In follow-up to the success of its live certification program in D.C. and NYC, Catalyst is rolling out  its Catalyst CR Certified Reviewers program (CRCR) to LA next week. 

CRCR is the certification program for Catalyst CR (for information on the software click here) which is gaining significant market share and being requested by many corporations and law firms due to its many options and easy programmability, and its multi-language capabilities.

THERE IS NO FEE FOR THIS TRAINING.  THESE ARE IN-PERSON TRAINING SESSIONS AND SEATS ARE  LIMITED SO REGISTER AS SOON AS POSSIBLE.  THESE SESSIONS FILLED QUICKLY IN D.C. AND NYC.

The training will take place at the offices of Compliance Staffing, 915 Wilshire Blvd, Suite 2150, Los Angeles, CA 90017.   There will be the following sessions:

May 25th        Session 1:  1:00 p.m. to 4:30 p.m.

May 25th        Session 2:  5:30 p.m. to 8:30 p.m.

May 26th        Session 1:  1:00 p.m. to 4:30 p.m.

May 26th       Session 2:  5:30 p.m. to 8:30 p.m.

May 27th       Evening session only:  5:30 p.m. to 8:30 p.m.

There will be a 15-minute break during your session, and snacks will be provided.  

TO SIGN UP CLICK HERE:  http://www.catalystsecure.com/posse-list-registration.html 

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.

Catalyst Repository Systems announced that its inaugural Certified Reviewer Training, recently held in Washington DC, was so overrun with registrations that the company added two additional sessions in attempt to meet the demand.

“We were thrilled with the enthusiastic response,” said Patty Daly, Catalyst’s Director of Training. “After the first round of sessions filled up, we decided to add two more trainings and those filled just as quickly. Eventually, we had to turn people away.”

The training was held for members of the Posse List.

For the full press release click here.

An excellent program for contract attorneys, law firms and in-house counsel.

Catalyst’s consulting team will share best practices on how to find potentially-privileged documents, defensible ways to maintain privilege, and techniques to reduce the time and expenses associated with privilege review.  The presentation will include:

* Creating queries to find attorney names, email addresses and firm names.
* Using Correlation Navigators to find and tag privileged email addresses and domains.
* Using SQL database analysis to identify patterns of emails between in-house counsel, outside counsel, management and others.
* Clustering potentially privileged documents for quick review.
* Developing a QC and sampling process that helps you check ‘just one more time’
* Redacting partially privileged documents.
* Creating a privilege log automatically as you review.

To register click here: http://snipurl.com/t1idl

The Catalyst CR Certified Reviewers program (CRCR) certification program for Catalyst CR which we announced yesterday (see details immediately below) has added an additional session:

                        OCT 6: 1:30 pm – 4:30 pm

You can sign up for this additional session by clicking here.  The first 3 sessions we announced yesterday filled in 2 hours so Catalyst decided to add another session.  Please register as soon as possible because we expect this one to fill up quickly, too.

Now, in answer to your many, many emails:

1. The sessions above are live sessions being conducted by Catalyst trainers. These are not webcasts/webinars.

2. Catalyst will be setting up webcasts/webinars in the future for the same certification program. We will inform you when they are set-up.

3. However, Catalyst will be rolling out “live” sessions in Atlanta, Chicago, Dallas, Houston, Los Angeles, New York, Philadelphia, San Francisco and several other cities. We will provide details on these programs in the future.

4. Also, we will be rolling out certification programs for other document review software such as Attenex, Clearwell, iConnect, Relativity, etc. We will provide details on these programs in the future. You can appreciate that the logistics of this enterprise are daunting and we are working diligently in providing this service.

Lastly, the second phase of this effort will include:

1. Webcasts and webinars from vendors such as Orange Legal Technologies so you can understand how the whole process of analytics, processing and review work together. Too many contract attorneys and paralegals enter e-discovery in a vacuum with no training or understanding how all the moving parts fit together.

2. Live seminars and webcasts and webinars from law firms in such areas as the FCPA, principles of attorney-client privilege, the merger process, etc. These are all subjects we encounter on projects yet we have little training on any of these areas.

3. A new page on the Posse List called “Briefing Notes” in which we provide background articles and comments on projects you are probably reviewing, or about to review. We start tomorrow with “Anatomy of a Merger: the Kraft/Cadbury deal”, a look at a deal much in the press; they are about to make a deal, it will be a whopper of an antitrust review and it will be coming (eventually) to a law firm near you. Next week we take a look at a project that many of you in DC are on: the Delta/USAir slot trade deal.

So stay tuned: we have much to tell.

As we have indicated in numerous posts, employers (law firms, corporations, agencies, e-discovery vendors) have increasingly requested contract attorneys to have experience with specific software for document review projects.  This is due to:

1. a shakeout of the EDD market forced by the level of competition among the software providers

2. which has led to the creation of better e-discovery products

3. resulting in more sophisticated document management/document review software

4. including more accurate and efficient means of processing data, conducting searches, monitoring costs

5. and leading to several e-discovery vendors leading the pack as “preferred” partners.

We have met with scores of vendors at LegalTech, ABATech, ILSL, ILTA and ACC events and we have spoken with scores of law firm litigation IT departments and in-house legal departments and there has been a need (and a request) for contract attorneys and paralegals to be certified on software.

So it is our intent to sponsor “live” software certification programs in several cities, with parallel certification webinars for those that cannot attend the live certification programs. 

All programs will be free to participants. 

We launch this program with the Catalyst CR Certified Reviewers program (CRCR), the certification program for Catalayst CR (for information on the software click here) which is gaining significant market share and being requested by many corporations and law firms due to its many options and easy programmability, and its multi-language capabilities.

The live certification program will be held in Washington, DC on October 7th and it will be hosted by ClutchLegal.  Participants in the CRCR will be trained on review using the CR Assigned Review Module and take an examination, testing them on their knowledge of review using Catalyst CR.  Those who pass the exam receive the status of Catalyst CR Certified Reviewer.

NOTE:  seating is limited and we expect registration for these live seminars to fill quickly.  Please register as soon as possible.  

There will be two training sessions:

1.         October 7^th    1pm to 4pm

2.         October 7^th     5:30pm to 8:30pm

If these two sessions fill up Catalyst will offer an additional session the evening of October 6th.   For full details and to sign up for the Catalyst CR live program click here.

We will follow-up later with information on the live programs in other cities, and the parallel certification webinars.  If you are a law firm, staffing agency, e-discovery vendor or other legal vendor interested in joining our certification program series (live or via the web), please email us at manager@theposselist.com.  Please note that all programs must be free to participants, you must arrange a venue (although we may be able to assist since many venues across the country have offered their facilities) and you must provide refreshments for participants.

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

The 32nd annual educational conference of the International Legal Technology Association (ILTA) starts today, August 23rd.   This year it is at the Gaylord National just outside Washington, DC in National Harbor, Maryland.

It is considered one of the premier events for ILTA members and decision-makers to come together to share their experiences as technology leaders to talk about how they best use leading technologies, and how to best optimize the value of IT in law firms and law departments.

And given the explosion of work in Europe (click here) and growing work in Asia (click here) which we have reported extensively, there will be much to learn.

It is a four day event and the Posse List team will cover as much as it can.   Content goes across 26 tracks, and it is regarded as the place to make connections.    The registation fees are going to be out of the price range for many Posse List members to be able to attend.  So we will cover as much as we can.   Through the courtesy of Peggy Wechsler, Program Director for ILTA, we have been granted several media credentials for members of our staff to attend and our colleagues at Mayer Brown will be providing us additional material. 

But the Exhibit Hall (there will be 180+ vendor booths) is the place for Posse List members to see and to connect.  To see the current list of vendors click here.   There are Platinum, Gold, Silver, Bronze and Basic Sponsors.   Contact them to obtain exhibit hall passes (click here).

As we have posted, we are working in a part of the legal industry that is unusual because it is open to sharing and collaboration, through publications, quality conferences, and trade shows, and peer networking organizations such as ILTA, LegalTech, ABATech and the ILSL Conference.

Posse List members are a vast store of untapped creativity, expertise, and wisdom.  We all know that.  Go out and make connections.   Show people your value, your worth.  Don’t be negative.  And review our suggestions to “get out there” (click here).

And keep in mind the trend we first reported last year and that has continued to grow.  It’s the movement of the lawyers who know the most about EDD and who are the best at EDD who have moved out of law firms and into the employ of EDD service providers.   This ”tectonic shift” is probably yielding a long-term result where EDD service providers will largely taking this work away from law firms and EDD will no longer be considered part of the ordinary practice of law, leaving litigation lawyers to redefine what they actually do as clients route around them to the EDD service providers who have all of the talent.

And it affects the contract attorney world.  Because one thing we have heard over and over has been amore direct trend affecting contract attorneys:  law firms and corporations have begun asking e-discovery companies and vertically integrated staffing agencies whether 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 U.S. and/or across the globe.  Can they be “the one” vendor?  And part of this is due to a sub-trend: doing the doc reviews “local” in Europe and Asia because of blocking statute rules and data privacy.

But more importantly, going to e-discovery companies – the folks processing the data from the start – and asking “…and can you staff the review?”  Which is why companies like Catalyst, eTERA, Trilantic, etc. are landing document review work.

We will be highlighting a number of vendors next week but to start two important vendors and major sponsors of ILTA:

* Catalyst Repository Systems  (click here)  – vendor of the industry leading review platform Catalyst CR

*  Fios Inc. (click here) — providing comprehensive services and expert guidance that transform the burdensome nature of electronic discovery into a streamlined, legally defensible business process.

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.

The International Litigation Support Leaders Conference starts tomorrow in D.C. for two days, May 7-8, here in D.C.  It is the industry’s premiere educational and networking event for international litigation support.  We are covering both days of the event and attending the seminars and speaking with all the vendors.

As we have indicated there has been an explosion of litigation support/e-discovery work in Europe and Asia.  In fact, The Posse List has been invited to join a trade delegation to China at the end of the month and we’ll give you all the details next week in a special post along with information on jobs for e-discovery attorneys in Europe and Asia. 

This week’s D.C. conference event has a “who’s who” of speakers in the litigation support/e-discovery universe including but not limited to:  Craig Ball, Ralph Losey of Akerman Senterfitt, Mary Mack of Fios, Browning Marean of DLA Piper, George Socha of Socha Consulting LLC, Mary Pat Poteet of DLA Piper, David Cowen of the The Cowen Group, Albert J. Buckwalter, Michael Dalewitz of Peak Discovery, John Tredennick of Catalyst, and Laura Kibbe of Epiq Systems.

And there is the roster of the leading vendors including but not limited to:  Autonomy, Catalyst Repository, ePIC, Epiq Ssystems, Fios Inc., FTI Consulting, interLegis, LexisNexis,  etc.

There are specialized sessions covering best practices in key litigation support areas including:

• Document Discovery
• E-Discovery Collection/Processing/Review
• E-Discovery Analysis and Production
• Document Processing/Data Processing
• Attorney Support
• Trial Support and Presentation
• Project Management
• Career and Professional Development
• Ethics
• Deposition Management
• Record Retention/Data Archiving
• Database Management
• Internal/External Marketing
• International Litigation Support
• Outsourcing
• Vendor Management
• Litigation Readiness
• Department Development
• Legal Holds 

We are going to try and cover it all and meet with as many speakers and vendors as we can.  We’ll make reports over the two days, plus a “wrap-up” report over the weekend. 

Our focus will be “what information, contacts and material can we provide contract attorneys to make them more marketable” and “what job opportunities are there in the industry”.  But as our membership base has grown to also include law firms, in-house legal departments, bar associations, e-discovery companies, etc. we will also try and cover issues and aspects that affect them.

And as a further note to our European membership base: we have been invited to cover the Sedona Conference in Barcelona, Spain in June (click here) where many of the same vendors are presenting.  We’ll have a more detailed “Euro view” after that conference.