In an effort to cut expenses, WilmerHale has decided to “in-source” its business operations to Dayton, Ohio.  But other law firms could also benefit from relocating support staff and even attorneys to less costly locales beyond the urban hubs according to an article in yesterday’s Law360.  

The WilmerHale facilities, which are slotted to open in September, will house the majority of the firm’s finance, human resources, information technology, document review and practice management operations, which are currently spread out between its Boston, New York and Washington offices. 

And WilmerHale is not alone.  In 2002, Orrick Herrington opened a global operations center in Wheeling, West Virginia, a town of about 30,000 near Pittsburgh. The converted warehouse operates around the clock and holds the firm’s help desk, document and transcription production, billings and collections, payroll and other business functions.

For the full article from Law360 click here.  

This is a trend we have written about in numerous posts.  These smaller metropolitan areas come with lower price tags for rent, taxes and employee salaries.  As the Law360 article notes “given the economic beating the industry has taken in recent years, and the availability of sophisticated technology, it may finally be time for law firms to move their business operations — and even some legal work — to low-cost locales throughout the U.S.  This was a significant topic during our coverage of the Georgetown Law conference “Law Firm Evolution” (click here).   

Even with contract attorneys providing law firms the opportunity to cut their costs (and their clients’ costs) with respect to e-discovery, the expenditures can still be prohibitive, particularly in high-cost regions like D.C. and New York where the cost to maintain a document review is higher than elsewhere in the U.S.   As we have reported in the past, besides the state-of-the-art technology driving costs down, the drive to cut costs has led corporations and law firms to seek other ways to cover their e-discovery work — without sending it overseas.

These outsourcing discussions highlight a law firm or client’s desire to simply seek lower cost alternatives, and that has led to a growing development of in-sourcing (also called “farmshoring” or “onshoring”) by staffing projects in locales such as Atlanta, Charlotte, Columbus, Houston, Indiana, Tennessee and West Virginia, as well as working with law firms in smaller metropolitan areas where billable rates are lower but quality is just as high, or going with lower cost niche firms throughout the country. 

As Lumen Legal says in its recent white paper: “As such, the industry is re-thinking its cost-saving strategy even further, expanding it to ask not only who is performing document review, but where.  Companies are starting to accept that the location of the contract lawyers is irrelevant.”

And so we’ve seen this greater movement to “outsourcing” document reviews but to these “on shore” centers — to U.S.-licensed lawyers in less-populated, less expensive areas of the country.  It’s the alternative to offshoring that many clients and attorneys find unattractive.  Ohio, North Carolina, Tennessee and Texas, for instance, have a wealth of law schools, a supply of legal skills and legal services capacity, and housing document reviews is not as expensive as other regions.  And that’s why we’ve recently seen a surge in document reviews in Indiana, Michigan, and Ohio. 

We are certainly NOT discounting the power of offshore centers but there is also an undercurrent to stay in the U.S., but away from the metro centers.

To stay abreast of the jobs we post across the country, Europe and Asia subscribe to one (several) of our listservs by clicking here. 

Note:  next week we resume our “thought leaders” series (click here) with a joint interview:  Steven Berrent, Esq. (Director of Complex Case Services, WilmerHale) and Craig Carpenter (General Counsel of Recommind) who discuss.  Interviews to follow will include  John Tredennick of Catalyst,  Dean Gonsowski of Clearwell Systems, Brandon Daniels of CPA Global, Anne Kershaw and Patrick Oot of The eDiscovery Institute, George Socha (inventor of the Electronic Discovery Reference Model), Scott Holec of eTERA Consulting, Warwick Sharp of Equivio, Bobby Balachand of Exterro, Steve Akers of Digital Reef, Julia Brickell of H5, Greg O’Reilly of LDM Global,  James Schellhase of StoredIQ … plus many more.

As always, have a question or suggestion?  Email us at manager@theposselist.com.

Adam Cohen, Senior Managing Director at FTI Technology is a nationally recognized expert in electronic discovery and electronic information management policy issues.  He is the co-author of two books on electronic discovery:  Electronic Discovery:  Law and Practice, a legal treatise which has been cited in several landmark federal court opinions, including Zubulake and Lorraine v. Markel, and the recently published ESI Handbook.   

Prior to joining FTI, Adam was a litigation partner at Weil, Gotshal & Manges.  He teaches electronic discovery at Fordham and Rutgers law schools, and co-chairs the Electronic Discovery committee of the New York State Bar Association’s Federal and Commercial Litigation Section. 

We caught up with Adam in FTI’s New York offices. 

TPL:        First of all, congratulations on the silver award to Ringtail by Law Technology News readers in the category of case management software for large law firms.  

AC:         Thank you.  As a bit of background for your readers who don’t know the process, in 2009 the editors of Law Technology News asked the publication’s more than 40,000 subscribers to identify products and vendors that represented outstanding achievement in legal technology in 25 categories for its seventh annual awards program.  The awards, selected based on subscriber online voting, will be presented at LegalTech New York on February 1, 2010. 

TPL:        Well, among our contract attorney base there aren’t too many who don’t know or have not worked with Ringtail or Attenex.  But if you want to get a plug, now is the time. 

AC:         We’re proud of this award because it recognizes the integration of Attenex and Ringtail functionality, now available on one platform. So, Ringtail users will benefit from the visual analysis and rapid review capabilities of Attenex, and Attenex users will benefit from the enterprise-class case management, redaction and production features of Ringtail Legal. So this single solution combines two market-leading applications. It is available both on-premise and on-demand, and provides significant advancements in the speed, flexibility and cost-effectiveness of e-discovery and document review.  With these productivity improvements, Ringtail offers corporations and their trusted advisors the ability to control more of the e-discovery process with fewer tools and at a lower total cost.  

TPL:        You said “market-leading”.  I know many of our contract attorney members have used it.  Can you give us an idea of market share or your definition of “market-leading”? 

AC:         You can look at this two ways. In terms of market adoption, you touch upon how many review attorneys have used Attenex and Ringtail. The two key reports within the industry that gauge user adoption of software tools – the AmLaw Tech survey and the Socha-Gelbmann annual e-discovery report – have recognized both Attenex and Ringtail as among the top e-discovery tools used by corporations and law firms. If you look at market-leading as exhibiting thought leadership and delivering strategic offerings for clients, we’ve been recognized by Gartner as a “strong positive” provider of e-discovery software – one of only five software providers to earn that rating.  That said, we remain humble with respect to our achievements and look to our users’ feedback as one of the best ways to validate our decisions and help inform future choices. 

TPL:        Last year — for obvious reasons — corporations and their law firms were searching for and selecting more cost-effective e-discovery processes and technology.  How does Ringtail and/or Attenex fit in the “cost-effective” bucket? 

AC:         FTI conducted a study recently of Fortune 1000 GCs and 72% cited legal review as the most expensive phase of e-discovery. (A full copy of the report is available for download at FTI Technology’s website.) The combined Attenex and Ringtail software allows corporations and their law firms to dramatically reduce the cost of e-discovery by speeding up the review process on one platform, from processing through production. Our software has been purpose-built specifically to reduce the cost of legal review, and we have a proven record of delivering measurable results for clients.  

TPL:        Ok, news flash.  There is a myriad of software out there — review software, early case assessment software, ESI management software, etc.  How do you distinguish FTI from the pack? 

AC:         Good question. The most recent Socha-Gelbmann study estimates that there are over 600 companies offering some kind of e-discovery software or service. That’s an incredibly crowded market and may be confusing for legal teams to navigate. We believe that FTI has a few key differentiators. 

First, we believe our software is foremost in its ability to reduce the total cost of e-discovery.  Measures such as document decisions per hour, search speed and ability to handle very large data sets all translate into direct cost savings for corporate customers paying for e-discovery services.  Our products excel along all three of these measurements. 

Second, our software can be deployed at the corporation or law firm, or we can host the software. This provides clients with flexibility if they need to outsource legal review today, but want to keep control of their data and possibly move review tools in-house in the future. They won’t have to change their software or workflow. 

Third, have expert services and consulting that can wrap around the software, whether it’s a discrete process like collection, or developing a holistic and defensible information management process. We’re also global, with offices in every major business center in the world, so if you need help collecting data in Europe or Asia, we can assist in compliance with local data privacy requirements. 

And, perhaps most importantly, we’re a public company with a proven track record in this industry, and the stability our customers prefer. 

TPL:        You mentioned that FTI is pretty global.  Are there versions of Ringtail and/or Attenex for other languages or is it Unicode? 

AC:         Yes, including support for right to left languages, and character sets without spaces.  These are critical to supporting Arabic, Hebrew and certain Chinese languages, and distinguish our products beyond simple Unicode compliance.  It is one reason our products are in regular use around the world.  And like I mentioned, with 3,500 employees located in most major business centers in the world, we have significant expertise in multi-national litigation and e-discovery. As an example, we have extensive experience “parachuting in” to particular countries and conducting on-site reviews for corporations or their outside counsel, because the local data privacy requirements won’t allow data outside of the country, or in some extreme cases, that data can’t leave a certain building. 

TPL:        We have seen a here are a lot of document reviews going on in Europe, and the pace is increasing.  Have you seen an uptick? 

AC:         Absolutely.  Although there isn’t as much e-discovery in European courts as in the U.S., the trend of increasing data volumes and e-discovery is global.  Also, where U.S. attorneys need to review documents held by clients in Europe, they are increasingly choosing to do the review on site to mitigate the risk arising from EU data transfer and privacy laws. This is especially true with investigations in the EU, where we are able to dispatch our e-discovery professionals with mobile units containing critical software applications. 

TPL:        FTI has published a number of white papers on controlling electronic discovery using in-house resources.  Can you give us an overview on what FTI is doing for in-house law departments? 

AC:         Certainly.  Let’s start from this premise:  rather than relinquish control of e-discovery to these experts and their firms, in-house legal teams and their executives are trending toward retaining control of decision-making and acting as collaborative partners throughout the life cycle of a particular matter. 

It is this equilibrium that will dictate the growth and development of electronic discovery in the years to come, and not simply technology or regulatory guidelines. Those who embrace the internal/external partnership will streamline progression and enhance their readiness for favorable outcomes. 

At FTI we work with corporate clients to understand and evaluate their IT environments and the systems, policies and procedures they use to carry out e-discovery obligations.  We facilitate a process where technology and policy are balanced for optimal efficiency and e-discovery compliance.  Really what in-house law departments need is a program because the expectations of courts are increasing just as fast as the volumes of data.  In the end, litigation can and should be treated as a dynamic business process. 

TPL:        Ok, bingo.  You have hit on the purpose of this series of interviews. The “tsunami of data” as Ralph Losey says.  A volume of data (and cost of discovery) which seems to be exponentially greater by the minute.  In a nutshell, how do you help clients cope, get organized? 

AC:         It’s a very logical process built on understanding the sources of ESI and developing a plan to address them that is practical and actually capable of implementation.  The reality is that the corporate culture and the budgetary and personnel resources that are available will influence the shape of the customized approach that is optimal.  We believe that it is a mistake to look for easy answers in one-size-fits-all technology solutions and “best practices” that are preached in the abstract. 

TPL:        So, we now have a new lexicon, funky technology — and not necessarily technologically astute lawyers.  Are most lawyers technophobic or perhaps they don’t see technology like those of us in the industry? 

AC:         I think there are lawyers who simply have not taken the time to become educated about technology, largely because they have not yet felt such learning to be critical for their particular practice of law.  There has been a tremendous increase in awareness over the past few years however, and especially with the 2006 amendments to the Federal Rules of Civil Procedure, lawyers need to have some rudimentary understanding of computers.  Unfortunately many still don’t know where to turn for help. 

TPL:        So it’s really a lack of knowledge, a lack of familiarity?  How do you help? 

AC:         We are heavily involved in educating clients about what we do and how the choices they make regarding technology impact their litigation costs and outcomes.  Rather than sell a technology and run off to the next sales pitch, if clients desire, we can also provide expert consulting to facilitate their understanding and systematic implementation of defensible-e-discovery processes.  Lawyers need that expert advice and understanding in order to defend their conduct of e-discovery. 

TPL:        And your technology works no matter what — potential litigation, government investigation, internal investigation, whatever? 

AC:         We have purposefully set out to develop technology that is flexible and scalable so that we can recommend solutions that make sense in any given legal scenario.  We advise clients to be wary of those vendors who tell clients that their product is an “easy button” that will take care of any situation “automagically.”  E-discovery is about more than software; it’s about a defensible legal process. 

TPL:        You have also written some white papers on the impact of e-discovery on IT operations.  That was a big topic last year. 

AC:         Clearly it is important for IT personnel to participate actively in the discovery process.  As successful e-discovery requires knowing where, when, why and how the company stores and destroys data as well as how to retrieve it, the IT team’s role has to begin with information management, well before there’s any hint of litigation. Successful e-discovery that minimizes costs relies on an organization’s information management strategy, namely its data retention/destruction policy and data management system.  Because of IT’s central role in e-discovery, and because e-discovery has such broad implications for IT operations, we advise clients’ IT professionals to familiarize themselves with the basics of e-discovery law and legal terms.  We also recommend IT and legal departments collaborate on important policies and procedures for e-discovery, such as choosing the  formats in which data should be archived or how long to store metadata. 

TPL:        Ah, now you are in the realm of courts who want to know about policies for data retention, litigation holds and information integrity. 

AC:         Exactly.  So it’s vital that policies are documented and systems support them.  Once the e-discovery process is in motion, IT managers work with lawyers and other people in the company with knowledge of the subject of the litigation. They try to identify what requested documents exist, where they’re located and who created or controls them. Then they issue the litigation hold. After that, the potentially relevant documents are copied, sorted and prioritized. Finally, the relevant documents are converted into image files and/or paper documents and given to the other party.  And then even after production in discovery, admissibility issues unique to electronic evidence may arise. 

TPL:        So it is critical that someone in the organization knows how to collect, process and review ESI without accidentally altering it? 

AC:         Because? 

TPL:        Wait a minute.  I ask the questions!  Ok, just this once.  Because inadvertent alterations can result in “spoliation,” which is the destruction or alteration of information that could be used as evidence.  

AC:         And sanctions. As we describe in gory detail in Chapter 3 of Cohen and Lender, Electronic Discovery:  Law and Practice, courts have issued a range of severe sanctions where parties have destroyed electronic evidence, sometimes even where there was no bad faith but only negligence.  There are even criminal penalties possible under certain circumstances.  

TPL:        And we only have to look at Judge Scheindlin seminal decision in the very recent Pension Committe case (link) to know the consequences.  

AC:         That’s why IT professionals need to work with an organization’s outside counsel to help them understand the information architecture, systems and databases–so they can make informed decisions about identifying, preserving and collecting requested data. 

TPL:        And what do you think is at the forefront of the discovery process, the most important thing, the biggest challenge? 

AC:         Based on the Pension Commitee opinion and the continuing stream of sanctions cases for spoliation, I would have to say that the biggest challenge seems to be complying with the duty to preserve electronic information.  Most organizations still don’t have a written plan ahead of time to implement litigation holds smoothly, so they fumble around in reactive mode–which breeds mistakes. 

TPL:        There is a feeling among in-house counsel (gleaned from the ACC meetings we attended) that direct relationships with e-discovery vendors are best, rather than through outside counsel.  Do your law firm clients perceive this as a threat to their business? 

AC:  Members of a multi-disciplinary team always need to define roles and responsibilities, but generally no – most of our law firm clients welcome the improved awareness on behalf of their corporate clients, and most of our corporate clients likewise appreciate the efficiency and benefit of interacting with us directly.  When clients deal with providers directly they tend to learn more about the processes and that education makes their lawyers jobs easier.  Lawyers don’t want to be the ones passing through a vendor’s e-discovery bills to a client who doesn’t understand them and “shoots the messenger”! 

TPL:        E-discovery vendors have also had much success the last 2 years moving into the e-discovery space across the whole EDRM model, especially in the area of document review (the “right side”) and that success is due to the continuing move by corporations to move EDD directly in-house.  Document review is a nice piece of change.  Is this a move you contemplate? 

AC:         We do observe that clients would increasingly prefer to avoid juggling multiple vendors across the spectrum of e-discovery processes. The handoffs between providers create additional layers of management, expense and risk. Instead, companies are increasingly “converging” on one or two proven providers that can address a wider spectrum of global e-discover requirements regardless of scale. To serve a large enterprise client effectively, this means diverse global capabilities – not just for software or services or consulting — but all three.  At the same time, corporations increasingly identify legal document review as the single largest opportunity for achieving sustained cost savings. We developed our latest offering, FTI Acuity, to address these issues head on. Acuity provides corporations and counsel with everything they need for e-discovery and document review—from processing through production—at a fixed per-document or per-gigabyte rate and with a single point of accountability for the entire process. This includes data processing, the hosted review platform, document review, production, project management and all of the associated consulting services. 

TPL:        E-discovery costs are skyrocketing.  Yet much of EDD is now a commodity – and that has changed the structure of the market.  Prices are — shall we say — more predictable and probably more realistic.  E-discovery vendors have capped fees, set flat fees or worked with various forms of pricing estimators.  Have you changed your pricing? 

AC:         The challenge in 2010 for everybody — corporate clients, providers and law firms alike — will be to find a commercial balance across the time, quality and cost dimensions.   We work regularly with clients to review and adjust pricing and service levels as market indications/client requirements warrant.  We also engage clients in alternative fee structures – these can be an effective way to respond to a matter or collection of matters based on their size, duration or requirements.  

TPL:        The big “new new” thing all of last year — at every event we covered — was early case assessment and winnowing relevant data down to reduce the number of documents to review.  As the stats bear out, it is the most expensive part of the process.  But now we have predictive coding plus the work being done in computer assisted review by Herb Roitblat, Anne Kershaw and Patrick Oot.  Is the technology getting to the point where we can also winnow out the eyeballs — contract attorney reviewers? 

AC:         Predictive coding raises great promise and great concern.  Promise, because as you say attorney reviewers are the most expensive and least consistent part of the process. Concern, because however flawed traditional document review may be, it is the dominant model both commercially and in the courts.  It is going to take some time for the world to accept the elimination of manual labor in document review, and it is only going to do so when the technology is sufficiently mature and the quality of result is convincingly superior.  Fortunately for FTI, we are well on our way to both.  Attenex, which we acquired in 2008, was a pioneer in this area, and we have continued to progress significant R&D in this area.  New predictive coding algorithms lie at the heart of our Acuity Integrated Document Review offering, and even further reaching developments are in our lab.  We wrap that technology in innovative workflows that permit senior lawyers to guide the review of huge volumes of documents.  We test our results with statistical sampling, something rarely done in the traditional process because it tends to reveal inconsistency.  And our experienced courtroom testifiers stand ready to defend our innovative process.  We believe that all of these elements are necessary for market adoption of “computer-aided document review.”    

TPL:        Why is it that you chose to go to FTI after leaving Weil Gotshal?  I would imagine that after publishing an e-discovery book that was cited in Zubulake when it was still a manuscript you must have had opportunities from a number of e-discovery businesses.

AC:         FTI is different from just about every other company in the market in so many ways, but if I had to identify the factors that were most important to me in choosing FTI I would point to the professionalism of its people and the unique marriage of cutting-edge technology with deep e-discovery expertise.  As a litigation partner at one of the world’s best litigation firms, I wanted to go to an organization with comparable standards of professional excellence and a similarly high level of respect among corporate clients. 

TPL:        What’s the scoop on your latest book, the ESI Handbook? 

AC:         The Handbook is meant to fill what I perceived as a gap by providing a primer to attorneys and other legal professionals on technical and process aspects of e-discovery in language they can understand.  So it complements the legal treatise (Electronic Discovery:  Law and Practice) nicely.  It also has an appendix on CD with toolkits for constructing litigation procedures, document retention policies and other documents.  The toolkits are especially valuable because they contain excerpts from real client documents and as such are different from the typical forms in the back of books that are too generic and divorced from real use to be of any utility. 

TPL:        Is FTI announcing anything at LegalTech? 

AC:         We’ll be launching FTI Acuity, which I mentioned earlier in the interview. We are excited about Acuity as we believe this addresses some of the biggest pain points in e-discovery today.  We believe Acuity’s integrated document review delivers more accurate, predictable and cost-effective results than any available alternative. More valuable because Acuity is guided through collaboration with outside counsel and provides real-time intelligence from the documents to shape case strategy.  More predictable because Acuity includes everything needed, from processing through production, at a single price. More cost-effective due to Acuity’s use of next-generation review technology that speeds review, and proven workflows that eliminate expense. And Acuity is defensible; backed by statistical validation and expert witnesses from FTI, a global Tier One provider with the experience and reputation you can trust. 

TPL:        Adam, we greatly appreciate your time. 

AC:         My colleagues and I enjoy reading The Posse List so it was a real pleasure talking with you.

Postscript:  FTI will be demonstrating their products, including Ringtail QuickCull, Attenex Patterns and Ringtail Legal, at LegalTech booth #2100.

Our team arrived in NYC yesterday for LegalTech New York.  It opens today (February 1st) for 3 days.  It will be held at The Hilton New York (1335 Avenue of the Americas, New York, New York  1-212-586-7000).

The show is presented by ALM Events, a producer of educational and networking events.  And most of us know ALM through its various media outlets/brands:  The American Lawyer, Corporate Counsel, Law.com, Law Journal Press, The National Law Journal, etc. 

It is the world’s largest legal technology conference and trade show.  Last year the show attracted nearly 13,000 attendees and featured almost 300 exhibiting companies. The 2010 conference will offer more than 60 educational sessions for attendees on topics ranging from electronic discovery and knowledge management to emerging technologies.  

Each day, the sessions are parsed into multiple tracks including: Risk Management, General Counsel, Web 3.0, Intelligence, Knowledge Management, International E-Discovery, ILTA Advanced IT, Comprehensive Recordkeeping, and Emerging Technology.

We’ll be posting some more interviews as part of our series on e-discovery (click here) with folks from Fios, FTI Technology, Recommind, and LDM Global.  We’ll also have a video chat with Jason R Baron and Ralph Losey,  plus Chris Dale.  And we’ll have chats with George Socha and Anne Kershaw and Patrick Oot.  Plus many others.

But there is always much too much to cover in such major events like this, even for a 4-person team.   Yes,we’ll try to cover all the vendors, and all the technology, but we intend to focus our substantive pieces/posts/reporting on:

1.  Developments in predictive coding and  computer assisted document categorization.

2.  Europe and Asia and cross-border e-discovery.

3.  The convergence of intelligence, intuition and information (the subject of Malcolm Gladwll’s keynote presentation on February 3rd.  See below.)

We have covered both LegalTech shows (New York and LA) because our membership base has expanded beyond our core of contract attorneys/temporary attorneys and contract forensics consultants to include paralegals, in-house counsel, law firm attorneys, solo practitioners, e-discovery vendors, legal media, and others. 

If you are contract attorney/temporary attorney or a contract forensics consultant or paralegal, or involved in some aspect of e-discovery work, and you are in NYC next week,  you should go.  No, not necessarily pay the $695 single-day attendance fee if you cannot afford it.  Because a lot of LegalTech events are open to everybody.  

For instance, you can get a pass to attend the Exhibits, the Keynote addresses, the General Sessions, and the Emerging Technologies Tracks & SuperSessions all for free.  Just go to the registration page  (click here)  and you’ll see the box (ok, it’s a circle) to attend those things for $0.0.  

Wny go to the exhibit hall and see vendors?  

1. To learn more about e-discovery technology and the e-discovery industry.
2. For contract attorneys, to meet with vendors who are on the “right-side” (document review and production) of the EDRM like Applied Discovery, CaseCentral, Clearwell Systems, Fios, Trilantic, and many others.  They either have an internal document review/production component or are aligned with partners that do.  As we have said in multiple posts, many vendors now handle all elements of the EDRM (gee,how many times at LegalTech are we going to hear “end-to-end solutions”?)  So check it all out.  All the major players will be in one spot. 
3. If you are a forensics person or otherwise involved in e-discovery work, #2 applies to you, too, since you’ll find a vendors involved in all or part of every aspect of the EDRM.

Take your resume or business card.  Talk to people.  Make a connection.  The appropriate hiring person may not be there (the vendors are trying to sell stuff.  duh.) but ask for an appropriate contact, a person’s name/email.  Collect business cards.  Make something happen.  In the last two years we have met scores of Posse List members at LegalTech and other legal technology conference and trade shows and they were doing just that.  In the past year we have heard from over 300 of our contract attorney/contract paralegal Posse List members tell us they found jobs with vendors — and not just document review.  In data collection and processing, , forensics, product development, project management, etc. 

And some vendors are running special programs, also free.  For instance, CT Summation is running sessions off the Exhibit Hall on Feb 2nd from 9-12.   The Exhibit Hall hours are:

       Monday, February 1st                 10am to 5pm

       Tuesday, February 2nd               10am to 5pm

       Wednesday, February 3rd          10am to 3pm

Want a complete list of the vendors appearing?  Then click here.  You will get a list and a web link to each vendor’s website.   When you get to the Exhibit Hall you will receive a brochure that indicates the booth number of each vendor.

And the vendors will part with a brochure or two so you learn about their products, learn more about e-discovery.  They want to educate.  In our interview series (click here) you will note each vendor tries to educate on various e-discovery issues as well as honk their own horn. 

The series was developed as part of our efforts to provide a voice in the discussion around e-discovery, bringing together interviews, news summaries, and resources.  We do that in addition to providing job and project postings (click here to subscribe to our job lists).

And as we noted, some of the major LegalTech sessions are open to all.  For example: 

Feb 2nd at 9:00am:         Facebook:  Perspectives of Corporate eDiscovery and Social Media presented by:  Mark Howitson, Deputy General Counsel, Facebook

Feb 2^nd at 9:00am:          Epiq Systems SuperSessions on Controlling Discovery Expenses in 2010 (and CLE eligible)

Feb 3rd at 9:00am:           I3:  The Convergence of Intelligence, Intuition and Information presented by Malcolm Gladwell (author of Outliers, Blink ,and The Tipping Point), Dr. Lisa Sanders (New York Times Columnist, Author of Every Patient Tells a Story: Medical Mysteries and the Art of Diagnosis), and David Craig (Chief Strategy Officer, Thomson Reuters)

Feb 3^rd starting at 10:30am:    Trilantic’s International SuperSession  regarding international disclosure matters.

There is tons more.  For the full event brochure click here.

And if you can’t make it, we’ll have full coverage through our Twitter posts on our home page, and you can also see them at www.twitter.com/posselist.  We are alo running  a live video stream of certain events on our home page courtsey of Applied Discovery.  And if you have any difficult accessing it you can also go here  you can also access it here: http://www.livestream.com/applieddiscovery .

Hope to see you at LegalTeh.

Ron Friedmann is Senior Vice President of Marketing for Integreon.  He is a leading authority on practice support for lawyers.   Ron managed practice support at then Wilmer Cutler (now WilmerHale), was CIO at Mintz, worked for two legal software companies, and ran Prism Legal Consulting.  He is a Trustee of the College of Law Practice Management and on the Board of Governors of the Organization of Legal Professionals.  Ron has a JD from NYU and BA from Oberlin College.  

Integreon is well known for its e-discovery, managed document review, legal process outsourcing (LPO), research and knowledge support, and middle office business services for law firms, corporations, and financial institutions.  Beyond marketing, Ron helps law firms and law departments improve efficiency and effectiveness using Integreon services. 

But it is through his blog, Strategic Legal Technology, that Ron is best known.  Ron has blogged since 2003; in 2009, the ABA Journal selected his blog for its Blawg 100, the ABA’s annual list of the best of the blawgosphere.  The choice was a good one: Ron is as insightful as he is prolific.  His blog is widely read because Ron writes with two decades of experience at the intersection of law practice, law business, outsourcing, e-discovery, knowledge management, and technology.  

We caught up with Ron at The Masters Conference and then at his D.C. area office.  

TPL:   Ron, you have written extensively on the consequences of the paradigm shift in the legal industry.  In a recent blog post you said, “what is bad news for law firms could be good news for legal technology managers.”  Can you elaborate? 

RF:     Law departments must act to reduce legal spend.  If GCs don’t, we may see CFOs and CEOs step in.   So the new normal for law firms won’t be the same as the old; the time for minor adjustments has passed.  The legal market will likely stay flat and see downward price pressure.  Consequently, firms have lost pricing power and face a battle for market share.  Winning that battle will require that firms offer clients more value.  To do so, firms will get serious about process improvement, project management, outsourcing, and alternative fees.  This in turn means that firms must deploy new technology and use old technology more effectively.  This will open in a new chapter — maybe even new volume — in legal technology. Getting there will require more business and technology professionals.  

TPL:   A recent Hildebrandt article discussed the fact that we need to be wary about how we measure all of this stuff.  For instance, the “demand” for legal services — as currently measured in the legal industry — is usually discussed in terms of either lawyer hours, or legal fees, both of which can be relatively easily measured and captured.  But clients don’t “demand” lawyer hours — they demand solutions to legal problems (just as consumers don’t “demand” auto worker hours — they buy a car).  

RF:     Exactly.  The market finally recognizes that “inputs” – hours billed – don’t equate to “outputs”, that is results.  Good legal outcomes depend on smarts and repeatable processes more than on sheer number of hours.  Where bulk work is necessary, clients want more cost-effective ways to do it. As a result, legal process outsourcers (both domestic and offshore) now handle growing volumes of routine work formerly done in-firm by lawyers and legal staff.  Firms themselves are reengineering work processes to reduce inefficiency and cost.  This trend will accelerate as fixed fees and other risk sharing alternative fee arrangements spread.  

TPL:   So you see this pretty much as a golden opportunity for vendors? 

RF:     Yes.  And it especially creates opportunity for Integreon’s legal process outsourcing (LPO) service.  A recent article in The Economist noted that LPO is booming.  Law firms can now parcel out more of their basic work so they can focus on their core strength of legal advice and strategy.  

TPL:   We are going to post a lengthy piece on legal process outsourcing during LegalTech and we’ll cover Integreon’s services then, so we’ll hold off on those questions right now.  This is an area that most affects our contract attorney membership. 

RF:     Ok, but let me just make a short comment now.  Legal process outsourcing may very well see a watershed year in 2010.  Since the Rio Tinto law department announced its LPO initiative in June 2009, the U.K. legal press has seen a flurry of LPO announcements.  There is less PR in the US, but many private conversations are taking place. 

TPL:   Fair enough. I do want to discuss LPO with you in more detail at LegalTech.  But one other relatively new development has an even more direct affect on the contract attorney market and we have discussed it many times: the rapid move toward predictive coding technology and machine review.  In 2009 saw two “first pass” document reviews that actually skipped human review and were done by machine.  What are your thoughts on predictive coding? 

RF:     I have been passionate about improving the document review process for two decades.  That’s a big reason I joined Integreon – it shares that passion.  Automation is the key to improvement, so I’ve thought about the role of computers a lot and my thinking has evolved.  

We will see computers play a bigger and bigger role in first-pass document review, at least for responsiveness.   This role can range from culling documents, to prioritizing them, to automatically (or predictively) coding them.  What’s driving this? 

As a society, we simply cannot afford to pay people to look at every document.  As a profession, we must recognize that human review as the “gold standard” makes no sense.  Both anecdotes and studies suggest that human review is not nearly as consistent or reliable as lawyers typically assume it is.  

Computers turn out to be more reliable and consistent than people – no surprise.  But it is not so much the particular software that drives this conclusion as it is the combination of technology, process, and training. 

My blog posts on e-discovery and litigation support show the evolution in my thinking.  In July 2003, I started with Thoughts on Full Text Retrieval, where I questioned the value of concept search versus Boolean search but concluded that the choice is an empirical, not theoretical question.  As volumes grew, technology improved, and we gained experience, my views shifted.  By November 2009, I concluded that the Choice of Concept Search Tool in e-Discovery May Matter Less Than You Think (November 2009).  In that post, based on dialog with two leading EDD experts, Tom O’Connor and Herb Roitblatt, I posited that the semantic engine is less important than the overall process, which includes training and how the tool is used. 

In sum, three trends – (1) pressure to spend less, (2) improvements in process and technology, and (3) growing recognition of the limits of human accuracy – will converge and lead to more “predictive coding”. 

TPL:   OK, I see you’ve really thought about this.  So where do you come out on early case assessment (ECA) — winnowing relevant data down to reduce the number of documents to review — versus predictive coding?  Was ECA the mantra in 2009 and predictive coding the “new new thing” for 2010? 

RF:     I don’t draw that big a distinction between ECA and predictive coding.  The goal of both is to reduce the volume of documents that humans must review.  

ECA uses computers to winnow the number of documents lawyers must review.   It uses several techniques, for example, selecting custodians, narrowing data ranges, applying keywords, and categorizing and prioritizing documents.  ECA allows for strategic decisions, such as settle or litigate, before incurring the significant cost of substantial discovery.   

The goal of predictive coding is to use computers to substitute software judgment for human judgment.  That sounds quite different from ECA but I think both are points on a continuum.  Most predictive coding systems require human reviewers to train and tune them.  And most lawyers will still want to vet predictive coding with humans, at least on a sampling basis.  So I focus on the number of documents ‘humans must touch’ rather than ECA versus predictive coding. 

The two share other similarities.  Both can be used to prioritize documents for review.  Both require maintaining “defensibility” – can you show in court that you have taken all the appropriate and reasonable and steps and documented them carefully.  

TPL:   And what’s your view of the computer assisted review study by Patrick Oot, Herb Roitblat, and Anne Kershaw — “Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review “?  Do you think the technology is accurate enough to take the place of contract reviewers and — more importantly — do you think the technology is fully defensible and do you think judges have demonstrated that they consider automated review acceptable? 

RF:     I read the study and blog posts about it and am still mulling the implications.  At minimum, it advances the discussion about humans versus computer review and shows the value of a controlled, statistical approach.  

It should alert lawyers to the notion that humans are not all that accurate and computers are typically more consistent.  My hope is that it fosters a dialog on the issue and perhaps even helps shift the burden of proof.  Imagine going into court and having to explain why you used an army of lawyers instead of software! 

But I don’t think the study sets up a replay of John Henry versus the steam engine.  That is, it’s not man versus machine; rather, it’s how do we integrate the two in a cost-effective process that holds up both to judicial and statistical scrutiny.  And by the way, I don’t think lawyers or judges give statistics sufficient consideration.  

So, picking up on the ECA and predictive coding themes, I don’t think technology will eliminate review lawyers.  I do think that over time, as processes improve and as courts gain experience, computers will substitute for increasing amounts of contract lawyer review time.  I see a future where armies of contract lawyers as the norm will be replaced by much smaller teams of specialized review attorneys.  Whether that specialized role is contract or full-time is hard to say. 

Though I think automation is defensible, we are at risk for bad rulings, either because a party automates poorly or because, in spite of doing it well, a judge just does not understand the process. 

TPL:   So we are headed down the path to where machines can be statistically proven to be as accurate as human reviewer?  Is the technology getting to the point where we can also winnow out the eyeballs — contract attorney reviewers?  No room for a human element and perspective? 

RF:     I’ll repeat what I said above: it’s man and machine, not man versus machine.  I expect that computers do assume a larger and larger role in doc review.  Society and litigants will suffer if that’s not true. 

For the foreseeable future, however, it’s hard to imagine eliminating all human review.  As technology and process improve, I do think it is likely that the ratio of reviewers to gigabytes will decline.  That is, over time, the human effort will be less focused on what I call “bulk review.”  Instead, humans will likely focus on upfront work (ECA and “system training”), on vetting and tuning computer processes, and on reviewing results to refine systems. That’s why we’ll likely see the rise of specialized review attorneys, lawyers who understand law, technology, process, and statistics. 

TPL:   We recently attended an all-day conference in Washington, DC sponsored by Apple and saw some of the work being done by Google on auto-categorization and auto-coding.  Developers told us that Microsoft is also in the race.  Do you think it is just a matter of time before goliaths like Google and Microsoft — with multi-billion dollar budgets — jump into auto-categorization and auto-coding and wipe out the majority of vendors? 

RF:   As I mentioned above, I think the choice of tool matters less than the overall process.   Unless Google or Microsoft come up with a break-through in computational linguistics (the math behind conceptual search), it’s hard for me to imagine a new search tool vastly superior to what’s available today.  I’m not aware of any algorithmic breakthroughs in the last two decades so I don’t expect any soon.  The breakthrough Google made was using web links as “voting engine” – an approach that does not work for corporate document collections, which are not linked. 

Of course, either company could likely spend its way to a big EDD market share, even with “me too” technology.  That does not appear to be their strategy and EDD is small beans compared to web searching or software, so it seems unlikely to me. 

TPL:   And what do you think is at the forefront of the discovery process, the most important thing, the biggest challenge? 

RF:     I think the biggest challenge and opportunity is creating a consistent, reproducible, documented, and defensible approach that integrates the best of technology and standard processes.  The challenge is not who has the best algorithm, the best software, or the best reviewers.  Rather, the challenge is putting algorithm, software, and reviewer together into an economically affordable, statistically sound, and judicially defensible process.  And that must be done in a consistent, repeatable, industrially controlled process.  Think workflows, documentation, training, metrics, formal quality control, feedback loops, sampling, etc. 

Oh, and let’s not forget that the end-game is not doc review and defensibility.  The end game is telling the best story in litigation, or avoiding needless litigation when a settlement might make more sense.  So the challenge for the legal market is to re-focus from discovery to fact-finding and story telling.  With the right process, lawyers will be able to stop worrying about doc review and possible sanctions and instead focus on figuring out who said what and when and interpreting the facts as favorably as possible.    

Discovery used to be a side show and moved into the main ring in the last decade.  I don’t think that will last. 

TPL:   Ron, we greatly appreciate your time.  We’ll chat more at LegalTech. 

RF:     I appreciate the opportunity to share my views.  And more importantly, I think it’s great that the Posse List has become a key voice in the discussion around e-discovery, bringing together interviews, news summaries, and resources that advance the field and help contract lawyers find work. 

Note to readers and attendees of LegalTech in New York:  On February 1, 2, and 3, in New York, as part of the Legal Tech show, Integreon is exhibiting at booth 324 (first level of exhibits).  Also, many senior Integreon EDD and middle office outsourcing professionals will be at Legal Tech.  If you would like to connect with Ron or anyone else from Integreon, during LegalTech, contact Ron at marketing@integreon.com.

The January issue of the Journal of the American Society for Information Science and Technology has an article by Herb Roitblat, Anne Kershaw, and Patrick Oot describing a study that compared computer classification of e-discovery documents with manual review.  It found that computer classification was at least as consistent as human review was at distinguishing responsive from nonresponsive documents. 

Anne Kershaw discussed many of these issues at the Georgetown University Advanced E-Discovery Institute last year (click here) and Patrick Oot presented some preliminary findings from the aticle at the IQPC eDiscovery Conference in December.   We hope to interview them at LegalTech (click here). 

The documents used in the study were collected in response to a “Second Request” concerning Verizon’s acquisition of MCI.  The documents were collected from 83 employees in 10 US states.  Together they consisted of 1.3 terabytes of electronic files in the form of 2,319,346 documents.

For an overview of the study click here.  For a full copy of the study click here .

Charles Skamser, author of the blog The eDiscovery Paradigm, has blogged over the past several months about the emergence of “Hal 900 like” experiences in e-discovery and Web 3.0.   In his blog post on the study he states “one system agreed with the original classification on 83.2% of the documents and the other on 83.6%. Like the human review teams, about half of the documents identified as responsive by the original review were similarly classified by the computer systems”.   For his full post and links to his other analysis of the utilization of semantic and related technology to reduce the cost of document review through computer aided document categorization click here.

The problem for document review contract attorneys is that the results imply that using a computer-based classification system is a viable way to produce a reasonable categorization.   This development, coupled with similar work being done by Google and Microsoft, could mean that the task of document review, as echoed by Charles Skamser, “could indeed be in the process of evolving to the next level of computer aided automation”.

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.