LDM Global (for more about the company click here) is an international information management/litigation support solutions provider.  It specializes in data recovery, computer forensics, large scale electronic and paper based discovery services and international projects. We had the opportunity to meet Scott Merrick, International Marketing Director of LDM Global, at a “Managing Cross-border Discovery” panel during the International Legal Support Leaders Conference this past May (click here).

LDM Global is hosting a webinar tomorrow on “European Data Privacy – Consent and Compliance” starting at 11am EST, 4pm GMT.  It will run 1 hour.  The speaker for the webinar is Robert Bond, Head of Information Law at Speechly Bircham (click here), a UK law firm.  Data privacy is a significant issue for global companies and law firms as they try to navigate the often conflicting requirements for document management and review between the US and European countries.  The webinar will focus on interpretations of consent, and the application of consent – including processing, data sharing and transfer outside of the EU.

For Posse List members working with the myriad issues involved in European data privacy, and for those just wanting to learn, it is a great opportunity.  And it is free.

To see more about the event and to register click here.

With two major conferences back-to-back, The Masters Conference (click here) and the ACC Annual Meeting (click here) we have been a bit pressed for time to write up our thoughts on both plus all the interviews we conducted at each.

We agree with Brett Burney’s observation:  vendors at the Masters Conference seemed to emphasize a general lean towards the “left side”” of the Electronic Discovery Reference Model.    For Brett’s full post click here .

And it was the same at the ACC Annual meeting.  The seminars and presenters (and the attendees) repeated the same theme:  how do we, as in-house counsel, manage our endless streams of digital data?  It was more than just “how do we reduce the costs for e-discovery and cut the time necessary to complete EDD projects?”   As we said in our first post from ACC (click here) corporations need “enterprise class products” because of the global convergence of audit, compliance, regulation, and risk.  Because the mantra was: cost and communication.  Give us technologies that make all our information “reasonably accessible and at an affordable cost …. help us close the gap between the technology out there and what we need”.  And help us manage the data at the start.   Our coverage at ACC was extensive, and we chalked up 8 major interviews.  We’ll have much more on ACC in our wrap-up later today. 

But now, some observations on The Masters Conference:

On Tuesday and Wednesday, October 13 and 14, 2009, the Ronald Reagan Center hosted the Masters Conference Series for Legal Professionals with a theme of Navigating through Discovery, Risk and Security.

The big news: the guiding light of the Conference, Sasha Hefler, has left The Masters Conference and has joined a major e-discovery consulting company (for our profile on Sasha click here).   There will be a press release issued this week detailing her new position.  It is a company that has pioneered “early information assessment” and is a step ahead in the ECA market. 

One big take-away for contract attorneys who make up the largest percentage of Posse List members was a suggestion by Dave Benton (head of Digital Forensics & eDiscovery at The Home Depot) who recommended that those interested in developing the skills needed for new e-discovery should become members of the American Society of Digital Forensics and eDiscovery (www.asdfed.org) a non-profit organization that promotes education and the distribution of information related to digital forensics and electronic discovery.  There is a Washington, DC chapter.  With so many contract attorneys moving away from the document review side of the EDRM (or who want to move away from that side) it is a good suggestion.  We’ll have a more detailed post about Asdfed.

We had various reporters at the two days of educational tracks and the following are some highlights from various panel discussions and seminars on everything from leveraging cloud computing, to early case assessment tool evolution, to discovery cost determination and cost cutting. The sessions were held in 3 staggered conference rooms with space for 100 to 250 attendees in lecture hall format, including two projection screens for presenting the more difficult lecture or panel concepts. (For a more detailed agenda of what was covered click here).

Each day had its own keynote speaker.

On Day One the keynote speaker was Randy Sabett, a partner in the Sonnenschein law firm and based in the D.C. office  He is a member of the Internet, Communications & Data Protection practice. He counsels on information security, privacy, Public Key Infrastructure (PKI), digital and electronic signatures, federated identity, Sarbanes-Oxley, state and federal information security laws, identity theft, and security breaches among other areas.  Randy is a commissioner for the Commission on Cyber Security for the Obama Administration and teaches information policy as an adjunct professor at George Washington University and is on the faculty of IANS.

Sandy’s address was entitled  “The Evolving Nature of Data Protection…And Some New Ideas  To Consider” and focused heavily on one of the themes of the conference, “cyber security.” 

Historically, corporate America has perceived data protection purely as an unavoidable expense.  A number of factors have contributed to a shift in this view point, including continued and worsening data breaches involving personal information, much more focused and insidious attacks, and very high profile losses of intellectual property.  Now, Congress has become an active participant with at least 30 bills pending that in some way, shape, or form relate to data security.  What are some of the more radical players considering in protecting their data?  Some of Randy’s comments:

 1.  There is growing activity at the state and federal levels:  States are increasingly enacting breach of security notification and encryption requirements.  Earlier this year the Health Information Technology for Economic and Clinical Health Act (HITECH Act) was signed as a part of the Stimulus bill, providing funds to improve health IT systems for greater data production.  Over 30 other security related bills that are still pending. 

2.  Security DOES NOT equal compliance:  Balance must be achieved between security and compliance because by solely focusing on security you might miss something that is required from a compliance perspective.  On the other hand, you may be in compliance, but overlook something that needs to be done to keep your data secure.  

3.  Protecting the network enterprise:  The “perimeter” can no longer be the sole focal point as more of as more information resides outside the “perimeter” of a company.  This presents increasing vulnerability/risk to cyber attack.  A security culture must be developed within an organization to protect the network enterprise. 

4. What does cyber security have to do with e-discovery?  According to Sabett, there is a large overlap.  Figuring out where data is stored and how to preserve the data free of security risks is necessary for both computer security and eDiscovery professionals. There is procedural and technical overlap that requires computer security professionals to play active role in both areas: Some of the procedures followed and technical methods developed from an information security perspective are the same techniques and procedures used and applied on the ediscovery on side of equation: example ediscovery procedures and techniques need to take into account how and to what extent encrypted data will be identified, accessed, etc.

5. One of the keys in dealing with information security and e-discovery is to think progressively about data protection and balance that progressive way of thinking with the number one issue: the budget available to achieve it.  Information security and ediscovery are cost sources.

6.   Other examples of progressive thinking:

         - Offensive cyber capabilities

         – Cross compliance initiatives

         -  Cloud computing

         -  Follow trends in information security laws and legislative activities

         - Develop a security culture within the organization

         - Getting rid of credit card numbers altogether (the technology is available)

The Day Two keynote speaker, Magistrate Judge John Facciola, has been a US Magistrate Judge in DC since 1997. Prior to the bench, Judge Facciola was an assistant DA in Manhattan from 1969-1973, and in private practice in DC from 1974-1982. He joined the U.S. Attorney’s Office in 1982 and served as Chief of the Special Proceedings section from 1989 until his appointment as magistrate judge. He now is a frequent lecturer and speaker on the topic of electronic discovery as well as a member of the Sedona Conference Advisory Board and the Georgetown Advanced E-Discovery Institute Advisory Board. He is also the former editor in chief of The Federal Courts Law Review, the electronic law journal of the Federal Magistrate Judges Association. He has recently been appointed to the Board of Directors of the Federal Judicial Center. His most recent publication is Sailing on Confused Seas: Privilege Waiver and the New Federal Rules of Civil Procedure, 2006 Fed. Cts. L. Rev. 7 (2006). He received his A.B. from the College of the Holy Cross and his J.D. from the Georgetown University Law Center.

Judge Facciola focused his remarks on ESI and how best to navigate competent legal practice with a perspective from both sides of the bench. He instructed that attorneys with the best approach to ESI as a litigation tool know that:

▪  humility is a key trait: A judge notes when an attorney does not have the humility required, by overpromising – waiting until discovery deadline is impending only to assure a judge that 30 days is sufficient to get discovery done….several months in a row. And by underpromising – as in telling a judge that something like removing software cannot be done, only to have the judge’s clerk do just that in chambers during a 15 minute recess. Both affect credibility with the judge.

Have the humility to appreciate that on the technical side of discovery, there is a lot to understand and there must be a willingness to educate oneself and/or associate with those who have the technical skills or knowledge necessary to assist in educating oneself. You must be willing to associate with others who know the e-discovery industry and be prepared to work collaboratively between and among lawyers, and those in the technical services industry. Failure to do so, can often lead to making tactical errors in a case and bringing into question the issue of attorney competence and ability to effectively represent the client.

▪   birds of a feather: associate with those who know what they are doing in the ESI realm. Attend a Rule 26(f) conference with a forensic scientist with you every time.

 ▪   law is becoming a team sport: more and more, law is only for those that never stop learning, and look to their fellow members of the bar to help them learn the nuances in this Brave New World.

▪    the unique roleof the judge: a judge brings order, peace and sanity to litigation – and must handle larger volumes than ever thought possible. For example, the next generation of servers and PC’s will include storage capacity of an ectobyte – to provide some perspective, FIVE ectobytes of storage would include “all words ever spoken.”

He emphasized:  the role of the judge is bring order, peace, and sanity to pending cases by entering orders or enforcing orders which bring teeth to the notion of cooperation between and among the parties.

Although there is a great notoriety around cases in which there are court ordered sanctions against an attorney, party or both ( i.e spoliation) in reality,  judicial attitudes toward the sanction power is this: let’s not order sanctions and rather mediate toward “How do we fix this?” prior to the point of sanction. The success of a judge depends upon their ability to get people involved in litigation to cooperate and work collaboratively.. And judges must also be willing to self educate in the technical realm of discovery and associate with those in the industry that have the technical expertise.

▪   put some teeth in it: the judge is in the position to ensure litigants and their attorneys cooperate, and challenge the adversarial system as we now know it.

▪   break new ground: a judge observing the Sedona Conference carefully also notes that each session “blows up” a chapter at a time from the civil procedure textbook. He challenged attendees to contemplate what “the cloud” is doing to such basic concepts as personal jurisdiction when servers are anywhere in the world.            

His conclusion: judges and lawyers are lay persons when it comes to the subject matter of e-discovery and have an obligation to develop a level of competency and willingness to work collaboratively. Both need to recognize and understand what they are capable of from a competency stand point and where they need education or expertise.  

And that provides a nice segue to the key panel of the conference ….

US-UK Judicial Panel on E-Discovery

Although the US leads the world in both the legal and technical aspects of electronic discovery, there is a general acceptance that there is much to do to make this aspect of litigation an efficient and cost-effective component of case management. Although the essential difficulties are the same in England and Wales, the approach taken is a slightly different one, and there is growing recognition that the two jurisdictions have something to learn from each other.
 
Chief US Magistrate Judge Paul Grimm and US Magistrate Judge John Facciola are the undisputed leaders of judicial thought in this area in the US. Their counterparts in the UK are Senior Master Whitaker and His Honour Judge Simon Brown QC.

These four were brought together again by Chris Dale of the UK based e-Disclosure Information Project (for our profile on Chris click here and for a link to his site is click here).  It was a repeat of a successful panel in London in May 2009, moderated by Patrick Burke, Assistant General Counsel at Guidance Software.  For our profile on Patrick click here.

Patrick has already written about the panel on his blog so rather than duplicate comments please click here for his analysis.

Among the other sessions we covered:

E-Discovery: The Government Perspective

Private industry struggles with the scope and burdens of e-discovery, but so do government entities, whether as the requesting or responding party. This panel discussion addressed how government agencies are structuring their internal e-discovery groups and how they expect private industry to respond to their requests.

Wendy Butler Curtis, Special Counsel for E-Discovery, Orrick, Herrington & Sutcliffe LLP was moderator, and she encouraged a healthy discussion among Paul Bohr, enforcement  attorney with the SEC; Larry Creech, of the U.S. Postal Service; and David Shonka, Principal Deputy General Counsel at the FTC. The panel discussed, among other things, how the government addresses the cost of electronic discovery.

A summary of their comments:

- The FTC encourages dialogue, Shonka said.  His agency makes broad requests necessarily, and will refine those requests often after a discussion with an attorney or based upon prior, recent investigations. They key is to pick up the phone and discuss costs in time and money with the government. With the FTC handling the data in house, the government lawyers are most able to have discretion during an investigatory request.

-  Bohr states that he is always shocked when private securities attorneys say there is a “lack of communication”’ with the SEC – because he is always willing to meet on costs of his requests, and yet seldom even get the initial phone call.  His preference is to get a call from a compliance officer, perhaps with a series of report layouts to guide the discussion, so that Bohr’s request targets the most relevant and available information. The SEC also handles produced data in house, so Bohr and his colleagues welcome discussion on what makes sense financially and practically.

- Creech’s ” businessman’s perspective” was apparent during his overview of policy. He feels strongly that every entity should have a “datamap” of all electronic information held by the entity. This datamap will guide internal resource planning and budgeting through retention schedules and federal retention laws, and will guide discussions with government when a request arrives. He reminds the panel and attendees that this is not a “money maker” per se, so has not received the attention it deserves. Creech cautions that as the matters work through the courts, such information can be a “money loser” when policy-not-followed results in judicial sanctions/fines or in information being produced  to adversaries in discovery and resulting in large awards in litigation.

Effective Document Collection, Legal Hold Protocols (… and the cost, my God, the cost!!)

This was a panel discussion with a Powerpoint presentation that never got past the first slide.  Well, that’s not quite true – at the end they showed the last slide, with the names of the moderator and panelists.  The moderator was Craig Carpenter (Recommind, in-house counsel), while the panelists were Wendy Curtis (Orrick Herrington), Julia Peixoto (DHL in-house counsel), and Tess Blair (Morgan Lewis) and they did a fabulous job.

The reason that the session never got beyond the first slide was that it took on a life of its own and wandered from the path dictated by its deck of slides.  It was a wonderful collaborative stroll with comments triggering supporting comments or segues onto related topics. Comments and questions from the audience were welcomed and incorporated into the discussion and the session was very fruitful and covered the topic as well as it could in an hour.  The panelists’ contributions complemented each other effectively and they were obviously chosen for the different perspectives that they brought to the session.

Having said this, what were the paths strolled down?  Our notes went all over the place and maybe somewhat cryptic, but here is a reconstruction of the main points:

    Discussion of the legal hold process.   First takeaway:  There is no specific or standard form, no one rule, no one size fits all.   Second takeaway: It is important to know your client, the corporate culture, how employees work together, and what tools are available.  Also, to what extent legal matters are handled in-house.  Third takeaway:  There is little case law in this area and few judges are aware of the law.  Therefore, be balanced, be reasonable, be consistent, and be practical.   A plaintiff will send out a litigation hold notice, also called a preservation notice, when there is a “reasonable anticipation of litigation”.  It is also at this point that you can start to apply any privilege protection under the Work Product doctrine.  At this point you should get a survey of what documents people have.  From this you can determine who the key custodians are, what the sources of the data are, and what types of documents or data you have.   You will later provide a collection certificate that specifies the locations of all the relevant documents and that they have been produced.  You will be able to show good faith by establishing and following policy for the 1) training, 2) implementation, and 3) managing of the collection.   You need to have a good faith argument for not preserving data.  Factors usually used are proportionality and cost.  As a practical matter, a lot of negotiation is done behind the scenes and you can have a meet and confer on the side.  

     Quick preservation of relevant data.   A litigation hold affects all of the data that is within the possession, custody, or control of the company.  The company has to identify, preserve, and collect this data.  The company  can make this easier by having the proper processes in place and by anticipating litigation.  This is especially important for a company that is sued frequently.  Most records now are electronic and they present their own challenges.  It is important to be consistent and understand the consequences of what you are doing.  In-house counsel does not want to overconserve, because of the significant costs involved.  You cannot do this in an ad hoc manner.  You need to have policies and procedures for document retention and production.  Also, you need to spend some time and effort up front.  This will save you a lot of time later, and you need to convince the finance people of this savings.  The use of ediscovery tools can be used to automate the process and also save some of the costs.  Advise your client that ESI that is not stored, is not in its possession, custody, or control and, therefore, does not need to be produced.   Similarly, and for the same reason, IM is usually not saved or archived.  You need to ask each person in the organization how they manage their data and advise them accordingly.  (The caveat with this is that as soon as you give advice to your client, the technology will have changed.)   In the discussion on back-up tapes, it was noted that this is the least efficient method for storage and recovery, that the data is generally elsewhere, and that backup tapes are redundant. They only form a snapshot at a particular point in time and it is the last full back up tape that is the most important.  The company can save lots of money by even a slight modification in its backup procedure and schedule.  Note here that if data is not deemed to be reasonable accessible, it does not have to be produced.  The client should be counseled to use back up tapes only for disaster relief.

    What about the costs?   It is expensive to lock down data.  Internally, the company should have a policy in place to prevent the unnecessary retention of records.  Ninety-five percent of a business’ records consists of junk!  Determine what needs to be retained and involve the IT, business, and records management people. It is useful to use date ranges for this purpose.  Outside counsel should be used to narrow the scope and to negotiate – that is where they are effective. But don’t let outside counsel run the matter and don’t do things by consensus; the company needs to take ownership and determine the direction, so long as it’s done reasonably.   Use proportionality.  Consider the dollar value of the cases and give priority to your high profile cases; for a small case take a less costly approach (it might be sufficient to stash a CPU or retain a hard drive in a storage area, for example).  Also, limit the number of vendors that you send your data to.

     Some of the questions asked/answers given:

              Q.        Do you always have to consult outside counsel before lifting the hold?

             A.         No.  In fact, you can schedule an automatic lift that will occur unless there is an affirmative objection by outside counsel.  It is often advisable to do a “targeted” preservation instead of a “blanket” preservation, and this makes it easier to lift a hold.

             Q.        Do you have to notify the custodian that you are preserving his data?

            A.         No, and there are ways to preserve the data without notifying the custodian.  In fact, there are even ways to download his electronic data from the back end.

            Q.        What if your client is involved in the litigation, but is not a party to it?

           A.         Sorry.  Pursuant to Rule 45, a subpoena applies equally to a third party.  But you can move to quash.

            Q.        What do you do if you are served with a subpoena?

           A.         If you get an agency subpoena, be sure to wear both a belt and suspenders initially (Wendy Curtis).  Later, you can negotiate the scope with the agency or move to quash.

           Q.        What about data archiving?

           A.         Very few companies have archives in place at the moment.  Archiving is a massive (and expensive) undertaking.

          And a shout from the audience:  “Eh, what the hell.  The world is going to be Google-ized anyway!”

        Our “notable quotes” concerning the present state of effective document collection:

                “Business is not designed to preserve records — it is designed to make money.”

                 “The cost of preservation is peanuts compared to the cost of collection.”

                 “To reduce the costs, eliminate the junk.”

                 “We are at the end of the beginning” (Tess Blair).  It will take another decade to get to the middle and most clients are still at the fundamental stage.  We desperately need people with new skill sets to come on board”.

                  “Technology can help, but first you need to have a very solid process in place.”
Legal Outsourcing:  Analysis of the Myths and Realities and its Impact to Counsel

Changing business drivers within the U.S. legal industry have compelled corporate counsel and law firms to reassess the traditional cost structures and resource allocation within their relationship.   Legal outsourcing (the proponents say) has proven to be “valuable for both when properly integrated into the litigation process”.   Well, they would say that, wouldn’t they?  But is the bane of U.S. contract attorneys.

And although many global corporations and law firms are embarking upon outsourcing strategies, questions and hesitancies remain for many regarding qualifications, capabilities, ethics, and geographic considerations.

But we have decided to award this session the booby award.  This so-called “analysis of myths and realities” created its own self-serving construct, spoke in generalities, and did not give enough attention to the special nature of legal offshoring.  The real value of this session consisted of the comments from the audience and not the presenters, who made me think of something Judge Facciola said earlier in the day: the importance for lawyers in knowing what they don’t know.  Perhaps the presenters, unknowing as they are, could have improved their session by outsourcing it.

New World Technology and Enterprise Opportunity: Cloud Governance, VOIP and Unified Messaging – Mission Impossible and Information Assurance

Just when corporations began to stabilize their IT services, an explosive new portfolio of technologies are emerging. These new services are economically compelling, but present general counsel with new legal complexities. Suddenly, all of the related records are “in the cloud” , e-communications are tweets and texts, “unified communications“ are Voice over the Internet (VoIP), email converts to voice recordings, voice converts to text, systems track “presence” and location. Privacy, discovery, surveillance, Federal communications law, cloud computing—how does legal ever gain control over the risks?

This new “kid” on the block (unified communications)  was introduced to attendees at the Masters Conference by Jeff Ritter (of Waters Edge Consulting) with the claim that, as a new way for storing business communications, it will displace email.  Instant messaging, VOIP, Video, email to voicemail, voicemail to email, and presence are all contained in unified communications (“presence” is the ability to let the system know how to communicate with you and where you are.)  These forms of communication are all creating kinds of records, with huge amounts of context, that defy “finding”.  And when you try to find them, it may violate the Electronic Communications Privacy Act. 

In the world of electronically stored information (ESI), and especially in the rapidly expanding space where corporate communications thrive, there is an evolution of data forms which, although not well understood by lawyers generally, is actually already being stored and is subject to discovery under the new Federal Rules.  In some cases, like that of cloud computing, it is the manner of storage that is innovative; in other cases, it is the behind-the-scenes technology of innovations whose surface functionality we are all familiar with as users, such as internet telephony (Voice-over-Internet-Protocols), Instant Messaging (IM), audio to text and text to audio message conversions, and so-called “presences” which, in response to messaging, signal an individual’s presence or absence at a certain place and time.

Ritter raised three crucial questions:

1. What unified communications services are being brought in and what will be allowed?

2.  What unified communication session-related content and data will be stored?  (session logs, session content records, source content records)

3.  What uses will be made of any stored unified communication related content or management content?  (What will we do with the data?  Security wants to analyze records historically, for example.)

There was discussion of the provisions of the Electronic Communications Privacy Act (major point is that it is illegal to listen to conversations in audio form) and the difference in privacy distinctions between Europe and the United States.  There was discussion of who should make up the unified communication implementation team of the business.  And there was considerable discussion of packet architecture, since this is the common denominator of the different communications and of different protocols.  Importantly, once the packet is sent, it cannot be reassembled without all of the data that is in the packet.  None of these topics will be explained here, since those interested in them can readily research them on the internet or in publications. 

Ritter has an uncommon talent for visualizing the digital landscape in lawyerly terms.  Seen through his eyes, the sensory overload of resources and devices on the scene today – and even those still barely discernible on the horizon – take on legal shape and substance. And they have consequences.  One of Ritter’s strengths is his ability to clarify the datalogic of these digital forms of communication. As he drills down, you see that they all rely on a packet architecture similar to internet protocols, and you realize that all are decodable and can be reconstructed to recover supposedly transient historical conversations and messages. Indeed, Ritter’s bread and butter is expert testimony. He delights in deconstructing the assertions and credibility of corporate affiants whose claims conflict with the historical record he produces – a record most were unaware existed.  

Another strong focus of his presentation is trustworthiness. His warning: security for these stored data forms is frequently absent. Ritter told stories of “penetration” tests of clouds in which the expert discovered worms capable of exporting data to offsite bad actors. In some particularly embarrassing cases, cloud storage techniques in use by discovery vendors were found to be insecure – vendors to whom in-house counsel had entrusted all manner of sensitive corporate data under an assumption of confidentiality.  

Many of Ritter’s presentations from previous events are already viewable on his blog (click here) but we encouraged him to make this one available as well.  You will his presentation by clicking here and a companion piece by clicking here.   The Posse List plans to publish a more in-depth interview with Ritter.

Bridging the Gap Between Forensics and Native Review

With many corporations defaulting to forensic imaging as a standard methodology for data collection and the cost savings associated with performing at native review – many corporations and service providers are seeking ways to bridge the gap between these two approaches. The session focuse on how new techniques for performing economical forensic acquisitions, an ways of extracting information from these sources.

The panel was sponsored by Nuix and before the session we spoke at length with Stephen Stewart, CTO of NUIX.  The panel discussed the different generations of tools for harvesting data, emphasized full forensic imaging, told war stories of criminal investigations where they had discovered key evidence in the unallocated disk space (i.e., perps had “erased” incriminating computer files), and admonished attendees to be ever mindful of sound forensic processing procedures to preserve chain of custody, etc.

The benefit of the session for professionals engaged in criminal investigations was clear. We suppose some of the more technical takeaways would apply equally to professionals harvesting for Early Case Assessment in corporate environments (hence the presence of Intel’s in-house litigation support expert, Steve Watson, who we met at the IQPC conference in Brussels.

After the session the panelists raved to us about the power of NUIX in ECA. Chuck Kellner (Vice President of E-Discovery Consulting, Anacomp) spoke of its incomparable power and speed; Gary Amos (Professor of Forensic Technology, George Mason University) added that, unlike other software, NUIX seems to have been written with the Rules of Evidence in mind.   But during the session, none really mentioned this tool – they were all focusing on a stage of harvesting that precedes use of NUIX – the stage when best practice tools include FTK Imager (by AccessData who was not at the conference) and Encase by Guidance Software.

Which brings us to our last bit … early case assessment, the gorilla in the room and the subject area that seemed to dominate the conference.

As we have reported in several posts these last few months, early case assessment (ECA) has been a major focus this past year an a half.   And, there have been no shortage of of ECA solutions to hit the market.  Obviously, as we have also been contending for over 18 months, a single integrated and affordable e-discovery platform will revolutionize e-discovery processing. 

Right now there seem to be 3 vendors leading the ECA market according to surveys conducted by The Cowen Group and ILTA:  ClearWell, Recommind, and Digital Reef.   But coming up fast are eTERA Consulting , CentralCentral, Nuix and Orange Legal Technologies. 

We recently profiled Recommind (click here).  We had extensive interviews with Digital Reef, eTERA, Nuix and Orange Legal Technologies at the Masters Conference, and we interviewed CaseCentral at the ACC annual meeting.  Those interviews will post this week in our ACC follow-ups and our special post on ECA.

The key in all of these attempted solutions is:  start with ECA and extend through analysis, review, production and post-production re-use.  Oh, and at a price point that changes the current ECA pricing model.

But we are getting ahead of ourselves.  Given the size of the e-discovery market, and given the history “first movers” in the technology industry, there is going to be plenty of room for additional players and several next generations of integrated ECA before the eventual market leaders emerge.

Last week we attended the IQPC conference ”Information Retention & E-Disclosure Management Europe” which was held in Brussels September 30th and October 1st.   For a link to the program click here.  The program is one the most elite and information-packed conference on European information retention and e-disclosure management, with the experts being the “elite of the elite”. 

The event was chaired by Patrick Burke, Senior Director and Assistant General Counsel at Guidance Software.  For our “Focus” feature on Patrick click here. 

Among the subjects covered at the conference:

* The European divisions of multinational companies seem to be taking guidance from their U.S. headquarters in the area of e-disclosure; what are the practicalities and pitfalls associated with this approach

*  Data privacy, and the laws that govern data privacy and how these can conflict with e-disclosure rulings

*  New cases from a European perspective including cases from companies such as Shell, Bayer, Intel, Microsoft

*  Cross border litigation challenges and ensuring litigation readiness

*  Protecting yourself against investigation from the US or other external countries

The judges in attendance included representatives from the U.S. and across Europe and include Judge Peck from the U.S. Southern District, Master Whitaker, Senior Master of the Queen’s Bench Division, Royal Courts of Justice, and Frank Richter of the Supreme Court of Hesse, Ministry of Justice.

The panelists included our old friend Chris Dale of the e-Disclosure Information Project and Patrick Oot, Director of Electronic Discovery & Senior Counsel, Verizon.   For our “Focus” feature on Chris Dale click here.

We could not cover all of it but a few highlights from Day 1:

1.  The kick off was a judicial panel moderated by Patrick Burke.   As Chris Dale is fond of saying, Patrick is one of the relatively few in the US who “gets” the idea that, however sophisticated the US legal system may be in many respects, those who do business in a multinational context must take notice of jurisdictional differences.  For a great review of this panel we defer to Chris Dale himself who covered that in a post here.

2.   That was followed by a panel that consisted of Patrick Oot, Steve Watson of Intel Information Risk and Discovery, Denise Backhouse of Morgan Lewis and Chris Dale.  Denise presented an excellent paper titled Seeking a Balance in the Discovery Equation: Pre-Trial Disclosure/Discovery in UK and US Civil Litigation of European-Based Data.  For our “Focus” feature on Morgan Lewis and their eData team click here.

3.  Jason Robman of Recommind led a discussion on effective document collection and legal hold protocols.  In the afternoon, Patrick Oot spoke about Cutting the Cost of ESI and E-Disclosure in a Global Downturn.

4.  Debra Logan of Gartner discussed Sorting Through the Myths and Facts of Cross-Border E-Disclosure which focused at the heart of the current predicament facing most organisations today:  the ability to know what electronically stored information (ESI) is retained and the rapid growth of both regulatory supervision and litigation. In Europe, these questions are complicated by cross border issues, the most significant of which are the different approaches to compliance, disclosure and privacy in common law versus civil code jurisdictions. Where is the data, what is its value, and is there a preservation obligation, regulatory, contractual, or litigation-related attached?

5.  The day ended with a panel moderated by Chris Dale on Accelerated Electronic Document Review comprising Greg Wildisen of Epiq Systems, Vince Neicho and Senior Master Whitaker:  a software supplier, a law firm litigation support expert and a judge who between them covered every angle.

Day 2 was  just as packed.  Some highlights:

1.   The morning started with a presentation Alex Dunstan-Lee of KPMG in London which included a preview of a survey which KPMG have conducted worldwide in which corporations were asked about their own perception of their ability to handle e-discovery requests for litigation, regulation or internal purposes.   And it revealed the “usual suspects”:  there is a small number who “get it” and are on top of the issues … and an equally small number who ask “what problem?“  And then the rest of us in the middle.

2.  What followed was a presentation by Hartwig Laute, Director European Operations for Recommind, who did a briliant demonstration of their Axcelerate eDiscovery software.   For our “Focus” feature on Recommind click here.

3.   There were some overlapping programs so we had to make a choice on what to see.  We chose a presentation by Steve Watson of Intel Information Risk & Security who presented Addressing the Disconnect Between IT and Legal: How to Build a Trusted Partnership and everything he said rang true.    The lack of collaboration between enterprise IT and legal departments is hindering e-discovery efforts, resulting in massive regulatory compliance and e-discovery risks.  There is a general lack of coordination of e-discovery efforts between IT and legal departments much of it based on the roles that each department plays in setting corporate policies and making technology buying decisions.  In recent years, IT and legal departments have operated largely independently of one another; however, with the complexity and costs of e-discovery increasing exponentially, the responsibilities and needs of each department are quickly becoming inextricably linked.

Steve emphasized that in order to effectively meet information management, litigation, investigatory and regulatory challenges, legal and IT departments must foster open communication and collaboration with their confluent needs in order to properly identify, scope and implement projects and policies.

He focused his presentation on the idea of building trust.  Among the many suggestions he offered, his primary suggestions were to “walk the flow” and “work shadow” by which he means both IT and legal walk through each other’s respective processes, and that an IT employee “shadows” a member of the legal department, and visa versa, so each department knows what each other does.  Funniest line in the whole conference: “The legal world is not binary.  ‘It depends’ is a valid legal response.” 

Note:  Steve will be at Masters Conference next week as part of a panel titled Bridging the Gap Between Forensics and Native Review.

One of the rock stars of the IQPC conference in Brussels in Brussels last week was Chris Dale, founder of the E-Disclosure Information Project.  He was on 3 panels at the conference and for his delightful description of the 2-day proceedings click here.   It was great to finally meet Chris.  We have emailed and Tweeted but we had never met.

Chris Dale is a former commercial litigation partner turned e-Disclosure consultant.  What he has done with the Project is to bring together lawyers, suppliers, courts and corporations with an interest in electronic disclosure, and to disseminate information about the court rules, the problems and the software and services available to handle them.

It is a full-time occupation.  It has no clients and is supported by the sponsorship of the companies whose logos appear on his site, plus fees earned from training and education and from very occasional related consultancy services.  The result: Chris’ prodigious blog posts and writings giving him a preeminent position in the field.

The Project had an interesting start, and Chris has a fascinating background.  After leaving Oxford University, he qualified as a solicitor in 1980 and has worked as a consultant and developer in litigation support since 1993.  His work has been built upon 4 competencies:

* knowing the rules and practices of UK civil law

* knowing the burgeoning area of UK e-disclosure

* a passion for writing

* an interest in what  influences people

In 2007, all of this came together.  He had started his blog that year and had met Mark Surguy of Pinsent Masons, a Birmingham law firm, at a London IQPC e-Disclosure conference. Surguy invited Chris to speak to the Mercantile Court User Group at the Birmingham Civil Justice Centre, with the bait that the court had a new judge whose goal was “to create an efficient court that people wanted to litigate in”.  That judge was HHJ Simon Brown QC who has become  well-known for his case management of electronic disclosure in the context of the UK Civil Procedure Rules.  Note:  Chris often writes and speaks about these issues in tandem with Judge Brown.

As things developed, Chris began to write more and more — which is compelling but doesn’t pay the mortgage.  At that point he met Ian Manning (then with FoxData Ltd, now with Raposa Consulting, one of  the UK’s leading computer forensics, data recovery companies).  Manning offered to sponsor Chris’s work . 

And with that, Chris had his first sponsor and he was off to the races.  The e-Disclosure Information Project has become a full-time occupation and is supported by the sponsorship of the companies whose logos appear on his blog, a list of sterling companies and an impressive testimony to his stature in the e-disclosure field.

Chris has become a definitive authority on UK and European e-disclosure and his blog is read far and wide.  He has been a featured speaker or panelist at numerous e-disclosure conferences and events including LegalTech in New York, CEIC in Orlando, Ark Group in London and Sydney as well as IQPC’s well-known May London conference. (click here for a backlist of those conferences and events).

And he is credited by many in the e-discovery  world with organizing the best judges’ panel e-discovery we’ve ever seen at the May 2009 “IQPC Information Retention and E-Discovery Management Conference” in London:  the two leading US and the two leading UK e-discovery judges discussing developments in the two jurisdictions.  For full analysis of that event see Chris’ post click here.

Next:  his upcoming participation at the Masters Conference in Washington, DC on October 13^th and 14^th (click here) where the All-Star-Cast of judges cited above reconvenes, followed by the LexisNexis E-Discovery & Digital Forensics Conference in Singapore on October 21st and 22nd (click here).

But the “crown jewel” is the Thompson Reuters 5^th Annual E-Disclosure Forum in London on November 13^th  (click here) which brings him together (again) with e-discovery luminaries George Socha and Browning Marean, plus HHJ Simon Brown, Senior Master Whitaker, Ian Montague of Pfizer, and others .  It is the most comprehensive one-day conference on cross-border developments in data transfer, data security, privacy and forms of production, managing the costs of eDisclosure, etc.

We’ll be at the Masters Conference and the Thompson Reuters 5^th Annual E-Disclosure Forum and bring you all the details.

On August 19, 2009, the French Data Protection Agency (also known as the “CNIL”) released a new opinion (the “Opinion”) on the transfer of personal data from France to a jurisdiction outside of Europe. The Opinion is noteworthy for describing how personal data can be transferred from France to the United States pursuant to U.S. discovery proceedings.

The Opinion stresses that it does not cover proceedings originating from U.S. governmental requests, such as requests by the Security Exchange Commission (SEC) or the Federal Trade Commission (FTC).   The issue of international discovery transfers has been a particularly thorny and complex one, as it has often pitted the legal obligations of an entity in the United States to comply with U.S. discovery requirements against its obligations to comply with EU data protection laws, where it holds personal data on individuals located within the EU.

For more from the Proskauer Rose Privacy Law blog click here.

The summer and Labor Day holidays are over, and so we are off.

The ILTA conference (our coverage is here) held two weeks ago was an eye-opener on new trend lines, jobs for contract attorneys, etc. — especially the amount of Federal government work in the pipeline and the surge in work in Europe.  We’ll have more on ILTA later in this post.   First, some general comments on the contract attorney market.

1.   In many areas of the country the contract attorney/document review market seems to have broken open.  We hesitate to say “exploded” but as Gabe Acevedo of the über e-discovery site Gabe’s Guide said “in the old days it would be an uptick.  But in this lousy economy, in this market call it exploded.”

2.  We have posted 87 projects/positions in the last 2 weeks across all 70+ job lists, most being in the South and the West. 

3.   But DC is alive.  In the past 2+ weeks we have seen new projects or ramp ups from Covington and from Crowell (two law firms that do direct hire) plus projects from De Novo, Firm Advice, Hudson, Kelly Law, Lexolution, Palmer, Pat Taylor, Phase Legal, Special Counsel, and Update.  And Fulbright & Jaworski has a monster going: 120+ attorneys in two locations.

4.   NYC has remained fairily moribund.  The subprime and credit-crisis related work we all expected to hit DC and NYC seems to have avoided both markets for the most part although we count a combined 4 “financial crisis related” doc reviews in DC and NYC.  (We use feedback from Posse List members, Kevin LaCroix’s site http://www.dandodiary.com/ and a few other sites to track the progress of cases and their location, and determine which law firms are handling them).

5.   A good portion of the subprime and credit crisis-related doc review work seems to be centered in the Atlanta area, the Carolinas and the Midwest — lower cost regions.  As we have mentioned before, farmshoring has been gaining favor (click here).

6.  That doesn’t discount the projects that have scuppered off to India.  We have received feedback from our India-based Posse List members who work for LPOs (as we have previously reported scores of U.S. attorneys have been hired by LPOs as project managers).   They report 3-4 “credit crisis-related” projects.   We try to rectify those numbers with various media reports (many of dubious validity because they tend to be press releases by LPOs).  But admittedly we do not have full coverage in India.  Of the 85+ Posse List members based in India only about 10-15 report in on a regular basis and they cover only 5 LPOs and there are lots of LPOs out there.

     Note: the summer issue of ACC Docket, the magazine of the Association of Corporate Counsel, did a series on outsourcing and Indian LPOs — the good, the bad, the problems.  We hope to provide a detailed post this month with links to the issue as we did on the ACC Docket series on document review (click here).

7.    But on the bright side for DC and NYC (and London and Brussels) is that the increase in economic tensions/issues and the increase in high-profile scandals has lead to a rise in government data requests, compliance audits and investigations from both a state and federal level.  We have chronicled, among other investigations: the DOJ investigation of DTCC in the credit default swap probe; the EU target investigations of the energy, tech, and drug markets (the EU has stepped up antitrust enforcement in the technology, energy, drug and transportation sectors); the LCD makers cartel investigation and the DOJ review of the telecom industry.

8.   Foreign language projects still rule the roost with the FCPA and IP litigation cases dominating, and they are all over the market: DC, LA, NYC, Philly, the South, and West.  Europe postings have also increased.  We have posted 21 foreign language projects in the last 3 weeks.   Many are part of the rising number of FCPA follow-on civil lawsuits, projects we also track through Kevin LaCroix’s site (cited above).

9.    Lastly, in answer to your many questions, our job listings have expanded because our membership includes a great number of EDD vendors, in-house legal departments, and other entities who have posted projects and positions that benefit from a legal background.  In the last few weeks we have posted a number of project management and client services positions (not responsible for generating revenue) where the vendor has sought a contract attorney to manage a project (legal and non-legal) and handle the inevitable issues that arise, or, for instance, manage the contract administration function.  These have been with law firms, litigation support providers, corporate legal departments and corporate finance departments.

Some housekeeping:

a.  To subscribe to our job lists go here:  http://theposselist.com/mailman/listinfo   The master Posse List (called “Distribution” on that link) normally posts only articles of interest, trend reports, webinars/webcasts, etc.  If a project/position is national in scope or permits telecommuting then we will post on the “Distribution” list.

b.  starting this week, foreign language projects will post ONLY to the master foreign language listserv and the respective language listserv and will not post to the respective city/region listserv.  To subscribe to the Master Foreign Language listserv go here:  http://theposselist.com/mailman/listinfo/foreignlang_theposselist.com

We are still building out the individual language listservs.  So far we have:

Arabic

Chinese

Dutch

French

German

Greek

Hindi.Punjabi

Japanese

Portuguese

Spanish. 

We will be adding more and if you are on the Master Foreign Language list you will be notified what languages have been added.

Now, on to ILTA.   There have been some good blog posts (besides our own) which summarized the conference and we have them below.  But a few points from the conference that affect contract attorneys:

1.   Our  favorite “mantra” which we heard continually: greater use of contract attorneys by corporations, a trend we reported on earlier this year (click here) and recently confirmed by the Sapire Search Group (click here) and which Rees Morrison has covered numerous times on his blog (click here).  It has been reflected in our job postings.

     Note:  this is a topic area at the ACC annual meeting in October (http://am.acc.com) which we will be covering so we’ll have more to report.

2.   The march of EDD vendors into document review continues, the accelerating trend of corporations by-passing law firms and going directly to vendors.  Many EDD vendors are trying to move more into the “right side” of the EDRM as EMC has done (click here).  

3.   More important to the EDD vendors success is the continuing move of EDD directly into corporations and the (incessant) mantra of “early case assessment early case assessment early case assessment …” which is critical, of course, to the corporate client.  It’s the EDD vendors that can do this, not the regular staffing agencies, although many staffing agencies have paired up with EDD vendors to provide A-to-Z service (for example The Dine Group and Huron Consulting).  The reason is obvious:  the better you assess and plan, the lower the volume of data to review – and review is the biggest cost in the entire process.   Companies are desperate to save a buck or two, so they’ll be more likely to secure more ownership over the e-discovery process to enhance control and reduce costs.  Leveraging in-house technologies, internal legal teams will deploy early case assessment methodologies and data reduction strategies.

4.   And there is the Europe-Asia factor.  As litigation and arbitration cases are increasingly becoming global in nature, and data may come from a variety of countries, there is a mixture of legislative jurisdictions involved as well as a myriad of languages and cultures – including vast differences in the maturity of attitudes towards e-discovery.   With cross-border cases ever more frequent, the process of disclosure grows more complex. Documents created in any country and any language can be, and increasingly are, relevant to lawsuits, investigations or regulatory matters. 

     Note:  Much of the European work has been captured by EDD vendors and agencies with “boots on the ground” in Europe such as Hudson Legal London, Merrill Brink, Trilantic, and Outindex.  Much of this is attributable to the use of blocking statutes and the impact of European privacy laws which we have chronicled on our Europe page (click here). 

5.       Which is why … taking points 2, 3 and 4 above … you have the one-stop-shop-solution that corporations have been seeking and why companies like Catalyst Respository Systems,  eMag Solutions, EMC, eTERA Consulting,  FTI Consulting, Huron Consulting, and Merrill Brink have made such inroads.

6.   But “The Big Enchilada” discussed was Federal government contract work.  There is a flood of work from the FDIC, SEC, Treasury, etc. …  standard financial document review/processing contracts … hitting the FBO (see our background post by clicking here).

Many staffing agencies bid on and get these contracts (for example Pat Taylor and Associates in D.C. which is GSA qualified and has placed many contract attorneys on Federal projects).  But the EDD vendors are looking for the the large dollar projects such as, for example, Mega 3 contracts (competitively awarded contracts with the DOJ) that are for providing information technology and automated litigation support services to wide range of Federal government agencies.  These contracts go into the millions of dollars.  Scores of EDD vendors (and a growing number of regular staffing agencies) are now GSA Schedule qualified and bid on these contracts and many are setting up special teams for these projects which include contract attorneys.   We have posted a large number on our job lists.

7.   Another growth area:  the use of contract attorneys in the area of governance, risk and compliance (GRC) markets.  This is not a “new new thing” and has been chronicled for the last year and half (see for example here) but it was given heavy emphasis at ILTA.  There will be/has been a convergence of e-discovery and GRC technology and management and it is reshaping the industry.  Many contract attorneys are employed in these markets already.  Given the rate of technology shown at ILTA, and discussions we had with vendors, most e-discovery and GRC solutions will be cloud based in 10 years and corporations are moving toward solutions. 

In the U.S. and Europe one of the big combinations covering this area is eDiscovery Solutions Group, a major player in the GRC market, and Trilantic, a leading European-based e-discovery company.  See their recent press release here.  Another significant player is Fios Inc.

    Note:  we’ll discuss the GRC area is area in more detail in the coming weeks, most likely after the Association of Corporate Counsel annual meeting in Boston which we have been invited to attend.  The areas of governance, risk and compliance are major topics at this year’s event.

NOTE:   any and all projects or positions that we have received relating to points 1 through 7 immediately above have been posted and will continue to be posted to the appropriate Posse List job listserv.  In answer to your questions, there is no one geographic area where these jobs are.  We have posted them all over.  And there are scores of companies staffing in all of these areas.  We have only mentioned ones we interviewed at ILTA or in our D.C. office.

Now, for some good coverage/analysis of ILTA we recommend:

—  Chris Dale blog Edisclosure Information Project which you can access here and here.      

—  Ron Friedmann’s blog Prism Legal whch you can access here.

—  The ILTA/InsideLegal.com Technology Purchasing Survey which you can access here

—   The Above and Beyond KM blog which you can access here

Many of these topics deserve further discussion and analysis and we will attempt that in the coming weeks. 

And rather than bombard you daily with posts and articles about e-discovery and/or the contract attorney market, check our Twitter feed (top of the right hand column) or if you have a Twitter account follow us here:  www.twitter.com/PosseList

There is an expanding need for temporary attorneys across Europe as many European companies and law firms have been adopting the use of temporary workers on a wider basis, as well as many U.S. companies and law firms which have applied the known U.S. model to their European operations.  Much of this is attributable to the use of blocking statutes and the impact of European privacy laws (for explanations click here).   Most projects are more appropriate for attorneys based in Europe or U.S. attorneys that have a “home base” in one of the busier markets (see paragraph 10 below).

These projects are often suitable for sole practioners based in Europe (many are special projects seeking EU law expertise) as well as stagiaires who have done a stint with any of the EU institutions

The first preference is always EU-based/EU admitted attorneys with multi-language ability.

A few general points on European project work:

1.  Most of the projects require experience in electronic discovery and require familiarity with various electronic document review software (for background click here). 

2.  Complete fluency in a European language in addition to English is often required although there are projects where English may be the only language in a document review such as UK projects.   

3.  Due to work permit issues, all European-based projects require that you be a national of one of the 27 EU countries or hold nationality with an EEC country, or be qualified to work via a work permit or otherwise.   

4.   If you are a licensed U.S. attorney who has passed the QLTT examination you will be able to work on any UK based project, and you may be able to work on projects on the Continent depending on the country’s rules.

5.   Some agencies are incorporated in several EU jurisdictions.  As a result, they often obtain work permits for select non-EU candidates who have an extensive background in a subject matter a client needs.  However, you must also have the language described in paragraph 2 above. 

6.   If you are a licensed U.S. attorney who has passed the QLTT examination and you are a European national, you will also have the right to apply to practice under the provisions of the Lawyer’s Directive in all EU member States.

7.   For most UK projects you will have the usual payroll/tax deduction structure.  However on the Continent you are often employed as a full “independent consultant” and are therefore paid gross rates (no tax deductions) and are responsible for your own taxes.  Most attorneys have a VAT number of and/or an attorney registration number.

8.    In almost all cases now, due to the growing base of local contract attorneys, projects do not provide housing/per diems although there are some projects that do provide housing and per diems. 

9.   As regards hourly rates, in the past year we have seen hourly rates between €25 to €40 for most projects (₤20 to ₤25 in the UK) depending on the nature of the project.   In many cases, a work week is 50 hours before OT takes effect, rather than after 40 hours.  

10.   The majority of project work is in London and Brussels, but Amsterdam, Frankfurt, Luxembourg, and Paris have all seen an increasing number of projects.

We have launched the Asia-Pacific Posse List which will include our Asia job listserv (to get on the Asian-Pacific job list click here) and this page.   Our focus will be the legal markets in Australia, China, Hong Kong,  Japan and Singapore but we will include other Asian locations as they develop.

This page is sponsored by our strategic partner in Asia, CCH Workflow Solutions.  You can learn more about CCH Workflow Solutions in some articles we have linked at the top of this column as well as by clicking their logo in the upper right hand corner of this page.

We hope this page will be a storehouse of information on Asian-Pacific e-discovery, legal news affecting the contract attorney market, and other items of interest to this area.

As we have indicated in previous posts (click here) e-discovery work, computer forensics and contract attorney work is growing significantly in Asia, along the same lines as we have seen in Europe (click here).

A few basics on projects in the Asia-Pacific area:

1. There is a small but growing contract attorney community in Asia in several countries and we have been placing Posse List members on projects in Australia (the Rio Tinto/BHP merger project for instance), China (mostly IP work) and Japan (a mix of work)
2. Projects can be for U.S., European or Asian entities, both law firms and corporations.
3. A law degree will be required in almost all cases.  However, normally there is no restriction on where the degree is from (U.S., Europe, Asia) and in most cases bar admission is not a requirement.
4. But there is also a growing need for expert translators who need not have legal training.
5. Every project will require fluency in at least one Asian language and a good knowledge of English.
6. In many cases these are not your normal document reviews so pay rates vary.  One imminent project (within the next 2 weeks) will be based in China and they will need contract patent attorneys with contract drafting skills in Chinese and a conversational level of English.   Another project, in Singapore, will also be an IP project but with multi-tasks such as document review, drafting, interpretation, etc.   A third project, in Japan, will be closer to a straight document review for a U.S. law firm.
7. As many U.S. and EU EDD vendors move into the Asia-Pacific area, there is a growing need for
8. In some cases the client will want Asian-Pacific based attorneys, and in others cases there will be the opportunity to go to Asia, work there for awhile, and then finish the project in Europe or the U.S.
9. Per diems and travel expenses will vary per project depending on demand and need, and whether locally based attorneys are required.

If Asian projects are of interest, register on the Asia list (click here) and if you have friends/colleagues in Asia who might want to know about this work, please forward a link to this page and have them register and spread the word.

If you have any questions, please email us at: manager@theposselist.com

ILSLC (Part 2:  wrap-up)

We want to finish our review of last week’s International Legal Support Leaders Conference (ILSLC) with a focus on U.S. foreign language document reviews and document reviews outside the U.S. (for our others posts on the ILSLC click here).

As we have indicated in previous posts the last few months, foreign language document reviews have dominated the U.S. contract attorney market due to the continuing increase in FCPA cases which explains the stream of work from firms such as Baker & McKenzie and Kirkland & Ellis which have strong FCPA practices, and now more work from Arnold & Porter which recently added a major FCPA partner.  Add to this mix the continuing stream of patent litigation and cross-border M&A work such as the Sanofi-Aventis/Bristol-Meyers merger (click here) and cross-border litigation such as the Societe Generale class actions (click here).  

And an even bigger factor:   other countries are starting to enforce laws similar to the FCPA, and international law enforcement agencies are cooperating more than ever before (click here). 

Another ingredient to the mix: the step-up in DG COMP investigations in Europe (click here, here and here). 

Result?  Lots of foreign language work for contract attorneys, and lots of work for e-discovery companies that handle foreign language document collection, processing and review.   As we indicated in our “Trends” review last December (click here),  staffing agencies still do the larger percentage of foreign language document review.  But e-discovery companies have agressively moved into this market by teaming with staffing agencies.   The IT/litigation support teams at law firms we have visited continue to tell us (as they did in December when we made our rounds) that it makes much more sense to have the e-discovery companies also handle the “back end” – the review itself — since the evolution of the technology makes it a natural progression.    Why use two vendors when you can use one?  This has impacted the contract attorney job market as more and more e-discovery companies build out their staffing relationships and staffing units.

And one competitive “game changer” might be the entry of Merrill Brink (a division of Merrill Corp.) into the document review market.  Contract atorneys know them because of their e-discovery/case management software  Lextranet.   It is one of the largest language translation/interpretation company in the U.S. and already offers an array of services to almost every AmJur 100 firm such as deposition services, trial prep services, large case management, etc.  But as several law firms told us, their extensive legal translation and interpretation services for international litigation, intellectual property, patents, and mergers and acquisitions – the “biggies” for the contract attorney industry – make the actual staffing of document reviews a natural fit.    We hope to meet with them in the coming weeks and get more details.

U.S. foreign language document reviews

At a seminar concerning the foreign language component of e-discovery and document review, we heard from experts Lillian Clementi, Managing Principal of Lingua Legal; Todd Haley, Vice President of E-Discovery at ePIC; and Conrad Jacoby, founder of efficientEDD as they expounded on the “how tos” of these reviews.

As Clementi and Haley pointed out, the common refer­ence point is Unicode — the buzz word on the lips of every e-discovery provider and in seemingly every press release of every litigation software and service provider.

We’ll skip the “tech talk” and just tell you that:

• Unicode is the de facto standard for translating characters and symbols of written language — both English and other languages — into numerical values for processing on computers.

•Software that doesn’t support Unicode may work on Unicode documents in English, but it most likely won’t work on documents in other languages.

•Using noncompliant software on Unicode documents may cause incorrect display of non-Latin characters and sometimes data-file corruption.

That last point is crucial.  If, for example, Japanese characters cause the review tool to omit documents from search results or improperly display them during a privilege review, an inadvertent disclosure could result.  Further, a noncompliant tool can mangle Unicode characters when exporting documents for production by substituting symbols for unrecognized characters because the software didn’t know how to handle them.

So, as the panelists emphasized, it is prudent to inquire about the specific Unicode capabilities of your software vendors and demand similar due diligence from service providers.

Is Unicode compliance the same thing as universal language support?  No.  Unicode compliance means only that the software has the ability to handle documents in languages that include characters beyond the A-Z scheme used in the Latin alphabet. The complexities of searching and reviewing a multi­lingual document collection are numerous and may require advanced functionality offered in very few of the available litigation tools.

Here are the other buzzwords/concepts to know:

Compounding: Some languages, including German, Dutch, Swedish and Finnish, use compound nouns that may complicate searching. For example, without the proper search syntax, a search based on the German word Kontaktlinse (contact lens) would miss a document that included the word Kontaktlinsenverträglich­keitstest (contact lens compatibility test).  Specialized tools exist to facilitate searching individual components of compound nouns, but few litigation support tools have incorporated such technology.

Tokenization: To facilitate rapid searching on large document collections, search tools use a tokenization process to identify discrete words and add them to a searchable index. For most Asian lan­guages — which use very little punctuation, don’t insert spaces between all words, and can have the meaning of characters change based on context —the process for breaking down documents into individual words can be very complex and require language-specific dictionaries. Again, few litigation tools are sophisticated enough to accommodate the idiosyncrasies of some languages.

Canonicalization: In most languages, there are multiple ways to express a single concept. Most search engines are good at handling the most common form of this in English, the synonym. Other languages, however, have more complex systems for representing concepts in multiple ways. For example, the meaning behind a Japanese ideogram can also be “spelled out” in one of several different kana character sets or transliterated phonetically into the Latin alphabet using the romaji system.  Problems also arise from languages where nouns can take on prefixes or suffixes based on the context in which they are used. For example, in Arabic the word for “my apple” and “your apple” are represented by distinctly different canonical forms with the same fundamental meaning.

And a big issue: what role does automated document translation play in discovery?  It is not an “either/or” situation.  You need a blended approach.  All the panelists recommended using search experts fluent in the lan­guages (such as Clementi’s firm Lingua Legal) present in the document collection.  It is reasonable for certain phases of the process such as creating search-term lists for culling, reviewing documents, and final quality control. But having a translator “shadowing” everyone on the litigation team to translate every search isn’t always practical, especially if more than one foreign language is involved.

Machine translation can help. Although notoriously inaccurate compared to a manual process, less-expensive machine translation still can assist litigators in situations where it is impractical to have a human translator standing at the ready. Although it is not advisable to conclude definitively that there are no relevant documents based on only a search of machine-translated versions of documents, it is quite reasonable to use automated translations to make first-pass culling decisions.

Overall, in dealing with foreign languages in discovery, it is important to take a proactive stance, be knowledgeable about the complexities, and ask the right questions of vendors early in the process to avoid costly mistakes in the discovery management process.

Litigation without borders: global e-discovery

And finally, an issue near and dear to our heart:  document reviews in Europe and Asia.  The trends we discussed at the beginning of this post – continuing increase in FCPA cases, continuing stream of patent litigation and cross-border M&A work, other countries are starting to enforce laws similar to the FCPA — has led to a surge in document reviews in Europe and provided work for European based Posse List members through such companies as Project Counsel,  and now also Asia (a member of The Posse List leaves for Asia this weekend as part of a trade delegation on Asian e-discovery).   It is also the reason why law firms and corporations have begun asking staffing agencies and e-discovery companies if they can provide “enterprise wide” e-discovery solutions: managing and/or staffing projects for a law firm or corporation in any of its offices across the globe.  In our trip to NYC this week that was the “new big thing” discussed at all the law firms we met.

An ILSLC panel focused on managing cross-border discovery was composed of three heavy-weights in this part of the industry:  Scott Merrick, International Marketing Director of LDM Global; Nigel Murray, Managing Director of Trilantic; and John Tredennick, CEO of Catalyst. 

If you operate internationally, you must be cognizant not only of a patchwork of laws and regulations-many of which could conflict-but also of cultural differences that affect your response to requests for electronic information.  The initial stage in any litigation or regulatory effort is to ensure preservation of relevant materials. But an international scope makes this far more complicated than just issuing a directive to employees to stop deleting e-mails or drafted documents. You need to know where information is located, how it is stored, when it is backed up, and whether backups are rotated or destroyed. Automatic deletion or rotation policies mean that if you do nothing, you may lose files that are subject to a regulatory or litigation request.

Data collection also is far more complicated in an international context than in a purely domestic one. Local laws may prohibit an employer from searching employee e-mail files. As a cultural matter, most Americans are accustomed to the idea that an employee’s computer and e-mail account belong to the employer. Outside of the U.S., the cultural understanding is frequently just the opposite: An employee’s computer and e-mail account are considered private, and it may be a criminal offense to invade that privacy. Collection of data outside the U.S. may be seen as coercion by an employer, and it may lead to labor union grievances or complaints.

Once the information is collected, getting it reviewed and produced to a U.S. regulator or litigant is also no simple matter.  Data privacy and blocking statutes in Europe, Asia and South America may forbid the transfer of personal data outside of their borders to an “unprotected” jurisdiction like the United States-and personal data include names, e-mail addresses and office phone numbers. Indeed, special procedures may be required before individuals outside a company-including the company’s outside counsel-may review the data.  And local laws may dictate that only data specifically responsive to a request may be exported, requiring counsel to review materials locally rather than shipping them to the U.S. to one centralized location, as is normally done in U.S. litigation

Do not expect, however, any sympathy from U.S. regulators or plaintiffs’ lawyers.  U.S. regulators are skeptical of data protection laws and may take the view that international companies hide behind them to avoid cooperating with the regulators’ investigations. U.S. courts may not be more understanding. The Supreme Court has held that U.S. discovery rules presumptively apply in civil litigation involving an international company, even if producing data in response to a discovery request would be unlawful in the international company’s host jurisdiction.

These are some of the issues that will arise when an international company has to manage a conflict. How should you resolve these issues and to whom should you turn to get the process started?   You need to partner with a local vendor who understands any local legal requirements and has the technical ability to help you meet them. Alternatively, in selecting your forensic technology vendor, you should consider whether it has an established presence in the foreign country involved in the crisis.   For instance, in Europe, Trilantic is the “go to” company with its pan-European operations base.

For instance, if you need to collect e-mail from your France-based sales and marketing staff in order to respond to the SEC inquiry, you will need to ensure you do not violate France’s data protection law in doing so. This may mean engaging a local law firm to analyze any intra-company agreements between your U.S.-based parent and the French subsidiary to learn what foreign data transfers may already be permitted. In addition, you may need to engage an EU-based forensic technology vendor to host any French e-mails you collect in a location inside the European Union until you determine they can be transferred to the SEC in the United States.  Alternatively, some U.S.-based forensic technology vendors are “safe harbor” companies. This means the U.S. Department of Commerce has certified that they meet EU data protection requirements and would be able receive transfers of data without violating French law. This would allow you to maintain and analyze any data in the United States before turning it over to the SEC.

And, assume nothing and document everything.  For better or for worse, U.S.-style litigation and internal investigations are largely alien to non-U.S. organizations.   Most likely foreign managers have never before participated in a forensic collection.  Preserve and document the chain of custody.

For a nice overview of the European issues, Ken Rashbaum (a Director at Fios Consulting) has posted a piece giving you background on the Sedona Conference framework for analysis of cross-border discovery and the Article 29 Working Party of the European Commission (click here).   Ken is a major presenter at The Sedona Conference on Cross-Border eDiscovery & Data Privacy in Barcelona, Spain this June 10th and 11th.  The Posse List is attending that conference and we will be posting reports.