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.

    Sound project management is vital to any eDiscovery matter.  Without it, data can be overlooked, budgets overrun, deadlines missed, and defensibility compromised.   To ensure that your eDiscovery matter is managed properly, you need more than just a good project manager; you need a well thought-out process that incorporates quality assessment and control.

To find out how ways you can streamline the eDiscovery process, avoid missed deadlines,  and minimize the potential for costly errors and challenges by opposing counsel, please join LDMglobal for a webinar on “The Keys to eDiscovery Project Management”.

The webinar will be held Thursday March 11th at 11:00 AM EST, 4:00 PM GMT, and will feature Maura R. Grossman, Counsel at Wachtell, Lipton, Rosen & Katz. 

LDM Global is a company we know well.  It provides services to some of the world’s largest companies.   They have an enormous footprint in the pharmaceutical industry vis-a-vis e-discovery work.   We have been working with them in both the U.S. and in Europe in their search for project managers.   They “get it” as far as the fact that different countries and courts require different formats and strategies for crafting responses.   We met their team at LegalTech New York this year, and we are meeting them again in a few weeks in London.   They have great resources in all aspects of discovery, from regulatory compliance to complex litigation support.

Maura Grossman is a member of The Sedona Conference® Working Groups on Best Practices for Electronic Document Retention and Production, and on International Electronic Information Management, Discovery, and Disclosure.  She assisted in drafting and editing The Sedona Conference® Commentary on Achieving Quality in the E-Discovery Process (May 2009).

This past fall The Posse List saw Maura give a brilliant presentation on the challenges of search at the Georgetown Law Advanced E-Discovery Institute (click here).  She is on the faculty of the Georgetown Law E-Discovery Training Academy where this year she gave a presentation on the mapping of the steps of the e-discovery process, an exploration of the full spectrum of procedures and strategies that might occur during the e-discovery process.

Maura is a powerhouse in the e-discovery world and this event will be well-worth attending..

You can register for this webinar by clicking here.   If you require any further details about this webinar, please contact Rebecca Dealtry, on rdealtry@ldmglobal.com  or +44 (0)20 7613 1160.   

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

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

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

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

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.

A Review of Day 2 of the ILSLC (Part 1)

As we said in our coverage of Day 1 of the ILSLC (click here) the focus of almost all of the speakers during this conference was:  the fundamental problem facing the legal profession today is the search for truth and justice in a digital world.  A world where the complexity and volume of electronic information is overwhelming.

But the speakers and the seminars did not leave us in the lurch.  The conference presenters provided concrete suggestions, the central theme of each seminar being “We want you to leave with one, two, three or more actionable items you can implement tomorrow to help manage/solve your e-discovery issues and problems”.

And it was a difficult task because the audience was composed of e-discovery professionals from law firms, corporations and e-discovery vendors, each group with different needs.  But the speakers did just that:  provided suggestions/guidelines for managing the litigation/e-discovery process across the enterprise and/or law firm and/or service provider.  

It was made “easy” because all the e-discovery industry “pros” were there (click on a name to learn more about the person):   Craig Ball, the leading expert e-discovery consultant and computer forensic expert;  Albert Buckwalter, editor of Litigation Support Today magazine and organizer of the conference;  Julie Brown, Litigation Technology Manager at Vorys, Sater Seymour and Pease; Brett Burney, Principal of Burney Consultants; Kevin Carr, President of InterLegis;  David Kessler, partner with Drinker Biddle & Reath; Laura Kibbe, Senior Vice President of Epiq Systems; Ralph Losey, partner in Akerman Senterfitt; Mary Mack,  Corporate Technology Counsel for Fios Inc.; Browning Marean, partner in DLA Piper; Bruce Markowitz, Director of Litigation Support at McKenna Long & Aldridge; Mark Mayerson, partner at Spriggs & Hollingsworth; Mary Pat Poteet,  Director of Litigation Support at DLA Piper; George Rudoy, Director, Global Practice Technology & Information at Shearman & Sterling; Alison Silverstein, Managing Director with UHY Advisors FLVS; and George Socha, President of Socha Consulting and developer of the Electronic Discovery Reference Model.

And the event covered all the issues involving foreign language components of e-discovery and European and Asia e-discovery issues with experts like Lillian Clementi, Managing Principal of Lingua Legal; Todd Haley, Vice President of E-Discovery at ePIC; Conrad Jacoby, founder of efficientEDD; Scott Merrick, International Marketing Director of LDM Global; Nigel Murray, Managing Director of Trilantic; and John Tredennick, CEO of Catalyst.

And on the litigation support/e-discovery employment side we had David Cowen of The Cowen Group;  Ari Kaplan of Ari Kaplan Advisors; Patricia Lucas, Records/Litigation Support Manager at Patton Boggs; Shimmy Messing,  partner at Responsive Data; Margaret Morton, Practice Support Coordinator at Morrison & Foerster; Rebecca Prince, Litigation Technology Manager at McDermott Will & Emery; and Josh Sacks, Managing Director of Peak Litigation.

So, those are the introductions.    What did they say?  Well, much was covered, with some seminars overlapping.   We tried to cover as many of the events we could.  Rather than review seminar-by-seminar we’ll summarize what we learned over the two days, the material covered and present a series of bullet points. 

Herein, Part 1 which will cover major points on managing the e-discovery process:

POINTS MADE ON MANAGING E-DISCOVERY

*  Managing electronically stored information (ESI) is an enterprise-wide activity that requires uniform records management policies and the technology infrastructure to automate and enforce them.  It is imperative because the cost and risk of failure to do so is enormous.  The first step in meeting the Federal Rules of Civil Procedure (FRCP) and subsequent Federal Rules of Evidence (FRE) changes is for senior management, including general counsel, to become actively involved in setting ESI management priorities, launching ESI initiatives and funding those initiatives. ESI is spread throughout the enterprise and any of it could be relevant in a legal matter. The starting point for most organizations trying to gain control over e-discovery is existing litigation.  Selecting a system where data aggregation is efficient is important to a successful strategy.  The next step might be to identify those functional areas that are likely to contain the greatest volume of information relevant to certain types of litigation.  Human resources, for example, typically stores a lot of ESI that may be relevant in wrongful termination law suits.  Likewise, product manufacturing documents such as standard operating procedures are of great interest to during product liability litigation. Tape backup and email archives are also rich sources of ESI for litigation. These areas are the  “low hanging fruit” to address when launching an ESI initiative that is driven by e-discovery pressures.

* If you were able to attend and link all the seminars, and read all the handouts, you got a nice review of the FRCP and FRE:

   FRPC Rule 16(b)- scheduling order.  With the new emphasis on ESI, the court moves discussions of e-discovery issues to the forefront. Likely topics would be the breadth of disclosure, time to produce and claims of privilege after production, as noted in Federal Rule of Evidence (FRE) 502.

    FRCP Rule 26(a)- initial disclosure.   The court and the requesting party will want to know the nature of your ESI systems and what procedures you have in place for searching, locating and retrieving documents. For example, the requesting party might ask what your enterprise-wide document retention policies are, so it is best if those retention policies already in place.

     FRCP Rule 26(f)- quick peek risks.   If you cannot demonstrate that your ESI policies will yield satisfactory results during discovery, the court may demand a “quick peek”,  a sample of documents to help resolve initial e-discovery questions. Without a comprehensive ESI strategy in place, the -quick peek‖ raises a variety of issues such as: What are the implications regarding privileged designations? How large is the sample and how is it chosen? What standards are used to evaluate the results of a quick peek? 

    FRCP Rule 26(f) – preservation.   The court will have to strike a reasonable balance between the duty to preserve and the realities of dynamic computer systems – the contents of which change daily – that may contain multiple copies of many documents. 

     FRCP Rule 34(b) – forms of production.  ESI applications often use proprietary data formats, and without the proper software application, the information it contains can be useless.  This raises the question:  in what form should ESI be produced?

      FRCP Rule 26(b)(5) and FRE 502 – clawback.   The Amended Rules and subsequent FRE 502 provide some post-production protection for information erroneously produced though privileged, but there are some requirements to be met.  Failure to meet these may waive the privilege or protection. This puts the burden on corporate counsel to define standard clawback processes, and discuss them early-and to recognize quickly when inadvertently produced privilege material has been produced.

      FRCP Rule 37(f) – safe harbor. The rules allow safe harbor protection against loss of data from computer systems operations operated in good faith. But good faith operation of an information system requires an information management policy that is regularly followed. Without such a plan, the court may require computer systems to be shut down in order to prevent destruction.

*  One point raised time after time was that you must have a centralized, multi-matter review platform.  A centralized review platform enables corporations to apply the principles of process efficiency to every stage of discovery -making e-Discovery a defensible, repeatable business process. A repeatable business process is reasonable and defensible, which is what companies need in order to be compliant with FRCP guidelines.

* Litigation holds.   A “litigation hold” is a suspension of a company’s document retention/destruction policies for those documents that may be relevant to a lawsuit that has been actually filed, or even one that is “reasonably anticipated.”  A “litigation hold” ensures that relevant data is not destroyed and that key employees are notified of document preservation requirements. Even informal procedures for managing print or electronic documents, such as recycling e-mail backup tapes, must change when a company is sued, or even threatened with suit.  When does the duty to preserve arise and what does it cover?   The duty to preserve arises, in general, when a party is alerted that certain information is likely to be sought in discovery. This may occur, for example, upon receipt of a complaint, upon receipt of a demand letter; or upon receipt of a “preservation letter” expressly requesting that certain documents be preserved.   Generally, all information relevant to the claims or defenses of any party in a lawsuit or which is relevant to the subject matter involved is covered, including print or electronic copies of documents, copies in a document storage system, on computer hard drives, or on e-mail backup tapes. It also covers documents in existence at the time the duty to preserve arose, and those created after the duty to preserve arises.

There was much discussion on two recent cases that provided clarity … and also provided “foggity”.  These are the Phillip M. Adams case and the Mancia case.  We can’t summarize all the points made — this is a difficult area — but we learned there are three vendors who provide software to assist in preservation of the litigation hold: Autonomy, Exterro and Atlas Suite from PSS Systems.

And as far as learning/knowing about litigation holds all of the speakers highly recommended The Sedona Conference paper on the subject which is discussed in the DLA Piper White Paper on litigation holds which you can access here.

* Optimizing the document review.   We heard throughout the conference that the actual document review process is 65-70% of the total cost of the ESI collection/processing management function.  We heard about all types of software (we will cover the vendor software demonstrations in Part 3) and heard about the linear review, clustering and visual analytics, as well as a great way to “test” review software:  try to use it without training.  Is it intuitive?  Do you need training?

The document review process was broken down into several steps/functions:

• Data acquisition planning
• Forensics acquisition of the data
• ESI processing
• Document review strategizing
• Matching repository review technology to cases

There was also discussion about the various reporting capabilities/metrix analysis available to track the progress of a review.  It was suggested that such a tool be separate from the actual review software, to be an “objective” analysis outside of the actual review tool.  One of the best on the market is said to be Peak Review Metrics from Peak Discovery.

Coming next:

Part 2:  things to consider in foreign language reviews, and e-discovery across the seas — and jobs

Part 3:  a review of the vendors