Category Archives: Litigation

The Joys of #DocumentReview – Confessions of an #eDiscovery Nerd

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Document review is one of my favorite topics.

There, I said it. Condemned to dorkiness forever. Worse, consigned to the category of having a bent for the mundane, rather than the soaring flights of appellate briefing or the scintillating repartee of court. But bear with me while I argue for why it’s good and how as an industry, we can preserve its benefits.

I’m not sure that document review is necessarily mundane, but there’s certainly not much adrenaline to be found in it and it has been permanently stereotyped as a repetitive, low status task that was once the province of young associates. As it turns out of course, young associates don’t do it anymore. Or I devoutly hope they don’t. It’s been at least ten years since young associates (in any type of firm) were an economically reasonable work force for document review.

However, I’m one of the last cohorts of lawyers that really did cut their teeth on document review, before it was economic malpractice to expect it of me. I still think young associates should do it, but under fairly controlled conditions. These are the conditions that made document review good for a junior associate, in 2000 to 2003:

  • There weren’t nearly as many documents. The business documents in my cases were usually about four years old, and in many cases more than ten years old. In the early to mid-1990s the volume of business email and other electronically stored information generated in corporations had not yet ballooned.
  • Much of my time was spent evaluating and categorizing documents that had been produced to my clients, not making broad general determinations about responsiveness (although I did some of that too).
  • The electronic discovery and document review software industry was still in its infancy. There weren’t many choices and the few options presented documents in a linear fashion.
  • The lower volumes of documents made linear presentation appropriate.

Here is how document review benefitted me:

  • I immersed myself in the facts. I got to know the slang and terminology of the business, the witnesses’ voices and relationships, and the specific types of documents that flowed through the veins of the business.
  • I learned how to extract evidence from chaos. After playing in the boneyard with the facts, I could see patterns and relationships and determine if they matched the existing theory of the case.
  • I learned how to build a narrative from documentary evidence: which documents were good for witness prep, which ones were good deposition exhibits. I learned how to prioritize and aggregate the pieces of the puzzle.

The reasons why young associates should not be doing document review now include:

  • Volume: there is now so much information, that is so much more duplicative, and contains so much garbage that no human should be reviewing large amounts of ESI as a matter of course, much less a highly educated human asset billed out at hundreds of dollars of hour.
  • Staffing: law firms no longer have “excess” associate hours that can be absorbed by document review. Firms are hiring fewer new associates and clients are less willing to pay for their time doing any task, much less one that is perceived as menial.
  • Complexity: review software has become more sophisticated, requiring more training to use effectively. There are also more complex data types to review, such as structured databases and social media. While much of document review involves the same basic tasks (binary decisions about whether material is privileged and whether it goes out the door at all) the tactics and available tools for doing so efficiently have changed. Different types of review call for different software, which can in turn require different work flow and process management to make them most effective.
  • Effectiveness: higher volumes of lower value documents, combined with more pressure on associates to do more complex, higher value tasks means that associates spend less time reviewing and what they review is less valuable. And the infrastructure investment in a review project is likely to be more complex than it was ten years ago, whether that involves technology assisted review (TAR), defensible sampling methodology, tiered review or anything else.

However, all of the benefits of learning a case via immersion in “primary source material” still remain. New litigators who can’t spend large amounts of time reading invoices, correspondence and other topical minutiae are missing an important perspective. I don’t think there are simple, standardized ways to recapture that value because case sizes and economic constraints vary so much. Here are some preliminary thoughts:

Thoughtful use of TAR: TAR methods and software are still in the experimental phases. People have been saying for at least five years that TAR is going to eliminate human review. But it hasn’t and it is extremely unlikely to become “plug and play” unless it develops true artificial intelligence. However, it can be used to reduce volumes and take out “white noise,” creating a review universe that would be manageable and meaningful for new practitioners.

Residency or internship-style training for new attorneys: The professional training model for lawyers is problematic in ways well outside the scope of my topic here, but one area where law firms and other employers of new attorneys have to make decisions is how to give attorneys meaningful on the job training without charging clients by the hour. It would be a simple matter to give attorneys rigorous, immersive training in real case documents if law firms didn’t feel they didn’t needed to have those attorneys as economically productive billing units the minute they pass the bar.

Professional project management: for many years law firms (and possibly government agencies as well) simply assumed that anyone could do document review and that if you pointed associates at boxes of documents a useful set of documents would arrive on a partner’s desk some time later. That might have been true when there were fewer documents and documents had more marginal value. Now it is critical to have staff whose professional function is to assure that the right tools are in place and fully supported, the users are effectively trained on the tools and there’s a quality assurance process in place. Lawyers generally don’t have all of those skills and they certainly don’t develop them unless they have an opportunity to learn them. Deciding which personnel are the best for discovery tasks frees up lawyers for case engagement and fact development

Lawyers should still be doing document review, but in the context of better and more informed management and use of technology.

Litigators, #BigData and #InfoGov – #GeorgetownEDI Part IV

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Plenty of folks have asked me, when I say I do eDiscovery, “Oh, so you do records management?” The answer is not really. Records and Information Management (“RIM”) and Information Governance (“IG”) share a Venn diagram with eDiscovery, but there are large areas where the two exist independently and require different knowledge and skill sets. I’m happy to help as much as I can, but RIM isn’t the same as eDiscovery or litigation readiness. I can offer value on some specific issues because a corporate litigant’s information management culture impacts litigation and the eDiscovery experience feeds back into information governance.

EDiscovery specialists often back into RIM and information governance over time because eDiscovery challenges can be the fire that forces a company to rebuild its information governance house. The cost and complexity of commercial litigation with high volume data requires litigators to think about how their clients manage their data. After the crisis has passed, litigators can offer value from lessons learned in litigation when an organization is revamping or developing an IG plan. This year’s Georgetown Advanced eDiscovery Institute included several panels discussing Big Data and Information Governance. In the last few years the panelists have moved from passively describing Big Data “There’s a lot of it! It’s bigger than Mt. Everest! There’s more every day than there was in the history of time until 1992!” to talking about its value and organizational function. This year there were robust discussions about whether Big Data changes how we think of and use technology assisted review and whether the concept of “defensible deletion” is dead.

The panelists also offered some nice new buzzwords and phrases including “ROT” = Redundant, Obsolete and/or Trivial data and “Baked-in Information Governance” (IG that requires less effort on-the-fly). Incidentally, “Information Governance” is not just “RIM on steroids,” according to this year’s Institute faculty. RIM is more centered around the mechanics of content management and IG is more multidisciplinary policy making at an enterprise level. Also, who ones IG stakeholders are varies between organizations, although generally they include some combination of Legal, IT, Risk, Security, Records and Privacy and may include HR and the business lines.

The other buzz phrase in the information governance discussion was the “black swan”, the unanticipated, high impact (often catastrophic) event. Litigation and scandal (which then results in regulatory inquiry or litigation) are prototypical black swans. Some include data breaches as an example, although at this point I don’t believe they qualify as black swans because they can no longer be described as “unexpected”. The theme that emerged was “don’t waste your black swans.” Most people don’t react to information governance challenges with urgency: the sky isn’t falling until my sky is falling. So when your sky falls, or a black swan falls out of your sky, learn from it. Develop your culture of information governance in a way that allows you to reduce the cost and disruption of future crises by making data more accessible and better organized or your process more transparent. Learn to mine your data. Understand all the types of data your organization creates and maintains. Think through why you have certain data types and how best to use or dispose of all the data types. These are long term, iterative discussions, but overall they result in a healthy organization (with less ROT).

Are you listening? In-house counsel lay it on the line about #eDiscovery #Risk and #Process – #GeorgetownEDI

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I’ve been outside counsel my whole career and the thing that impresses me the most about in-house counsel, from my seat in the ballpark, is that they have a job to do. So they’re mostly no B.S: they don’t have to convince you to buy what they’re selling. When an inside counsel says “you’re not warming my heart,” outside counsel had better perk up their ears and take good notes.

This year at the Georgetown Advanced eDiscovery Institute in-house counsel from some of the largest companies in the world in each of their respective sectors (finance, tech, retail, insurance) spoke on a panel about how they handle eDiscovery. The dominant themes were consistency, process control and risk management. Not all of them have set up a freestanding eDiscovery shop in their organization, but they have all built out a significant eDiscovery management capacity because that is the best way for them to arrive at a repeatable business process. They want to maximize efficient and consistent data identification, collection and processing, which often means having as few different players and transactions as possible.

The speakers described minimizing the number of service providers and identifying and selecting sophisticated service providers for repeat business. This decision-making applies specifically to outside counsel as well. An organization with a lot of high value litigation needs a discovery “beach master” on their case team to handle discovery who knows the organization and knows the legal strategy. What I found surprising was the in-house lawyer speaking was clearly still dealing with some firms who put a junior associate on electronic discovery because it is perceived as a low status task.

Another counsel spoke of conflicting risk mindsets between outside and inside counsel. Every inside counsel I’ve ever spoken to says “outside counsel are too risk averse.” Inside counsel manage risk just like any other business factor. They don’t want litigation counsel telling them they can’t take custodians off of hold because “something” might happen, particularly if outside counsel can’t offer a knowledgeable, risk based evaluation of why a particular group of custodians is on hold in the first place. Outside counsel as a profession are still doing a poor job of aligning themselves, logistically and economically, with in-house litigators.

The goal with centralizing in-house eDiscovery is to eliminate process “drift” and allow focused, incident specific response when and where it is actually needed. Putting together the right team and ediscovery strategy allows for a proportionate litigation response that works for the business. Outside counsel need to know that in-house counsel constantly have to do more with less. Again, what is most astonishing for me about these messages is that clearly these inside counsel were used to delivering them and probably saying variations recently, to actual outside law firms. How can it be that in-house counsel at a Fortune 100 country is still saying “there’s some good lawyers out there that just don’t understand the technology.” Of course there are, but how are they getting in those doors?

There’s a time and place for outside service providers – counsel, consultants, software and eDiscovery providers. When my clients need outside counsel, they really need them. And it’s nice to be loved, but anyone who’s been doing it for a fraction of the amount of time I have knows that you don’t just sit around waiting for the work to come to you. There’s a big part of being in any service profession that involves convincing people of your worth and your purpose in the world. With inside counsel people might not always be happy to talk to them (so they tell me), but there’s a reason they have a job. And “we” don’t get jobs if “they” don’t think we understand their values and incentives.

So here’s what I took home:

  • Don’t just listen passively, but anticipate what your client needs in terms of risk and cost.
  • “Your” litigation isn’t their only litigation. Litigation isn’t special, it happens all the time. Make it a repeatable business process, quantify the economic risk.
  • Understand the value proposition in eDiscovery. Cheap isn’t always the right price. Fair price for good quality is the goal.
  • For heaven’s sake, know the technology enough to be an intelligent consumer and advisor.

 

Yoga, Socrates and Jefferson’s Tweets – #eDiscovery #BigData and #Social Media at #GeorgetownEDI

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As the eDiscovery trade matures and more events draw national attendance, Georgetown Law’s Advanced eDiscovery Institute is still top of the pack in its 11th year. This year’s Institute (November 20-21) was a packed house of 600 ediscovery nerds, gathering to listen to leaders in the field speak on panels, tease each other with in-jokes about Technology Assisted Review, collect pens and chargers from the sponsor tables and get CLE credit. The judges most knowledgeable in the field are almost always there. This year featured a special address from retiring U.S. Magistrate Judge John Facciola, who got a standing ovation when he started and when he finished. I’m going to do brief write ups on several of the panels over the next couple of days, but the overarching theme for me, as it was at the Sedona Conference meeting a couple of weeks ago, is the extent to which the capabilities and social role of technology are outstripping the law. A recent New York opinion on social media pointed out that Thomas Jefferson and other Founders would almost certainly have tweeted. They partook in the public discourse of their own day with vigor. But even still lawyers and judges have to stretch applying legal reasoning from 1789 to Big Data, GoogleGlass and Facebook. It’s like yoga for the legal mind: you can get there if you try, but it feels wrong, even if it’s ultimately good for you.

Hon. John Facciola (image credit Ralph Losey)

Hon. John Facciola (image credit Ralph Losey)

This year’s panels included an overview of recent cases on social media production, discussion of warrants and mobile devices, in-house strategies for managing the economic process of high volume ediscovery (always one of my favorites), a lot of discussion of Big Data and the obligatory overview of the revisions to the Federal Rules of Civil Procedure. Just about every panel included a sense of speed and digital change, swamping the most analog of professions. (To be honest, law isn’t even analog). Speakers seemed game, but a little bit dazzled in the face of fitbit data, dense layers of social media metadata and fingerprint locked phones.

Socrates

Socrates

So far the judiciary and the legal profession seem generally comfortable that we will be able to handle new forms and volumes of data that were only possible in speculative fiction when we started practicing. (I’m talking when I started practicing. I’m not even sure that there was the capacity to speculate about some of the things we have today when Judge Facciola started practicing). A contract is still a contract, a tort is still a tort, relevance is still relevance. The incapacitating expense of litigation and the challenge that poses to the integrity of the judicial system is growing. But that isn’t a factor of technology. It’s part of the 1%-ization of our entire economy and society. So while Judge Facciola played out a dialogue between Socrates and himself about the morality and efficacy of the adversary system, that’s the question that’s always with us. It remains to be seen whether the adversary system’s flaws – incentives to hide evidence and fight over minutiae – get worse with expanding technical complexity, or exist independently of it.

I’m a Litigator and I’m Here to Help

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The managing partner of one of my past firms once said, “I hate when litigators come around. It’s just so much bad feeling! Most of what I do is building things and creating things and making people happy. I love making people happy. But when you bring in a litigator, no one’s happy. It’s all fighting and destruction. I see them coming and want to run.'” He was a highly successful M&A lawyer and he was only partly joking.

At the time I was a mid-level associate and his words really rubbed me the wrong way. I loved my job and I loved my clients and was thinking “Why do you have to be hating on litigators! Maybe you shouldn’t screw stuff up so we don’t have to bail you out.” But as time went on, I got a better feel for what he was talking about. No one needs a litigator unless something bad is happening, or is pretty likely to happen soon. Litigation is expensive, it isn’t in anyone’s plan and unless you’re big enough to have constant or regular litigation, it throws everyone off their game and budget. So I tried to get in the habit of telling new clients, “I’m sorry you have to even deal with me. Just because I like my job doesn’t mean you like having me here, and we’re going to try to make this go away as painlessly as possible.”

This is a hard lesson to learn for a lot of litigators. Most litigators do it because they love it. Classic litigation has a gladiatorial adrenaline charge. Even if you’re not going to trial often (and most commercial litigators don’t), the jousting with opposing counsel on the phone, on paper and in hearings can be a lot of fun. At least that’s why a lot of litigators do it. They like the zip and thrill of it: the battle, the risk and the eventual triumph. But commercial litigation costs a lot of money, even if you can turn it into a rational business process (I think you can, but that’s the topic of another post). When I as the litigator get paid, that means someone’s paying me instead of using their money to do something they really wanted to do. I have to keep that in mind.

That’s the other thing I remember learning: the first time I heard someone say “clients aren’t in the business of litigation, they’re in the business of making stuff, or selling stuff or buying stuff.” That’s pretty basic, but it’s a hard thing for outside litigators to remember because we ARE in the business of litigation. It’s the stuff we “sell”. It really does help to say it out loud, to oneself and one’s clients.

So that’s the challenge. Being a litigator means your bedside manner has to be serious and conciliatory. Don’t be the oncologist waltzing in and saying “I looovve these tumors! Let’s do this thing!” Seriously, I’ve been doing this for a while and I’m still reminding myself. Because to be honest, I do kind of love it.