12 November 2009

The presentation was titled Information Everywhere: Understanding New Technologies and Coping With New Problems and was presented by Judge James Francis (U.S. Magistrate Judge in the Southern District of New York), Anne Kershaw (founder of A. Kershaw, P.C.), Thomas Morrissey (responsible for the development and implementation of technology supporting the Office of the General Counsel at Purdue Pharma) and George Rudoy (Director of Global Practice Technology & Information Services at Shearman & Sterling LLP).

They covered virtualization, unified communications and cloud computing.  First up:  unified communications.

Unified communications (UC) is the integration of real-time communication services such as instant messaging (chat), presence information, IP telephony, video conferencing, call control and speech recognition with non real-time communication services such as unified messaging (integrated voicemail, e-mail, SMS and fax).

More and more corporations are moving to UC and it will present/is presenting enormous e-discovery nightmares.  First, some basics:

UC is not a single product, but a set of products that provides a consistent unified user interface and user experience across multiple devices and media types.  UC refers to a trend to offer “business process integration” which means (basically) a process to simplify and integrate all forms of communications in a company to optimize business processes, and manage flows.

So, for discovery, you have EVERYTHING in one place.  It kind of … kind of … makes search easier.  You have the whole story in one spot.  Or as Anne Kershaw said it is like the old days when you went to the file cabinet and went through the correspondence in a file and you said “oh, I see, he wrote this, then she wrote that, and he said this …”

UC allows an individual to send a message on one medium and receive on another. It makes it possible to easily transfer any activity or message to another medium. For example, one can receive a voice mail message and choose to access it through email or a cell phone. If the sender is online according to the presence information and currently accepts calls, the response can be sent immediately through text chat or video call.

The difference between unified communications and unified messaging is this:  unified communications refers to both real-time and non-realtime delivery of communications, where unified messaging systems culls messages from non-realtime sources.

For business, UC it is a no brainer:  it represents a concept where multiple modes of business communications can be seamlessly integrated.  UC integrates all the systems that an employee might already be using and helps those systems work together in real time. For example, unified communications technology could allow a user to seamlessly collaborate with another person on a project, even if the two users are in separate locations. The user could quickly locate the necessary person by accessing an interactive directory, engage in a text messaging session, and then escalate the session to a voice call, or even a video call – all within minutes. In another example, an employee receives a call from a customer who wants answers. Unified communications could enable that worker to access a real-time list of available expert colleagues, then make a call that would reach the necessary person, enabling the employee to answer the customer faster, and eliminating rounds of back-and-forth emails and phone-tag.

Note: the panel provided a video from Microsoft (not to sell Microsoft but to show how this all works) and you can access these videos by clicking here.

However … the e-discovery concerns.  And will the e-discovery concerns slow adoption as companies learn that the move away from traditional phone service includes the conversion of voice mails into e-mail in the form of wave (audio) files.

In the event of litigation, they are discoverable in either case, but in electronic form these audio files must be converted to text because wave files are difficult to search because as audio files there is no actual text information to pull out the document during a search.

Failing a completely accurate technology option, the best protection is a sound business process for the handling of voice mails in any form. All the panel recommended handling voice mails on wave files as part of a company’s document retention (and deletion) policy.

And … like any document, voice mails can provide the smoking gun that determines the outcome of a lawsuit.

The panel did not believe there was an increased legal risk by going to unified communications (companies are storing more voice mail as a result of the conversion to unified communications) but since traditional voice mail already is discoverable, converting voice mail to electronic form makes files more accessible to more people.  And it also makes them easier to store and move around, if not search.

But it triggers issues surrounding legal holds and the “duty to preserve” since these concepts/principles applies to all relevant existing or subsequently created data.  As one panelist said, upon issuance of a litigation hold notice or on receipt of a discovery request a company would have to suspend its retention policy and halt destruction of potentially all voice messages on the voicemail server.  Each message would have to be reviewed for a relevance determination.  Prohibitively time consuming and expensive.  Maybe the relevance of the message may be identifiable based on the context of the metadata regarding the sender, recipient and date/time received? 

A complex, complex area.   But regardless of the digital technology, it all must be integrated in a data retention/deletion policy.

Bottom line:  unified communications promises to pave the way for more collaborative business practices and greater productivity, but it also means the general counsel and his/her ESI manager have another set of issues.  Because while while real time communications like IM, VolP, web and audio conferencing make business workflow easier it also brings inherent risks including security, compliance and e-discovery.

Day 2 had some interesting events and some interesting technologies on the exhibitor floor so herein our run down.

The Greening Your Career networking breakfast

Day 2 kicked off with a breakfast hosted by Monica Bay (editor of Law Technology News) and featured a panel of experts in an upbeat discussion for members of the legal community who may be looking for jobs.

Monica welcomed all of the jobseekers, speakers, and vendors to the breakfast.  She introduced Chris Braun who announced the launching of a new website for public interest jobs (click here) which is free to both candidates and posters. 

There were 10 tables set up, each for 10 people.  One person at each table was a selected speaker, who spoke to that table with general information and then went around to interact with each person in sequence.  This evolved into a group networking event with exchanging of business cards and some one-on-one conversations.

Integreon’s Babs Deacon (Director of Consulting, Data Analytics) shared her personal story about her own recent job search that lead to her position with Integreon.  It was all about networking networking networking -  something Posse List members have been doing with great success by trolling the vendor shows.

At The Posse List table was Tom Collins, former owner of Juris and author of Mark Rollins and the Rainmaker (a murder mystery) and, of the other nine people, four were actively seeking work, one represented a staffing agency, one authored a legal blog and offered advice, one maintained a massive online legal directory of attorneys and law firms (bigger than Martindale-Hubbell), and one was a techie.

Of note is that one of the job seekers scored with the staffing agency rep at the table and is being considered for a project management position in San Francisco, close to where he lives.  He previously worked for an e-discovery company and had significant review experience, including team leader.  So, with one potential hire at our table, the breakfast worked!

Kudos to Monica Bay for fulfilling a real need.  All the participating job-seekers at the breakfast who were not registered at LegalTech were given comp passes for the day, so they could attend sessions, visit the exhibitors, and network.

Keynote Presentation: Ethics and E-discovery

The keynote presentation was “The Rule of Law in the Wild West: Ethics & E-Discovery” and the panel was composed of Carol Basri (Corporate Lawyering Group LLC and Professor at the University of Pennsylvania), Judge Andrew Peck (U.S. Federal Court, Southern District), Judge Dave Waxse (U.S. Federal District Court, District of Kansas) and Tom Allman (fromr SVP and General Counsel of BASF and an editor of the Sedona Conference Priciples).

Some takeaways from the panel discussion:

         From Carole Basri

         Ethics is the hallmark of our era.  But can we get it together with ethics?  The area of ethics in e-discovery is a   stepchild in the legal profession.

         The Chief Technology Officer is a new and emerging position in companies today.  Among other things the CTO can be someone with custody of the documents who knows how the system works and can archive the relevant documents and show a chain of custody.  We need business people to buy into this.  Critical, confidential, privileged documents cannot just be spread throughout the organization — rather, they need to be disseminated on a need to know basis.

          From Judge Waxse

         You need to have competent people in place.  Lawyers can be held ethically responsible for their employees and third parties (Rule 1 of Code of Professional Conduct) and they cannot say “it’s not my problem”.

         Note:  there are over 14,000 state laws related to record retention.  You need lists of what should be retained and what does not need to be retained.

         It is important for lawyers to get into detail.  Upfront discussion is needed.  And, when you get to court, do not be afraid to tell the court that you don’t know something.         And yes, you always have to look at the economics of the case.  The discovery should be proportional to the value of the case.  It is incumbent on counsel to make a pitch to the court on the value of the case.  Of course, if there is agreement with the other side, the court will not get involved.

       From Judge Peck

        If lawyers are cooperating, there is no problem and the court will not get involved.   Otherwise, if there is spoliation for instance, the court will look to see if there is a good document retention policy and effective training of employees.  It is important to get rid of junk if there is no possibility of litigation.  Use the test of “is litigation reasonably anticipated” for litigation hold purposes.

         We are seeing too many “drive-by” meet and confers.   We strongly urge preparation.  Know your client’s documentation system and come prepared to talk in detail.  Bring the IT folks with you.  It is important to carefully select your custodians — do not go for everyone in a department.  A one time meet and confer does not work — it has to be an iterative process.  Be cooperative.  You can be a vigorous advocate while cooperating with the other side.  Also note that if you fail to produce something, the other side will assume that you must be hiding something.

         Inadvertent production of documents:  this is the responsibility of counsel under the duty of client confidentiality.  However, jurisdictions vary on the duty of counsel to scrub the metadata.  It is best to ask for an agreement and, based on the agreement, get a court order.

       From Tom Allman

       A single retention policy?  What a lot of nonsense.  I completely disagree. It is ludicrous to have a single retention policy.  Instead what is needed is a corporate culture policy.  Have a compliance culture.  Each functional unit needs to make retention decisions for that unit. It is important that compliance (the culture of ethics) is customized.  

       Distinguish between structured and unstructured information.  Where you have problems is with informally produced information, like emails, spreadsheets and .pst files.

       The best thing is to agree on the limits of discovery.  Make a distinction between accessible and inaccessible documents.

Adopting Web 2.0 Technology

There was a great interactive panel on social media (which the Twitter panel should have used, quite frankly) that covered the infamous “Web 2.0″ phrase used so often in legal circles.  The panel addressed the innovations in web technology and what it means for today’s legal practice and how can lawyers take advantage of them.

Our take aways from the session:

Social media in general:  John Lipsey says Ignoring Social Media is not an option.   Law firms/corporations should form social media teams to guide executives on social media policy.  Real time info is direct, frank, immediate and helpful.  Social media doesn’t replace face to face meeting, it’s just the first step now.   Social media is about building relationships.  Blogs and Twitter give you your own media channel,  where everyone has a voice.  Mark Beese discussed the importance of branding.  Using Web 2.0 is important next step in branding.   Many lawyers attending believe that online networks will change the law practice/law business.

Blogging:  if using blog and twitter as professional tool give personal info, but don’t be too personal.  Look for a good platform when setting up a blog.  Be careful when blogging.  Find something no one else is covering, people will want to follow you.  And Give credit where credit is due when blogging.  Don’t use blogging as a personal advertisement, don’t do a ghost writer.  “When blogging be yourself…but don’t be yourself  or be a jerk” D avid Gottlieb suggests.  And accoridng to Mark Beese, Google seems to love blogs.

Twitter:  Twitter as a search technology is an incredible tool: what are they saying about you, your clients, your company.   You don’t have to just follow people you can follow events, client names, conferences and relevant seach terms.    Twitter allows people to get immediate responses back, it’s like face to face, real time web is evolving quickly.  Twitter has changed, will keep changing the way we communicate with each other.

LinkedIn:  LinkedIn groups are a great marketing tool, with a great audience as an opt-in group.  Build your network in LinkedIn,  use recommendations to build credibility,  show personal interest.  Participate in conversations.  It is a social media platform for consistent message.  Multiple channels, building your message over time,  to a highly targeted audience.  It leads to intimacy.

Technologies

There was the usual forest of vendors/technologies at the show but there were a few standouts: 

Fios

Fios unveiled its “Compliant Disposition Methodology” which is designed to meet the challenges of dealing with ESI before litigation through:  (1) assessing what is required; (2) analyzing your existing affairs/policies; (3) establishing a decision framework; (4) building your business case/getting the right staff and technology; and (5) implementing a plan.   For more detail click here. 

      Note:   earlier this month we attended the Sedona conference in Barcelona, Spain which covered all the issues involved in cross-border litigation and international e-discovery.  We had the good fortune to interview Ken Rashbaum, Director of Fios Consulting at Fios, Inc., a recognized expert on all of these issues.   We will post that interview later this week when we publish Part  5 of our Trends series (click here)  when we address working in Europe, an ever expanding market for Posse List members.

Integreon

Integreon demonstrated a new release for its eView platform for hosted document review. The new release builds on the application’s foundation of workflow management and productivity tracking for attorney document review which we saw at LegalTech New York.   The new eView features make e-discovery review and production more efficient and cost-effective, and include:

        • Concept Search to Speed Review: Advanced clustering technologies allow litigation review managers to quickly understand the types of documents in the collection prior to assigning them for review. This can accelerate the review process by excluding non-relevant material altogether (or putting it at the end of the review queue). Users can also highlight a specific document or section of text and, with a single mouse click, immediately identify related documents ranked in order of relevance.

       • Centrally Organize Production Documents: eView improves production management with a central and secure location for organizing production documents. Various different production styles can be managed simultaneously, for example when producing to one or more parties with different requirements for one or more productions. Built-in processes prevent the same document from being produced twice and also reduce the risk of producing privilege documents. Detailed reports make it easy to track all productions. 

       • Save Time Managing Privilege Logs:   It also has the ability to quickly group similar privilege log entries by field and see the quantity of each occurrence. When preparing a final privilege log, bulk find and replace actions can be taken to selectively normalize the values of privilege log fields in order to ensure proper formatting of all entries.  We have not seen this before in a software.

The software is integrated with the Clearwell E-Discovery Platform which is used in-house by many corporations for early case assessment, defensible search, and intelligent culling.  For additional information click here.

Orange Legal Technologies

Orange Legal Technologies is a company we posted about before.  It provides a “one source” series of support services for litigation, audit, and investigation with a focus on the electronic discovery tasks of analytics, processing, and review.   For more click here.

At LTWC it announced the release of the OneO® Data Transport Service – a targeted data transfer service designed to allow users to quickly map and transfer data between disparate electronic discovery applications and services.   We interviewed Ronda Raymond, Vice President of Operations and E-Discovery Solutions, and as she said “one of the biggest challenges in electronic discovery today is the transfer of data between disparate and proprietary electronic discovery services and applications.   Different data formats, languages, and inadequate data transfer schemas all contribute to this challenge”.   So what Orange Technologies aims to accomplish through OneO®Data Transport Service is to see electronic discovery practitioners realize and benefit from the increased flexibility offered by a service that goes beyond the current limited XML-based standards offered today and begin to take advantage of the benefits of newer, more complete offerings.

With the capability to allow data mapping for initial ingestion or transfer from industry acknowledged platforms from providers such as Clearwell Systems and FTI Consulting (Attenex), it looks like the OneO® Data Transport Service provides complete mapping of ESI formats to include text, sound, still and moving images, web archives and generically accepted wrappers and encodings.  And this new service handles foreign languages and includes double-byte character languages such as Chinese, Japanese and Korean.  As we detailed in our coverage of the ILSL conference this is an important area in the explosion of foreign language reviews (click here).   To lean more about OneO® Data Transport Service click here.

For a nice wrap-up of other vendors check the law.com site Legal Technology by clicking here.

SUMMARY

1.  Our biggest take away from LegalTech West Coast was that the e-discovery vendors and legal technology recruitment managers/staff were very optimistic about an improving economy and many of those we spoke to were looking to hire in the next 3-4 months.   We’ll have a separate report next week on employment opportunities with vendors.

2.  And, yes, attendance was certainly down from the last few years (this was our 3^rd LegalTech West Coast) but there was not the negative buzz we felt at LegalTech New York.  

3.   The buzzword at the show: “pushing left” — the continued push to the left of the EDRM model with more and more emphasis on planning and protocols (Fios, Orange Technologies, Nuix). 

4.  Posse List members need to network network network via social media (or the old fashion “meet and confer”) and make things happen for themselves. 

5.   To get you started on networking, branding, blogging, and raising your profile click here and click here and go to all our helpful links on The Posse Ranch by clicking here.

For our complete coverage of LegalTech West Coast click here.   

Our “Posse List moment”

At the panel entitled “Document Review: Establishing the Team & Utilizing the Technology” Browning Marean, senior counsel in DLA Piper’s San Diego office and a member of the DLA Piper Litigation group and co-chair of the Electronic Discovery Readiness and Response Group (click here) gave us a nice shout out during the session when the panelists were discussing managing document reviews.  He called out “hey, Carl from The Posse List is here and Carl is a document reviewer so let’s hear the Posse List view.”  So we gave our perspective from a reviewer’s point of view and told the session that all reviews were different and so much depended on the associates or team leads who were running them.  We went on to say that the best orientation/training was when the reviewers were provided with more than just a briefing (from a partner or associate) and a binder, but also examples of documents that satisfied different coding tags.  A little later we interjected how important it was for reviewers to get feedback on their coding, and early QC was crucial for detecting if there was any confusion. 

Other members of the panel included Linda Sharp and Bernie Stea from Kroll Ontrack, Ron Best and Phil Nickels from the law firm Munger, Tolles & Olsen, and Joel Vogel from Paul Hasting’s DC Office.   

We had spoken to Browning at a previous break because in one session the panelists were discussing the pros and cons of doing everything in-house versus sending everything out to a vendor which is the Paul Hastings model.  We discussed the Howrey model which is at the other extreme because Howrey has one national center (Falls Church) where all of the document reviews are conducted for all of their offices.  And in between you have firms like Cleary Gottlieb which are somewhat in the middle with several centers in the U.S. and in Europe.

The Litigation Technology Workshops and E-discovery tracks

We fanned out and covered all of the sessions which had titles such as “An Ounce of ESI Preventionis Worth a Pound of ESI Cure” and “eDiscovery Issues and Trends”.  Some notes and observations from these sessions:

1.  One repeated theme from in-house counsel: “we get better e-discovery pricing on data and review from vendors than we do from our outside law firms because these vendors want the corporate client.”  This is a theme we have discussed in many previous Posse List posts and goes to the efforts made by corporate clients to cut costs by “going direct”, by bring initial case assessment and initial review in-house (both covered later today at several sessions), etc.  It is one reason that EDD vendors are “scooping” agencies in staffing projects.

2.  The “Craig Ball mantra” repeated endlessly:  it’s not “e-discovery” anymore. ESI is so prevalent let’s just call it “plain ole discovery”.

3.  Documenting the entire ESI collection process is most important responsibility of litigation support.  It prevents so many problems later on.

4.  Many panelists were in agreement: linear document review is often the safest and most efficient process for most projects and the role of well-trained contract attorneys is critical.  The technology that has developed has made the process shorter, with fewer contract attorneys necessary, but they are still critical.

5.  “Planning ahead” is simply not done but it must be done.  Technology used intelligently to store, archive, and dispose of data can result in 50% e-discovery cost savings downstream.

6.  Early case assessment: the technology keeps getting better and better.  The dominant players in the market: Clearwell, Case Central and Equivio (see separate posting by clicking here).

7.  Another recurring theme at all three sessions:  “best practices”.  We found that the Kroll Ontrack people were a little too idealistic and it was invaluable to have the experience of the practitioners to inject some reality into what happens at reviews.  They were very candid about the shortcoming of attorneys (their lack of education/knowledge in the area of e-discovery and their hesitance to change).   It seems that the most effective catalyst for change is showing the attorneys and clients how much things cost.  This really gets their attention, since the review of documents is one of the most expensive components of litigation, and they are receptive to how savings can be achieved through best practices in early case assessment, effective searching and filtering of the data, proper assembly and training of the review team, and ongoing quality control procedures.  The panels discussed several tools that can be helpful in these areas (ones that produce graphs and spreadsheets for tracking, for example); but they did not endorse any particular applications, maintaining that the needs of every project were different.

Our coverage continues and we’ll have much more during the day and later tonight.

For all our LegalTech West Coast coverage click here.

To follow all those Tweeting from LegalTech West Coast follow on www.tweetdiscovery.com

As we have reported in several posts these last few months, early case assessment (ECA) is the key technology to reducing the cost of e-discovery.  There have been multiple vendors in this space with Clearwell Systems the leader (click here).

Most new ECA platforms have been standalone applications that required users to import and export data depending upon what other eDiscovery technologies that they were utilizing. 

But now we have CaseCentral (click here) stepping to the plate by integrating ECA into their offering and enabling users to now start with ECA and extend through analysis, review, production and post-production re-use, facilitating collaborative assessments of new case merits and liabilities, application of first pass review, and real-time transfer to active review if required, all at a price point that changes the current ECA pricing model.

And in the area of “document relevance” is Equivio which is the hands-down leader in near de-duping and email thread management technology. They have just launched Equivio Relevance^TM which provides:

• Early case assessment: facilitates rapid assessment of the key issues and concepts in a case.
• Culling: ahieves high levels of recall and precision, helping overcome the challenges of over and under-inclusion that characterize traditional keyword methods.
• Review prioritization: By organizing the review set according to relevance rankings, Equivio enables prioritization of document review. This allows attorneys to immediately focus on the most relevant documents.
• Review quality assurance: By identifying discrepancies in the responsiveness designations vis-à-vis the human review team, the application helps find responsive documents missed in the detail review. Similarly, the discrepancies can be used to locate documents incorrectly marked by the human review team as responsive.

We’ll have more on other technologies in another post during LegalTech West Coast.  For our full coverage of LegalTech West Coast click here.

LegalTech West started today in Los Angeles and Steve Harmon, director of legal services at Cisco Systems, discussed the processes and technologies developed by Cisco to support its in-house legal department and outside counsel.  His speech, titled “Maintaining Efficiency, Controls and Quality through Automation”, was all about leveraging technology.

“In this challenging economic environment, it’s more important than ever to properly allocate resources along the ‘core vs. context’ continuum,” said Harmon.  “My goal is to offer insight into the processes we follow at Cisco in making these allocation decisions.”

Harmon manages Cisco’s Legal Technology Solutions team, chartered with developing and maintaining systems and process that support the efficiency and accuracy of all legal functions at Cisco. These systems and processes include contract management, export compliance, regulatory compliance, legal knowledge management, Web-based resources and file room operations.

He also continues to practice law for Cisco as an adjunct member of Cisco’s licensing team where he focuses his practice on intellectual property issues with a specific emphasis on matters including privacy, standards setting organizations and sponsored research programs.

His business development experience includes work as a former member of Cisco’s Strategic Alliances organization where he led the global alliance team responsible for Cisco’s relationship with Hewlett Packard. Prior to joining Cisco, Harmon was director, strategic alliances for Novell and a member of Novell’s Strategic Investments team. He holds a B.S. degree in Business Management (Information Systems emphasis) and a J.D. degree, both from Brigham Young University.

Technology can refine business processes and make business models more efficient. For instance, Cisco Systems is a top provider of IP-related networking equipment, but Cisco doesn’t operate a single manufacturing plant.  Cisco relies on a handful of contract manufacturers for the bulk of its production. A single enterprise extranet connects manufacturers and distributors. By creating electronic links instead of physical ones, Cisco is able to reduce the number of steps necessary to obtain and fulfill customer orders.

Technology can also improve the ability of companies to manage process knowledge. Cisco provides the data collected by its customer service department to equipment designers and manufacturers. Through this process, Cisco’s been able to trouble shoot, identify design and marketing flaws and correct them. “Companies can slice and dice data to create insight,” noted Harmon.

His key point was that we need to eliminate “silo’d sources of information” .  With that structure there is no ability to scale.  What is needed is collaboration.   He pushed a tool that captures emails into a forum.   In the forum, for example, a question can be proposed and answers collected from all the people in the forum.  The question can be stated in such a way that nothing is revealed that is privileged or confidential (commmon legal questions that are non-proprietary).  He specifically  mentioned ORX (On Ramp Exchange) as such a tool.  It provides moderated collaboration and can be a repository for email communications. It eases problems related to storage, retention, and risk management.  Also, it can be internal, with a client, with peer departments, and/or with an outside firm.  There was even a videotaped testimonial from Applied Discovery.

We have been attending all of the Kroll Ontrack Litigation Technology Workshops and the E-Discovery tracks.  We’ll have more to report later tonight and tomorrow.

LegalTech West starts this Wednesday in Los Angeles (click here) and  we will have full coverage.  The Posse List recently hired a Chief Technology Officer who will be covering the event with other Posse List staff and they will be attending a number of the seminars and also trolling the exhibitor center.  We have arranged interviews with a large number of the vendors and seminar participants.

We are also going to mesh our coverage of LegalTech West Coast with Part 4 of our Trends series of the contract attorney market (click here) which covers selected e-discovery and litigation support vendors and opportunities for contract attorneys, including software certification and specialty and getting jobs with e-discovery vendors.   As a number of e-discovery sites have noted, there is a big demand for contract technology workers, including lawyers with e-discovery experience, as freelancers or consultants.

Note to vendors:  if you are going to be at LegalTech West and want to meet with us, please email us at manager@theposselist.com