Free webinar Dec 2nd: A Call For Change — Privilege Logs in Modern Litigation (Facciola and Redgrave)
Nov 25th, 2009 | By mrposse | Category: Webinars, Seminars, Surveys
Exploring creative and effective ways to protect privileges while saving time and money
Date: Wednesday, December 2, 2009
Time: 1:00 PM (EST)/10:00 AM (PST)
Hon. John Facciola (U.S. Magistrate Judge in the District of Columbia) and Jonathan Redgrave (partner at Nixon Peabody LLP) will discuss their recently published law review article addressing the process for claiming and adjudicating privileges in the era of electronic discovery.
They recently appeared at the Georgetown Law Advanced E-Discovery Institute (click here).
After briefly discussing the challenges presented by the volume and complexity of discovery today, the webinar will focus primarily on potential solutions to address these challenges in a defensible and sensible manner.
For full details and to register click here.
For a while now, I have been advocating for an Agile approach to ediscovery and ESI review, –a methodology very different from that currently proposed by Sedona and the EDRM. My contribution is to build the case for bringing Agile to the practice of law. I certainly did NOT invent it, but I’m rapidly building bridges and space on-line to explore. I’m sorry it’s taking so long to publish my thoughts, but substantive materials *will* be out before the New Year.
Agile ideas existed long before the “Agile Manifesto,” but this document pulled the threads together and has endured. It is a brilliantly simple statement and despite the passage of time, the 12 Principles and related Declaration of Interdependence remain powerful guidelines. I encourage those interested to read “Surfing the Edge of Chaos,” in order to understand more about “complexity theory,” which drives all of Agile thinking. There is a great deal of information about it online and plenty of YouTube videos to consume.
Clearly, Agile is doctrinally well-developed and in use by a large number of software companies, but there is a growing awareness in marketing and other business units that Agile can strengthen and improve teams outside of software development. Of course, there are also flavors of Agile and I use the term broadly, to encompass even Lean and Kaizen concepts.
This is not to say that Agile is easy: it’ is decidedly not easy. It is a paradigm shift that will certainly take a few years to mature, as lawyers test and improve core offerings. Nonetheless, there are practices lawyers can implement *now*, which will alleviate some of the pressures identified in this law review article. For guidance, lawyers can not only turn to software vendors (who admit to using Agile in their own work), but also they can ask their tech clients!
I would go so far as to argue that effective internal teamwork is a foundation for the Sedona call to co-operation. Without internal “group coherence,” I seriously doubt external co-operation will happen. Rather than setting lawyers up to fail, I’d like to think that by offering Agile, we provide colleagues with methods that retrain us as a profession away from “heroics’ and “cowboyism,” towards producing “value” sooner rather than later, embracing change as a given and making collaborative practice the norm.
Agile gets us firmly out of the current panic mode and makes transparency less frightening, because it is deeply concerned with risk management. It is also timely, as law firms explore outsourcing, because Agile empirical evidence suggests co-location to be optimal [A. Cockburn]. Yet, when properly implemented, experts have shown that Agile practices can scale beautifully to distributed teams [J. Sutherland, P. Pixton].
The “Agile for Lawyers” project is complex, therefore it will be highly-iterative. Iteration and a high degree of transparency allows everyone can participate, critique and comment. While not limited to litigation, I think that litigation is the best place to start to see rapid practice improvement. The “Litigation Ecosystem Framework (LEF),” is simple to understand, adaptive and based solidly in Agile principles of self-organization, prioritization, rhythm, empiricism and emergence. The LEF then provides boundaries for implementation of “Legal Scrum,” which is one Agile approach to discovery project management (closely aligned with XP). There are several other methodologies, but (my current view) is that Scrum (slightly modified) has the most to offer as an alternative to PMI-style project management. Finally, there is the “Agile Agreements” project,–which will support contracts,–including the type of co-operation agreements envisioned by the FRF!
The above background is provided only to provide a backdrop, respectfully, for the following comments on the Facciola-Redgrave Framework. I don’t promise that these are the most important points, but I hope the commentary strengthens the discussion:
1) Making privilege review “good enough” will not substantially lower ediscovery review costs; “relevancy” is still the cornerstone
Sampling, keyword/concept search, culling and quality control to priv log categorization is a long road
2) Critical mass competence and process issues may be higher-level overall drivers of cost than volume
3) The Framework suggested seems to be based on federal-level outlier cases
4) We may be able to deliver more value, faster by reconfiguring systemic constraints [ fast-tracking, EDRM, vendor tools, etc. ]
5) Ethical considerations (zealous representation of *client* interests) may need re-balancing
6) Judicial economy may not be served when counsel are either not able to perform up to speed,–or are smart enough to act in bad faith without getting “caught”
7) Cases that involve 150 million documents are doing well to have priv logs of 100,000; Given that a case of that magnitude is not likely to be fast-tracked and is likely to approach “bet the company” status for a really big company, is a log of 100,000 truly unreasonable?
9) Resolving a case on its merits may not be the best solution, even if the client complains about ADR and cost
10) Significant savings can be obtained through reduction of duplicated efforts within cases and between cases [e.g. objective single repository reviews]
Thank you for making this webinar freely available!