Reported by:  Alexis Gambetta / The Posse List 

There were multiple sessions covering early case assessment (ECA) so we’ll summarize a few of them.  We followed the  General Counsel Track and attended “Data Retention Plans and Early Case Assessment-Moving Towards a More Effective System In-House” which was sponsored by Merrill Corporation.  

We also attended the session “Advanced Discovery Analytics and Early Case Assessment” sponsored by Deloitte.

And we had an opportunity to chat with the StoredIQ team who are a bit of an expert in intelligent information management and e-discovery technologies and have (in their words) “revolutionized” ECA.   But they have very interesting technology and a unique approach and they were open to a long chat so we’ll start with them.

So here’s the skinny.  The vast majority of legal cases are settled before ever going to trial.  One of the one of the most valuable and indispensable techniques used by corporate counsel is early case assessment (ECA).  The only argument remaining:  how early it should occur – as early as the initial data gathering at identification and collection, or just before review but after processing?  Or maybe when it is still at the dispute stage?

As Ursula Talley (Vice President of Marketing for StoredIQ) explained “using ECA, legal counsel can assess the merits of a dispute, formulate a legal strategy and make decisions concerning the matter before the costly process of taking the case to trial begins”.   But traditionally ECA occurs close to the review stage of the e-discovery process since it requires that data already be processed and loaded into a review system.  And if you are a contract attorney waiting to begin that review you know the galacial pace of e-discovery:  counsel first determines who is involved (custodians), then preserves and collects their data so that the initial analysis and review can begin.  Maybe.

Expensive, inefficient and prolonged.  Why?  Because collection and preservation involves manual, forensic copying of the custodian’s hard drive and a complete data dump of the custodian’s archived email and documents into a central repository.  Only then can processing and analysis be performed to ready the data set for a first pass review. 

StoredIQ refers to performing ECA “in the wild” meaning where the data natively resides, and the need to have the ability to perform incremental collections. This eliminates the need to repeatedly collect the same data from custodians that are frequently subject to e-discovery requests. 

They have a product (surprise!) to address all of these issues and the product is called  StoredIQ Analyze Anywhere.   In brief: it enables ECA prior to preservation and collection, without requiring the movement of data from where it natively resides. This powerful ability to perform early case analysis on data “in the wild” to give legal counsel the ability to assess the merits of a dispute, formulate a legal strategy, etc., etc.  The goal is to make decisions concerning a legal matter significantly faster than traditional ECA.  What you are doing, in effect, is conducting ECA at the earliest stages of e-discovery without having to migrate ESI from various sources into a centralized repository. 

The interesting part is that StoredIQ has a data classification technology so that the business context of data in its native location is not only available to the ECA user, but is also captured and pushed downstream to traditional review tools enabling a more contextual review experience. 

This is important because as we learned at the Merrill Corporation session the ability to perform in-place ECA must be complemented by an e-discovery workflow that provides a simplified and efficient way to cull potentially matter-relevant data.  You need to process and analyze large initial data sets with user-friendly analysis features to help make sense of a mass of information.   

The Merrill panel was moderated by Daniel Pelc of Merrill and included Wendy Curtis, Esq. (Special Counsel, Orrick, Herrington & Sutcliffe) and Paul Weiner (a shareholder with Littler Mendelson).

The panel started off with a definition of early case assessment as follows:

Early case assessment can be defined as the following: “the implementation of litigation analysis and management protocol that provides for the assembly and review of appropriate information on an expedited basis (30‐90 days) in order to provide a preliminary assessment of the case and the optimal method for proceeding.”

They also discussed that the technology behind ECA has changed drastically over the past years. The number of competitors has risen and partnerships between ECA vendors and providers within the ECA vertical has exploded.

This was the most interesting aspect (for me) because the panel went through the beginnings/sources of ECA and search and put it all into perspective, explaining its development being from two sources:

The Legal Concept:  FRCP 34 includes electronically stored information (ESI) in its definition of a document.  Counsel must “scope” or “assess” the size of their client’s relevant ESI that must be produced in any given case.  See, for example, PhoenixFour, Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006) (click here).  In order to determine what documents are relevant, counsel must cull and apply search terms to client’s data to produce rlevant documents. Large data sets were first processed, culled and then searched, which was very costly.

The Technological Concept:  Client’s data was (and is) unstructured.  Client and counsel had difficulty locating all relevant documents in a case.  Costs were high to comply with discovery obligations.  ECA tools, originally created as part of  records and information management (RIM) systems were used to structure and capture client’s data and/or locate, via culling and search terms, to find relevant data prior to processing.  Result: only relevant documents processed and reviewed = Large cost reduction.

So these early ECA methods left you with:

Processing side:  untargeted custodian interviews/untargeted data identification/untargeted preservation and processing/“brute force” review/no lasting value to case

Technology sde:   limited culling and searching capabilities over limited number of repositories/keyword searching only (no concept searching tools)/limited or incomplete data clustering

So that brought a new “proactive” approach to ECA resulting in:

Process Driven (Strategic): RIM/Document Retention Plan (DRP)/e-discovery Response Plan (EDRP) including litigation hold policies and procedures/leverage existing DRP and EDRP to prepare for and conduct ECA

Technology Driven (RIM and Analysis):  leverage existing technologies (RIM technologies, dynamic Data Mapping, and embedded or overlaid ECA tools) to prepare for and conduct ECA/targeted preservation and review thru data sampling, analytics and metrics/preserve, hash and collect relevant data/establish defensible audit trails and logs

And the big thing was search methodologies of which there are now a gazillion.  Ok, they told us about 15:

Boolean searches (and, or, not)

Wildcard searches (*auto*, *tion)

Proximity searches

Thesaurus/Synonym search

Fuzzy searching

Stemming

Statistical searching

Conceptual searching

Content-based searching

Topical searching

Weighted relevance searching

Adaptive pattern recognition

Associative retrieval

Natural language or non-boolean retrieval

Clusters of related phrases

The problem with searches, though, as the panel warned was the result.  Quoting Sedona:  “Sedona: “The use of search and information retrieval tools does not guarantee that all responsive documents will be identified in large data collections, due to characteristics of human language. Moreover, differing search methods may produce differing results, subject to a measure of statistical variation inherent in the science of information retrieval.”

The panel moderator (Daniel Pelc of Merrill) gave us the entire Powerpoint presentation which includes all the notes and slides and it is a treasure trove of information on ECA, search, and more.  You can access it by clicking here.

Postscript:

The StoredIQ software was extremely interesting to us because while the company was flagging it as early case assessment software the reality is that the ”in the wild” approach actually means you can analyze your situation well before preservation and collection, without requiring the movement of data, from where it natively resides.   And this means, says Ursula, you have the ability to assess the merits of a dispute before it event becomes “a case”.   StoredIQ is in the vanguard of companies like CaseCentral and eTERA Consulting who are moving beyond (off?) the left side of the EDRM into early information assessment.

We’ll have an in-depth interview with Ursula later this month and you’ll learn more about  the ”in the wild” approach.

The industry buzz about the EMC/Kazeon link-up was chatted about and rumored for some weeks (and the hot topic at the bars at ILTA last week).   Here are a few articles examining the whys’n and whatfors:

The press release from EMC and Kazeon  http://snipurl.com/rkh3n

The EMC blog: their view on the deal  http://snipurl.com/rllx6

Why EMC bought Kazeon http://snipurl.com/rkguv

Update: EMC Paying $150 Million For Kazeon Systems http://snipurl.com/rkgm4

EMC ‘Stitching’ Its Stack With Kazeon  http://snipurl.com/rkh2e

Marrying ECM and E-Discovery: EMC and Kazeon http://bit.ly/p1IuM

The analysis is just beginning so we’ll add more articles as they appear.

Last night’s and this morning’s lead story in the legal media:  800 law firm jobs lost in one day.  And there will be more firings to come (click here for a sample).    For the contract attorney market there is a little gloating and perhaps a little schadenfreude.  Especially in the switch by AmLaw 200 advisers who first spoke about “the stigma of contract attorney work” and who have now changed their tune to “well, maybe temping ain’t half bad” as so ably chronicled by Gabe Acevedo in his blog Gabes Guide (click here).

We’re a bit bemused ourselves by the sudden surge in Posse List membership, a large percentage of that increase being ex-AmLaw 200 folks based on the resumes we are receiving.  How much of a threat they will be (will agencies want them?  will law firm want them?) remains to be seen.  A bigger threat is probably going to come from the associates who are still at firms and are using document review as a way to maintain their billable hour requirements.   Paralegals on The Posse List have told us that is happening and that firms have “altered the value” (reduced the bill rate?) to clients. 

The bigger threat to contract attorneys continues to be legal process outsourcing (read: India, mostly).   It’s been going on, really, since 1995.  It took off like a shot in 2001 but seems to have ramped up in the last 5-6 months and was recently stamped “ok” by the ABA opinion along with the 4 collateral state bar opinions, although ABA journal articles from 2005 and 2006 touted off-shoring as a necessary and integral part of law firm management.

Of major recent interest is the new Limited Liability Partnership Act in India (passed last month) which paves the way for foreign law firms to set up shop in India (click here and here).    But it’s not so much the “setting up shop” aspect that intrigues us.  Looking beyond that, it will allow the big UK and US law firms that have been pushing the Indian authorities to change to set-up internal LPO units.   This is not lost on the more savvy Indian LPOs who are scrambling to be in a position to set-up turn-key operations for law firms.   We think an element of off-shore outsourcing is here to stay despite the expected (hopeful?) economic recovery,  just as the traditional document review centers of DC and NYC have lost business to the less expensive venues of Chicago, Pittsburgh, Hosuton/San Antonio and the Carolinas . 

But India is beyond the scope of this posting and will be addressed in a much more detailed posting next week as we attempt to provide the history, scope and future of that aspect of outsourcing (we’ll ignore the growing LPO industries in Egypt, the Philippines and South Africa for the moment).

And perhaps the reality is that a client may not really want to send its work overseas, that these outsourcing discussions really highlight a client’s desire to simply seek lower cost alternatives, including sending work to smaller firms and “farmshoring” —- working with law firms in smaller metropolitan areas where billable rates are lower but quality is just as high, or going with niche firms.

But is all this just due to a brutal economic patch?  Will things “return to normal” and will AmLaw 200  alums return to their happy lairs?  Is there a tectonic shift going on which is now only apparent because of the economic maelstrom?  And what does this all mean for the contract attorney market?  What are the trends?

One of the immediate trends is one we stated in our post-LegalTech review which was that vendors expect a shakedown of the EDD market in the next 12-to-24 months, leaving a handful of big players as opposed to the hordes filling the booths this year. With so many vendors, it’s clear the competition is fierce.  Gartner recently published a detailed market study on the entire e-discovery software/technology industry outlining this shakeout (click here)  

For contract attorneys, it means increasingly streamlined reviews because the level of competition among the software providers is forcing them to spend a lot of time and money into creating products that make them stand out from the rest and ultimately produce more accurate and efficient means of conducting searches as well as more tools to monitor and control costs (including performance metrics).

That, coupled with the “meet and confer” philosophy we discussed in an earlier posting  puts pressure on the parties to devise a very focused (and hence shorter) discovery process.

A second immediate trend is that covered by Charles Skamser in this blog The Ediscovery Paradigm Shift which discusses, amongst other things, the transformation that is going on within the legal market in regards to the paradigm shift of e-discovery being brought in-house by corporations and their use of EDDs to build in-house centers, as evidenced lately by the Kazeon/Suburu match up (click here).

This parallels our LegalTech discussions with in-house counsel who said more legal work is staying inside corporate legal departments and moving away from law firms.  As we profiled in a post a few weeks ago, ACC members have reported a much larger use of contract attorneys in-house, especially in doc reviews and compliance projects.  EDDs have probably made more headway in this than staffing agencies, especially in the early case assessment software area and the “preventive software” area such as data mapping programs.  As several in-house corporate lawyers told us “we’re the front line in e-discovery” and “we need to be in more control, not outside counsel”.   They said “we need to get our digital houses in order” with a dedicated e-discovery coordinator in place.  Well, that’s the mission anyway. 

But doesn’t it appear there really is a tectonic shift going on which is now only apparent because of the economic maelstrom?  We believe there is and no one captures this better than Richard Susskind in his recent book  The End of Lawyers?: Rethinking the Nature of Legal Services  which relates how technology, collaboration, globalization, and other forces are changing the fundamental rules by which legal services are bought and sold.  It’s a sequel to his 1996 book The Future of Law which was right on target in it’s predictions on how the law would be transformed by IT.

And no one covers this tectonic shift better than Jordan Furlong in his blog Law21  which are his “dispatches from a legal profession on the brink”.  Jordon recently reviewed the Susskind book and he’s given us permission to post an excerpt:

The book is characterized by several key observations about how the legal marketplace is being transformed, with three especially significant ones:

1. The identification of an evolving and fluid spectrum of legal services categories: bespoke (one-off, customized or tailored), standardized (drawing upon precedents, process or previous work), systematized (reduced and applied to automated systems), packaged (systematized services exported to clients) and commoditized (packaged services so commonplace as to have little or no market value). Most lawyers insist that their services cluster around the left-hand end of this spectrum; Richard convincingly argues that movement to the right is inevitable for many types of legal services, with profound implications for lawyers’ business models.

2. The decomposition of legal tasks into component parts that can be delegated to various sources, few of them actual law firm lawyers. Twelve types of destinations for this multi-sourcing (reminiscent of unbundling) are identified: in-sourcing, de-lawyering, relocating, offshoring, outsourcing, subcontracting, co-sourcing, leasing, home-sourcing, open-sourcing, computerizing and no-sourcing, each of which is explained in more illuminating detail. Despite this multiplicity of legal work performers, an overarching entity responsible for managing the work must exist, and all the systems and processes involved must work together seamlessly.

3.  In the context of astonishingly deep and rapid technological advances, the emergence of no fewer than ten disruptive (in the Clayton Christensen sense) legal technologies: automated document assembly, relentless connectivity, the electronic legal marketplace, e-learning, online legal guidance, legal open-sourcing, closed legal communities, workflow and project management, embedded legal knowledge, and online dispute resolution. These developments offer tremendous opportunity for more efficient and effective legal services delivery; but they also represent major threats to various aspects of the traditional law firm business model.

For his full review click here.   You can also follow Jordan on Twitter by clicking here.  Jordan also recommends an equally good read,  Bruce Marcus on the massive upheaval in legal practice which you can access here.

There is a lot said in that three paragraph summary and the actual book goes into all the detail.    But it is all driven by two forces:  a market pull towards the commoditization of legal services; and the pervasive development and uptake of new and disruptive legal technologies.

Oh, and our jobs.  The problem is that everyone else has the same problems right now so there’s a need for a personal constructive approach.

And one thing happening is that many laid-off lawyers (and contract atttoneys) are shaking off the “inner hysteria” (Susan Cartier Liebel’s phrase; see below) and going solo, going independent.  See links here, here and here.

And what about being an independent contract attorney?  Possible?  Of course it is.  Hard work?  Of course it is.  But we provide just two examples of how it can be done and how successful you can be:  Kimberly Alderman at Lawyer On! The Contract Attorney’s Blog  and Lisa Solomon at  Legal Research and Writing.

And building a solo practice?  Then start with Susan Cartier Liebel and her blog Building a Solo Practice and Carolyn Elefant at MyShingle.   And check out Rex Gradeless at Social Media Law Student.

And no, we aren’t getting fees for the honorable mentions above.  We are trying to assist the Posse List membership as best we can.  You now number 13,000+ and include lawyers, law students, law firms, EDDs, legal organizations, etc.  Many of you have asked us to cover freelance and “going solo” solo opportunities .

Well, we can’t replicate all the phenomenal sites and bloggers out there that cover freelance, independent contract attorney opportunities and going solo opportunities so what we’ll attempt to do is point you the right direction.  We expect to launch our new site within the next 10 days (Lord willing and the crik don’t rise) and will incorporate a potpourri of links.  And we’ll continue our distribution of news on document review work projects, Federal government projects and the seeming endless stream of foreign language projects in the U.S. and Europe.

In the end, as Jordan Furlong and I believe, the day is coming when the appellation “contract attorney” is a redundancy.  Or as Jordan picks up the theme:  “I can see more and more ‘free agent’ lawyers working when they need/want to, coming together and dispersing on a project-by-project basis, and generally turning on its head the presumption that most lawyers work in law firms”.

Stay tuned.