. Audience member’s claims to the contrary, I don’t personally know of any firm where the attorneys and IT/Lit Support staff are considered equal, and go out for drinks together. It would absolutely improve the workflow if it happened though, as humans we communicate better with people we consider friendly than those we do not. Lawyers who are not friendly towards IT staff, tend not to get great service from them. Julie Brown, from Vorys shared a story of one particular IT person, who was very quiet, and introverted, and was hard to get to know, but who their Litigation Support folks needed assistance from. Eventually, they found out he liked chocolate cake, so they started baking cakes and bringing him some, and now they have a great relationship. Yes, it’s true, us geeky guys like sweets, and alcohol. It works 99% of the time.

Clearly, the theme for this session, once again, was on building relationships, both ways, with the people you work with. Ediscovery is a complex process, but it’s not rocket science either. Doing simple things like getting everyone on the same page, getting them communicating, and getting them to trust one another, goes a long way toward simplifying the process. It’s much easier to adjust to a problem when you’re working with people you know and trust, than it is when a problem goes without being communicated, and work continues down the wrong path and has to be redone later. Again, as humans, we are more likely to flag a problem to people we know and trust to have the expertise and professionalism to deal with it properly, than we are to people we are uncomfortable with, and nothing will discourage that sort of communication more than blaming the messenger.

In fact, in the afternoon sessions, I want to continue this theme. I attended the Information Management BarCamp sessions, where we broke into groups and discussed different topics around this main subject. Since I was, literally asked to take notes for the official Barcamp Wiki as the first discussion was taking place, I don’t really have well-kept notes of my own, however you can see the since cleaned up notes for all the session, as well as the Law2020 bar camp sessions from earlier in the day over there.

First off, this was new, experimental, format for ILTA and one I have really enjoyed in other arenas. I think it’s a great idea for getting good ideas out of the entire crowd as opposed to just the speakers, however next year, they might consider not having one Thursday afternoon. Many people have either left town, or are simple too worn out from the week, and I would guess, Thursday afternoon sessions are among the lightest attended of the entire week. Given that this format thrives on crowdsourcing, you might do well to try and attract a crowd. As it was, we had a small crowd, but the discussions were lively, and interesting.

In my first break out group, we discussed Finding the Needle in the Infinite Haystack. We came to two conclusions, one of which was to further discuss the idea of what motivates users to create, and share content? A great analogy was updating your resume. The vast majority of us don’t do it until we need to. We’d be better off if we did, but there’s no pressing need when you aren’t looking for a job. (Full confession, I have not updated mine since starting at Ogletree, despite endless reminders and suggestions about how you should always have an updated resume, even if not for job searching, you just never know when you’ll need to give it to someone looking for a speaker, or when things might just change for you.)

But, back to the point, how do we create an immediate incentive for better documentation? When knowledge management truly matters to our day-to-day work, it will get done, but how can we prove it matters?

The second conclusion we came to was, that the best way to find a needle in a haystack, within the limits of what we have available to us now, is to eliminate as much hay as possible. Narrow down the area of hay in which you need to search. Obviously, this conclusion is applicable to the ediscovery realm, no? If you are focused on finding the documents that will win your case, do everything you can to eliminate searching in the places they are less likely to be found.

The second discussion I sat in on was Lack of Information Transparency is Crippling your Firm, What can you do about it? If you’ve been reading a long all week, you know that I’ve become a bit jaded about law firms, so this seemed an appropriately jaded subject. We discussed various methods for unearthing expertise and information from within. Simple things like listing years of service on the employee directory, which would tell you who’s been around long enough to know where the bodies are buried, so to speak, to creating internal social network platforms, where employees and attorneys could share their interests, their knowledge of different areas, and build relationships across departmental silos. It could also be used to find out who knows who, so when you needed assistance with a specific area, you could see who of your friends has friends in Accounting, for instance. We also talked about some of the reasons why people might not share their information and this is where that lack of relationships really stuck out to me. Bottom line, people don’t share information with people they don’t trust, (To either not usurp their expertise, or be overly critical of their work) and they don’t trust people they don’t know. If you have a firm full of gypsys, people who are constantly moving from firm to firm, you cannot successfully create a transparent culture.  I wonder if the same holds true for a firm that is spread out across a number of offices? Are these the sorts of things where small firms are going to be more effective, and kick our asses when it comes to getting good information, quickly, to their clients?

Anyway, it was a good discussion, and a great way to end 4 full days of sessions that left me with lots to think about, obviously! I’ve got a couple of more posts to get to this weekend before I wrap up my coverage of ILTA, but I’m glad I went. It has given me the nudge I’ve been needing to get back to blogging and tweeting regularly, and I’m enjoying the lively discussions on social media again. Hopefully I’ll be able to incorporate that into my new life and work habits better than I have been.

I try to keep my feelings, and many opinions, about sports off the blog. But sometimes, sports provides an excellent example of something that applies in the professional realm.

One recent example is Jim Tressel resigning from Ohio State. Obviously, I lived in Columbus for some 25 years, I’ve followed OSU football a little, and I’ve followed this whole story pretty intently. Many people are feeling very sorry for Coach Tressel, but I can’t really count myself as one of them. As I tried to explain my reasoning for this, I realized that what I do for a living has a pretty big influence here.

Anyone who has ever worked in a law firm, even if you’re not practicing law, or handling ESI, has been reminded again and again that there are certain ethics rules that we must abide by. Maybe other people, in other industries, can talk about their clients, or what cases they are working on, but we can’t. We have to keep client confidentiality, we have to abide by the e-discovery rules, we can’t just hide documents, we have to cooperate with the court, etc. These are the rules of the industry. Breaking these rules simply isn’t acceptable. If you don’t like the rules, or don’t feel like you can abide by them, you need to find something else to do.

The NCAA has rules too, and we can argue until the cows come home about whether they are good rules, or effective, but it doesn’t matter. For the record I think many, many NCAA rules are stupid, and exist to protect the financial interests of the people in charge. Alas, my feelings on the NCAA are irrelevant.

If you are going to exist in that environment, as a player, a coach or a college administrator, you must abide by those rules. Breaking them isn’t acceptable.

If I, in the course of doing my job, decided to simply hide a bunch of data collected from a client, and then lie about it later, I would no longer have my job. It’s also highly likely I would never have a job in this industry again, no matter what sort of good intentions I had. It simply isn’t acceptable behavior. Hiding violations on behalf of his players, and lying about them is unacceptable, no matter what the rationale is.

Coach Tressel made a lot of money as part of big time college football. If he didn’t like the rules, he could have very easily done something else for a living, or simply retired with the money he’s already made if he felt that strongly about what the right thing to do was. Trying to break the rules of his industry, while continuing to take the pay checks, isn’t something that pushes me to feel sorry for him.

I hate to do it, because I have the utmost respect for him, but my experience tells me that Craig’s latest article is going to create problems for Lit Support folks everywhere. Not because he’s wrong in any of it, but because far, far too many attorneys are going to see the headline, and the first paragraph, and walk down to their Lit Support department and demand that we do forensic collections.

They’re going to miss Craig’s later points about how to do single drive images correctly (Write blockers, secure work areas, locking evidence cabinets, pshaw! We don’t need that, I just need a copy of the drive.), and they are going to miss his suggestion that you know your limitations. It’s the rare attorney who understands the difference between a standard desktop hard drive, and an SSD drive, or flash memory, and why you need different equipment (connectors) to image them, or why smartphone forensics are very different, or a web or email server is a very different ball game.

The reality is that once you open up a “single drive imaging” shop in a law firm, a good portion of the lawyers are going to believe, and promote to their clients, that the firm does in-house forensics! The person tasked with capturing these images will spend just as much time explaining, arguing, and getting flack from attorneys who don’t understand the limits than they do actually imaging drives for a lower cost. I’ve been that person. It’s not worth the hassle.

To be fair, Craig covers that in the article, and attorneys with a good technical understanding will be able to grasp the conditions under which single drive imaging is really a simple task. Unfortunately, I don’t know how many firms really meet those conditions. I think quite a few don’t even really have a competent person to do the imaging. Note that I’m not saying they don’t have competent IT people, it’s just that your typical IT person is not schooled in the proper handling of evidence, and may or may not actually know how to use whatever tools are available to them. I’ve seen plenty of examples of perfectly good tech support or networking folks who do a horrible job of dealing with eDiscovery. (I’ve been that person too, in a former career.)

At the end of the day, maybe I don’t really disagree with Craig as much as I see the legal world from a different perspective. In a perfect world, there is really no reason why firms can’t do single drive imaging. My experience and my connections in this field tell me that this perfect world doesn’t really exist, though. Not in law firms, anyway. Not yet.

I’ve read with some interest some of the commentaries about the recent moves of high-level eDiscovery experts from various firms and vendors. As someone who made a much less glamorous move myself recently, I’m curious about the different reactions. One of them was from Rees Morrison that caught my eye:

Ay, there’s the rub. Just when an employee becomes expert in e-discovery, some vendor or consulting firm poaches them. The lure of more money, variety, and an upward career path persuades those who learn the trade at the expense of with a corporation or law department. As I have written, it is hard to keep talent when dollars and stimulation beckon

Rees, of course, is looking at this from a managerial perspective. Many, many firms have been pushed into eDiscovery as the hot new area to have some expertise, however they didn’t actually have any expertise in-house. So they found someone with some technical chops, and worked to get them trained. Eventually, with some training, some experience and a whole lot of work, they have someone who is pretty darn good, if not expert.

The problem here though, is that internal processes for promoting, and rewarding, this new found expertise don’t keep up with the overall market. Let’s face it, eDiscovery is a hot, growing, market. If you want to be in the forefront of it, you have to make a commitment, and an investment in your people, and the resources available to them. You can’t dabble on the cutting edge, you’re either committed to being on the forefront of eDiscovery, or you run the risk of the people you’ve invested in, leaving for greener pastures.

In all honesty, I’m not sure many firms should be trying to be on this cutting edge. Depending on outside resources is better than relying on underdeveloped and underfunded internal resources. Sure, it’s great to be able to say to a client that you can handle eDiscovery in-house, cheaper than using an outside vendor. But you have to actually handle it, cheaper. Mishandling it, cheaper, is not an option.

If you’re going to play here, be prepared to live in a competitive environment, be prepared to invest and commit to the resources and people you need, and be willing to go out and recruit experts when yours inevitably get poached. The cutting edge is exciting, and can be highly rewarding, but there is risk.

Interestingly, I find myself thinking back to the 90′s, when the same sort of complaints would be heard from small and medium sized businesses about their IT people. IT skills were hot, and you might spend time training someone, bringing them along internally, and saving money compared bringing in an established “expert”, but eventually your person became an established expert and a company willing to pay for one would grab them up.  Business survived by finding the proper level between skills, technology, people, and outside resources. Law firms will too, but like everything else, they’ll do it slowly.

If you, like me, weren’t able to attend ABA Techshow this year, or you were there and didn’t attend the IgniteLaw talks,  the videos are now online at LexThink’s YouTube channel. Lots of food for thought. It might just spark a few blog posts over the next couple of weeks too, assuming I can get through them sometime soon!

Since I’m learning a batch of new tools as part of the day job, I wanted to make note of something that came through TechoLawyer last week. I figured the best place to keep it, and share it for anyone who might want to learn more about these tools as well, would be to post it here. So, here it goes!

Are you a LexisNexis LAW PreDiscovery®, Concordance®, CaseMap® or TextMap® software user? Did you know that there are value-add training tools that can help subscribers manage their data more effectively and efficiently?

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LAW PREDISCOVERY

The LAW PreDiscovery Answer Center is an online repository with tips and tutorials to help you get the most out of LAW PreDiscovery.

On-site custom or standard certification training classes are conducted by experienced professionals at the user’s office or at a local LexisNexis center. Learn more about LAW PreDiscovery training.

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CONCORDANCE

LexisNexis offers Concordance users access to the new Concordance Answer Center. This powerful online learning center brings together Concordance and Concordance Image®. The Answer Center is updated in real-time with the latest product updates and user guides. Users can get started quickly and intuitively by following links to popular topics and resources or by browsing the site using the Contents, Index and Search tabs.

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LexisNexis offers a variety of training options to help CaseMap users learn more about this suite of case analysis and fact management products. The CaseMap Answer Center contains information about migrating case files, managing SQL case files, and also hosts online tutorials.

For just the fundamentals, users can participate in a 60-minute complimentary phone session on the core functionality of CaseMap. Each session is conducted one-on-one with hands-on software training.

Finally, a collection of more than 50 pre-recorded training events are posted in the CaseMap webinar center. Users are welcome to view the pre-recorded sessions anytime at no charge.

I caught this post over at Above and Beyond KM today while I was taking a look at twitter updates from LegalTech New York.

It’s about the ethical and practical considerations of outsourcing legal work. Mary doesn’t mention ediscovery specifically, but she did share with me that ediscovery was absolutely mentioned during the session. Specifically in regards to this:

San Diego County Bar Association Ethics Opinion 2007-1 (January 2007) — this is an important opinion and should be read by every firm considering outsourcing. It discusses a hypothetical in which a firm fails to meet its ethical obligation to prevent the unauthorized practice of law because they lacked the necessary substantive legal knowledge required to assess accurately the quality of the work performed by the LPO provider.

So the question becomes, what level of expertise does an attorney need to have in order to ethically “oversee” someone conducting e-discovery? Even if the outsourcing is just allowing the client to self-collect, or allowing an IT person to do the collection, and processing? It’s an interesting question. One I’m not qualified to answer, necessarily, but I’d like to throw a hypothetical at you.

Let’s suppose you’re an attorney, and your client has been asked in a discovery request to produce all emails between two custodians. You allow one of those custodians to self collect, with instructions to search for emails that are responsive to the request. The custodian, in turn, simply exports the folder he created regarding this business contract, and you turn this over to opposing counsel, signing off on the discovery as “complete”.

Is it really complete? Nope. Should you, as the attorney have signed off without knowing how this custodian “searched” their email and the limits of what they had done? In this case, simply watching how they collected would have told even the most technophobe attorney that it wasn’t a complete search. In other cases though, the attorney would need to know the limits of email search (Outlook cannot search the contents of attachments, for example), and perhaps understand how the email server archives messages, or if there is a DMS where email might be stored, etc.

Does the ethical duty to oversee legal work being done by non-lawyers apply here? What do you think?