15 November 2011 – As we have written before (our most recent post is here) the most common complaints from the contract attorney world is that the work is mind-numbing and monotonous, affording none of the intellectual stimulation that a lawyer should expect.  There is often little or no quality control.  What supervision reviewers get usually has more to do with the schoolroom than with the law office, and generally focuses on production levels, tardiness, talking, number and length of breaks, etc.  Under those demoralizing conditions, mistakes are inevitable, and careless, unprofessional work is common. The result is the infamous McDermott case which has become a prime example of the myriad ethical problems in modern, assembly-line document review.   

Expanding on this theme, but with much more detail and with positive suggestions about what can be done and should be done, is Lawrence Chapin, an attorney with forty years experience in the law who has been working, for the last eighteen months, as a contract review lawyer on projects in New York City and Richmond, Virginia.  He is also a recent graduate of the e-Discovery Team Training program run by Ralph Losey.

In a special post on Ralph’s blog, Larry emphasizes that contract reviewers should become/can become more valuable to a project when they are wisely employed in a project.  Their talents and potential contributions to a project are often wasted.  

We all know that technology is driving much of the drudgery in document review.  But technology has become so important to the industry.  We recently attended the two premier corporate counsel events of the year, the IQPC Corporate Counsel Exchange in Amsterdam  and the Association of Corporate Counsel annual meeting in Denver which we will detail in two lengthy posts in the next two weeks.   Between the two events we had the opportuntity to chat with 35+ corporate counsel (we’ll include some video interviews in our upcoming posts) and discussed everything from the new role of corporate counsel, the overall need to reduce corporate legal spend, third-party funding of litigation, privacy issues and social media, and … most importantly … the technology they have brought in-house to control e-discovery cost and the technology their outside attorneys and consultants use overall for e-discovery.   One of the overriding themes from both events was:  “yes, we need lawyers (both in-house and temporary) but lawyers who are data geeks!!”  And by that they meant attorneys who can handle the technical aspects of modern legal data analysis, who have some computer science background, statistics and math skills, who have or can learn the skills for legal data visualization, imaginative ways to turn legal data into actionable intelligence. 

So could technology help to redeem the contract attorney industry?  Larry seems to think so.  He makes numerous excellent points and we urge you to read his full analysis.  For the full post click here.

1 August 2011 – Over the weekend we posted an update on the McDermott e-discovery malpractice case involving contract attorneys, vendors and privilege.  The case involves a allegedly botched privilege review.  For that post click here. 

The response from the List was enormous.  We received 980+ emails commenting on our post and the case.  

We have written a number of posts about the technological changes that have reshaped the legal industry (we hesitate to call it a profession) with a focus on what Richard Susskind, Ralph Losey and Jordon Furlong (among others) have wriiten about these past few years:  the deep and rapid technological advances (of the disruptive kind) that have led to relentless connectivity, the burgeoning electronic legal marketplace and the “decomposition of legal tasks” into component parts that can be delegated to various sources: in-sourcing, relocating, offshoring, outsourcing, subcontracting.  It has led to reducing costs for repetitive processes such as regulatory filings, document review, etc.  It has simply commoditized large sections of the law, especially document review. 

The law simply became another business, just a Law Factory.  It took the precepts of Clayton Christensen’s The Innovators Dilemma who introduced one of the most influential business ideas of our time — “disruptive innovation”, penned in 1996.   In the case of document review law firms adopted the cost-saving manufacturing principle of “just-in-time” production, and applied it to a service industry: hire attorneys “just when you need them” but only on a short-term, part-time basis.  And to make it even further removed from any hint of a profession move it to “managed review” and document review centers and out of the realm of law firms.

Result?  The McDermott case.  As many of you wrote, this case is a prime example of the myriad ethical problems in modern, assembly-line document review.   

And that’s what document reviews are today: performance under under assembly-line conditions by temps (not always lawyers) who often work 60 or 70 hours a week, ten or twelve hours a day, at rates ranging from $12.50 to $35 an hour (for English-language reviews) who are summarily fired if they fail to meet arbitrary production quotas. 

As several of you wrote:  “the work is mind-numbing and monotonous, affording none of the intellectual stimulation that a lawyer should expect.  There is often little or no quality control.  What supervision reviewers get usually has more to do with the schoolroom than with the law office, and generally focuses on production levels, tardiness, talking, number and length of breaks, etc.  Under those demoralizing conditions, mistakes are inevitable, and careless, unprofessional work is common.” 

A large number of you  pointed out reviews in DC and New York where reviewers were improperly instructed on privilege by  junior associates and/or case administrators who obviously did not know the difference between the attorney-client privilege and the attorney-work-product doctrine.  The general response?  Above our pay grade.  Don’t target yourselves by pointing out that masses of privileged communications that will be produced as a result.   We need this job.

The “schoolroom” working conditions and poor training can only be demoralizing for lawyers and will do nothing but produce indifference to standards of “professional” competence.

And as several of you said “instead of addressing these problems by improving working conditions, quality control, etc., the legal staffing agencies seem to be responding by requiring temps to sign indemnification agreements, whereby the temps agree to hold the agencies and their clients, the law firms, harmless against all claims arising out of the temps’ work”.  Normally, employers buy liability insurance to cover the errors and omissions of their employees.  This oppressive tactic reverses that arrangement, and makes the individual employee the insurer of his or her employer and its client. 

And let’s face it:  temps aren’t paid enough to cover malpractice insurance, so those who sign such contracts are simply hoping nothing bad will happen.  The McDermott case names 100 John Doe lawyers as defendants, presumably referring to the temps who worked on that review.  But one good thing is that according to Hudson they do not require temps to sign indemnification agreements.  If they had, those 100 John Does would be looking at the possibility of thousands of dollars in personal liability, for which McDermott’s malpractice insurer would certainly pursue them.  Remember that when asked to sign an indemnification agreement.

The case slogs on.  We keep you up-to-date best we can.

30 July 2011 — As we had reported in a previous post, the world’s first e-discovery malpractice lawsuit was filed in State Court in California against McDermott Will & Emery.  The case has been rocketing around the internet, striking fear in the heart of the e-discovery community.  The case involves a privilege filter through which all the collected documents were reviewed that reportedly was botched and resulted in McDermott delivering to the US government “documents that were not responsive to [government] subpoenas and were also attorney-client privileged.”  An amended complaint has just been filed with more details about the review, the contract attorneys hired, etc.

For a summary of the case from the Association of Certified E-Discovery Specialists web site click here.

For some excellent analysis on the case (plus much more) from Ralph Losey (with some cool links to Lady Gaga) click here.

7 March 2011 — In case you missed it over the weekend, the New York Times published an article titled “Armies of Expensive Lawyers, Replaced by Cheaper Software” which discussed the “new e-discovery software that can analyze millions of documents in a fraction of the time, and at a fraction of the cost consumed by human lawyers, even deducing patterns of behavior”.   It discussed issues that are not news to us in the market:  the explosion of electronically stored information, the technology used to analyze that data (mentioning Autonomy, Blackstone Discovery, Cataphora and Clearwell Systems) and how all this has disrupted the legal job market (on the heels of the legal sector losing 2,900 jobs in February in the latest report).  

For the full New York Times article click here. 

And as the article rocketed across Twitter, Facebook, JDSupra, etc. over the weekend a number of the leading lights of e-discovery and technology offered their critiques of the article.  Here are just a few: Ralph Losey, Ron Friedmann, Randall Parker and Stephen Levy.

As we have discussed in numerous past posts, the significant impact of this technology has been not on what the New York Times calls the “expensive” lawyers but on those of us in the lowest paid band  -  contract lawyers. 

When we started The Posse List in 2002 our base was contract attorneys, the lawyers who worked on document review and production — the “right side” of the EDRM.   These cases required an army of attorney and paralegal document reviewers — called in like a “posse” at the last minute, as needed.   Law firms adopted the cost-saving manufacturing principle of “just-in-time” production, and applied it to a service industry: hire attorneys “just when you need them” but only on a short-term, part-time basis. 

But as document processing and analysis technology improved, the need for these large numbers dwindled.  But there was an increase in the need for greater sophistication and expertise in ESI management and e-discovery.   Now our members include contract attorneys, forensics consultants, paralegals, in-house counsel, law firm attorneys, solo practitioners, all manner of e-discovery companies, legal media entities, and numerous legal support professionals.   

The first task in any transition to to understand the technology.  All of us have been exposed to some of the technical hurdles that litigation support teams face, but you need a deeper understanding of them.  One way to do that is learn how data is processed for a case.  We post numerous webinars, webcasts and events on technical training.    

As Ralph Losey says in his critique of the New York Times article, attorneys need to retool.  Quoting Ralph: “The new technologies advancing search and review automation discussed in the story do not replace “expensive lawyers” as alleged. The new software does, however, force lawyers to learn new, more highly skilled tasks. The article seems to overlook the fact that the advanced e-discovery search and review technologies all still require lawyers to operate. They still require skilled attorneys to fit the technologies into a larger legal methodology. They still require the ESI to be understood. The software programs do not run themselves. They are only a tool. They are just a hammer, and without a carpenter, they will not build a case on their own”.

It is why at The Posse List we have been publishing posts which we hope are found helpful such as A lawyer must be a technologist and Transitioning from law practice to more technical litigation support.

You need to grasp the technical challenges that are presented by the data processing process.  Along the same lines, learn about data acquisition and preservation methodologies. You know how important a chain of custody is and why the hash value of the data you present in court needs to match what was initially acquired.  But can you make a bitstream copy of a client’s hard drive with a full audit trail? 

The biggest issue for attorneys making the transition is the need to bridge the gap between legal and technical within e-discovery.   Access our Electronic Reading Room site (click here) to bone up on the basics – and the advanced bits – of e-discovery.

And you must become technology savvy if only for the simple reason to increase your abilities, advance your career — in other words propel your personal agenda.  Donna Seyle posted an article (you can read it on JDSupra by clicking here) in which she said lawyers must “embrace technology”.  While her article was geared toward the law firm and innovation she addressed the existing situation for all lawyers:  the massively influential rise of social media marketing, blogging, networking, data management, etc. demands it.  And no more so than those of us involved in e-discovery.

It is why we set up two job listservs that post jobs for lawyers needed in various legal technology areas and legal project management (to get on any of our lists go to our home page and click on “Subscribe” in the top right-hand column).

You can do simple things like working your way through the Sedona Conference E-Discovery Glossary (now in its third edition) which is the most comprehensive e-discovery we have found.  It provides definitions/explanations of many terms commonly (and not so commonly) used in e-discovery and digital information management.  You can download it for free by clicking here. 

Or look at our weekly “Top 10 … plus more” list of interesting e-discovery blog posts, and vendor views on electronic discovery related issues which provides vendor views and industry news from electronic discovery-centric vendors and commentators (for the latest from both click here).

And go to a legal technology conference near you.  All offer free admission to the exhibit hall (those that have them) where you can meet technology vendors, see the technology at work behind e-discovery, etc.  Many allow free access to students or limited 1-day passes for free admission.  We attend about 15 conferences a year in the U.S., and about 8 in Europe and Asia.  We meet vendors, gain info — and sign up vendors who post jobs on our job lists.  There are conferences all over the country and the world and we post a list every week.

Our membership list is diverse – contract attorneys, forensics consultants, paralegals, in-house counsel, law firm attorneys, solo practitioners, e-discovery companies, legal media entities, and numerous legal support professionals — and we are trying to be helpful to all of our members.   

5 January 2011  - Many legal pundits have repeatedly called for teaching e-discovery at law schools.  No one in the e-discovery world can miss what the digital information revolution has done to dramatically alter the discovery process.  Nobody has beat this drum more loudly than Ralph Losey, a reigning e-discovery guru (click here).

But if you don’t want to wait for your law school  …. or you are well beyond your law school years but need to catch-up on e-discovery … Ralph Losey has come upon the answer.  Ralph is launching a new online mass collaborative e-discovery program and The Posse List is assisting to spearhead the effort.

We are not providing academic credit or certification (but some state CLE accreditation for practicing lawyers may come later; Ralph’s working on it).  The judges’ panel at the recent Georgetown Law Advanced E-Discovery Institute discussed how superfluous subject-matter certification would be.  They preferred well-grounded CLEs and training programs. 

Ralph’s e-Discovery Team program is just that, but it’s online. You study at your own time, your own place, your own pace.  The instruction includes videos from the judges who make the law (including Judge Ron Hedges, Judge Paul Grim, Judge John Facciola, Judge  David Waxse) and the lawyers who write about e-discovery everyday (Craig Ball, Jason R Baron, Steven Gensler, George Socha, Ken Withers) … just to name a few. 

What’s covered?  Everything, from Sedona to the EDRM, and the thoughts and opinions of almost all of the leading industry experts and judges. It is a basic level course, for lawyers and students alike, almost identical to the online course Ralph taught in law school this summer.   

The online course consists of sixty-one classes, called modules, and covers all key topics in electronic discovery law.  Each module takes an average of thirty to forty minutes to complete and has assignments of from one to two hours each, depending on how long the reading and research takes you. In addition, several top e-discovery vendors will soon offer supplemental instructional programs, demos, and exercises designed exclusively for the program. 

And you will have different levels to choose from so that you can elect to have a version with or without an online expert-professor interaction.  Fees will range from zero (the first quarter is free without professor interaction, so that you can try it without risk), to $1,500 for the full program. 

We’ll have a detailed post after the first of year with all the details on the levels and specific costs, the detailed syllabus, how to sign up, the special Posse List registration code, etc.

We hope it has been a good holiday season for all.

19 September 2010 — As we have stated numerous times in our ediscovery/data management “thought leaders” series (click here)  we face a tsunami of data.  For a good discussion of how this all evolved read our interview with the “Master Sensai E-Discovery Gurus” Ralph Losey and Jason R. Baron (click here)  and see their brilliant presentation Did You Know which you can access on YouTube (click here).

Yes, the amount of data is staggering.  As a further recent example, an August survey conducted by Symantec revealed that just backup tapes alone are storing documents on indefinite hold in enterprise libraries that would stretch to the moon and back 13 times with enough left over to circle the globe seven times (for the Symantec survey click here)    And according to the study storing all this data makes it harder to find what you’re looking for. It is now 1,500 times more expensive to review data than it is to store it, Symantec estimates. Backup windows, meanwhile, are so overloaded that weekend backups are taking more than a single weekend these days.

So, with the accelerating increase in electronically stored information along with the changes in the Federal Rules of Civil Procedure and the courts (Federal and state) tsunami of decisions, how do you control and manage the data?  Technology.  As a result, lawyers must become technologists. 

And you must become technology savvy if only for the simple reason to increase your abilities, advance your career — in other words propel your personal agenda.

Earlier this year Donna Seyle posted an article (you can read it on JDSupra by clicking here) in which she said lawyers must “embrace technology”.  While her article was geared toward the law firm and innovation she addressed the existing situation for all lawyers:  the massively influential rise of social media marketing, blogging, networking, data management, etc. demands it.  And no more so than those of us involved in e-discovery.

It is why we launched The Electronic Discovery Reading Room (click here)  to provide Posse List members a “go to” site which (hopefully) provides the information to learn about the tech behind e-discovery.  It is why we set up two job listservs that post jobs for lawyers needed in various legal technology areas and legal project management (to get on any of our lists follow the instructions posted on our site (click here).

You can do simple things like working your way through the Sedona Conference E-Discovery Glossary (now in its third edition) which is the most comprehensive e-discovery we have found.  It provides definitions/explanations of many terms commonly (and not so commonly) used in e-discovery and digital information management.  You can download it for free by clicking here. 

Or look at our weekly “Top 10 … plus more” list of interesting blog posts, and views on electronic discovery related issues and other tech developments from the past week (for our latest click here) and our “Vendor Clips” which provides vendor views and industry news from electronic discovery-centric vendors and commentators (for our latest click here)

And go to a legal technology conference near you.  All offer free admission to the exhibit hall (those that have them) where you can meet technology vendors, see the technology at work behind e-discovery, etc.  Many allow free access to students or limited 1-day passes for free admission.  We attend about 15 conferences a year in the U.S., and about 8 in Europe and Asia.  We meet vendors, gain info — and sign up vendors who post jobs on our job lists.

Note:  we receive media credentials from each conference which allows us to attend these conferences for free.  We then conduct interviews, attend seminars, etc. and post our coverage on this site.  If you’d like to assist The Posse List in covering conferences send your resume to media@theposselist.com

There are conferences all over the country and the world.  For example check out this list (with thanks to Rob Robinson of Orange Legal Technology who provide us an updated list on a weekly basis):

eDiscovery Events

SEPTEMBER

IBA: 14th Annual Competition Conference
September 17-18, 2010
Florence, Italy
Click here for more information.

IQPC: 8th Annual Cold Chain Distribution for Pharmaceuticals
September 20-23, 2010
Philadelphia, PA
Click here for more information.

Canadian Forum on Court Technology
September 22-23, 2010
Ottawa, Canada
Click here for more information.

ALM – Virtual LegalTech
September 23, 2010
Online
Click here for more information.

Second Annual Intermountain eDiscovery Conference
September 24, 2010
Salt Lake City, UT
Click here for more information.

Argyle Executive Forum: 2010 Chief Legal Officer Leadership Forum
September 29, 2010
Chicago, IL
Click here for more information.

OCTOBER

The Masters Conference
October 4-6, 2010
Washington, DC
Click here for more information.

2010 NFPA Annual Convention
October 7-10, 2010
Cherry Hill, NJ
Click here for more information.

Gartner Symposium: ITxpo 2010
October 17-21, 2010
Orlando, FL
Click here for more information.

EDRM Midyear Meeting
October 19-20-2010
St. Paul, MN
Click here for more information.

DRI Annual Meeting
October 20-24, 2010
San Diego, CA
Click here for more information.

The Sedona Conference:  Patent Litigation XI
Oct 21 – Oct 22, 2010
Phoenix, AZ
Click here for more information.

ACC Annual Meeting
October 24-27, 2010
San Antonio, TX
Click here for more information.

2010 Techno Forensics & Digital Investigations
October 25-26, 2010
Gaithersburg, MD
Click here for more information.

Sedona Conference, Antitrust Law & Litigation XII
October 28-29, 2010
Phoenix, AZ
Click here for more information.

NOVEMBER

InfoSecurity – Netherlands
November 3-4, 2010
Utrecht, Netherlands
Click here for more information.

InfoSecurity – Russia
November 17-19, 2010
Moscow, Russia
Click here for more information.

Gartner Identity and Access Management Summit
November 17, 2010
San Diego, CA
Click here for more information.

Gartner Data Center Summit
November 22-23, 2010
London, UK
Click here for more information.

DECEMBER

Gartner Data Center Conference
December 6-9, 2010
Las Vegas, NV
Click here for more information.

ALM – Virtual LegalTech
December 14, 2010
Online
Click here for more information.

As Ron Friedmann has noted, one of consequences of the paradigm shift in the legal industry is that “what is bad news for law firms could be good news for legal technology managers and legal technology professionals.”    Law departments must act to reduce legal spend.  If GCs don’t, CFOs and CEOs will step in.   Law firm have lost pricing power and face a battle for market share.  Winning that battle will require that firms offer clients more value.  To do so, firms will get serious about process improvement, project management, outsourcing, and alternative fees.  

As we have noted in numerous posts, law firms must deploy/have been deploying new technology and new expertise but also using  old technology more effectively.   This has required more business and technology professionals, in temporary/contract capacities.  And the existing contract attorney base — and its newest members — provide that. 

In the last year we have seen a spike in our membership coming from ex-BigLaw associates, former trial lawyers, government lawyers, forensics consultants, and others.   And more contract attorneys have moved into project management roles and information technology roles. 

And it is the reason that our job posts for substantive temporary legal work has increased dramatically.  For those on our job lists, you know that the legal recruitment industry is characterized by an enormous surge in demand for temporary legal professionals.  Our job lists have greatly expanded in both geographic range and subject areas.   

In spite of all the challenges we face in today’s job market, 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.  Use these resources.   think outside the box.  Take part.

18 May 2010 — Ralph Losey has designed and created an online class for law school on the subject of electronic discovery. It is a three-credit course, entirely online, named Introduction to Electronic Discovery.  The students can take this course from anywhere, and can do so asynchronously.

At present, the course is offered by the University of Florida, Levin College of Law, and is only open to U.F. law students. This is the first online course the U.F. law school has ever offered on any subject except for Legal Research. Ralph Has written extensively about the high effectiveness of online instruction, especially in graduate level programs (see, for instance, his article Why Online Education Will Surpass Traditional Face-to-Face Education in the Next 5-10 Years).  And it is in keeping with other posts on Ralph’s site regarding e-discovery and the challenge to U.S. law schools.

For the full article about Ralph’s electronic discovery course click here.

7 May 2010 — A federal judge in Los Angeles has declined a request by plaintiffs lawyers in a shareholder class action to force attorneys for Toyota Motor Corp. to turn over documents that were provided to Congress, which has been investigating vehicle recalls associated with sudden unintended acceleration defects.

Instead, U.S. District Judge Dale Fischer of the Central District of California on Monday ordered the parties to reach a discovery agreement on their own within a week.

The suit, filed on Feb. 8, is the first shareholder class action to allege that Toyota’s executives and directors made false and misleading statements to shareholders regarding the defects.  For the full article from the National Law Journal click here.

Lawyers for the plaintiff  had asked Fischer to lift a stay on discovery and instead order that documents relevant to the case be preserved or turned over.   Under securities law, discovery is stayed in a shareholder case if a judge has yet to rule on pleading motions, such as a motion to dismiss.

The plaintiff lawyers pointed to “serious allegations” that Toyota failed to disclose the defects such as the fine imposed by the National Highway Traffic Safety Administration (see our previous post by clicking here).

And they brought up claims in a wrongful termination suit brought by a former in-house attorney at Toyota, Dimitrios Biller, that Toyota destroyed or hid evidence in hundreds of products liability suits, plus the issue of the documents produced to Congress (see our intro piece on the Toyota litigation by clicking here).

This is a situation The Sedona Conference has focused much of its efforts on:  calling on lawyers to work more collaboratively during the discovery phase so that greater time and attention (and money) can be spent on litigating the merits of the underlying dispute.  But its success was premised on getting the judiciary to support its ideals. As we have reported in numerous posts from numerous conferences, judges used to rarely be involved in discovery, but with recent amendments to the Federal Rules of Civil Procedure regarding e-discovery, judges now play a central role.  It is an issue that Ralph Losey has written about in numerous posts.  For a sample of his commentary click here.

And while skeptics argue that the adversarial nature of litigation will likely always encourage scorched-earth discovery battles, it is more than judges telling lawyers to ”play nice”.  As Jason R. Baron, director of litigation for the U.S. National Archives and Records Administration, once told us and has written about:  ”It’s not about helping the other side; that’s crazy. It’s about fighting over the substantive matters of law, and not spending all of the client’s money on discovery.”

For all of our Toyota litigation coverage click here.

Reporter:  Gregory Bufithis

Jason R. Baron and Ralph Losey finally made their Broadway premiere with “E-discovery: Did You Know”, a multimedia presentation we have seen several times in beta.  To get a feel for the futuristic presentation Baron choose Darude’s Sandstorm for the soundtrack.  For background on how the presentation came about click here. 

In a nutshell, ediscovery is expanding exponentially.   How much.  Well, just look at the presentation by clicking here.

The presentation was played before a mock debate between Baron and Losey, the Hon. Paul W. Grimm (Chief Magistrate Judge, U.S. District Court for the District of Maryland) and Jeane A. Thomas (partner, Chair of E-Discovery Information Management Group, Crowell & Moring) acting as in-house corporate counsel.

What they did was to recreate a scenario by which you went inside the boardroom to hear e-discovery search experts Baron & Losey participate in an “in-house” debate with their hypothetical client, taking opposing points of view on the subject of how the client should go about conducting a reasonable search for ESI in response to a massive discovery demand. Some of the hot topics included: How best to conduct keyword searching against a huge data set, and what possible alternatives exist for the client to contemplate paying for? How much information should lawyers and clients really share in conducting search negotiations during “meet and confers” with opposing parties. What does The Sedona Conference Cooperation Proclamation call for in this area? And what about the “bad” document that may or may not come up while conducting your keyword search?  The session was a lively interplay on possible strategies and tactics, and included a perspective from the bench on how the issues might play out in court.

It is difficult to capture the debate because it was fast and furious.  And, quite frankly, Judge Grimm was the star.  He is a rare combination of legal scholar and instinctual litigator.   He has taken the bar to task for not understanding or following either the letter or spirit of the disclosure rules.   He has taken a very aggressive/active role in judicial control and supervision of e-discovery and disclosure.

Ralph provided us the Powerpoint used for the debate and you’ll get a flavor of the issues/topics covered.  You can access it by clicking here.

Jason R. Baron and Ralph Losey do not need any introduction for those of us in the e-discovery “trade” but for our new readers a quick summary: 

Jason has served since 2000 as Director of Litigation for the National Archives and Records Administration, and is an internationally recognized speaker and author on the preservation of electronic records. He was recently named Co-Chair of The Sedona Conference® Working Group on Electronic Document Retention and Production, and has previously served as Editor-in-Chief of The Sedona Conference Best Practices Commentary On The Use Of Search And Information Retrieval Methods In E-Discovery and Co-Editor-in-Chief of The Sedona Conference Commentary On Achieving Quality In The E-Discovery Process.   He is a founding co-coordinator of the TREC Legal Track, a multi-year research project evaluating search technologies used in e-discovery.  Jason has been a trial lawyer and senior counsel with the Department of Justice, a Visiting Scholar at the University of British Columbia, and is currently an Adjunct Professor at the University of Maryland’s Graduate College of Information Studies.  He also presently serves on the advisory board for the Georgetown Law Center’s Advanced E-Discovery Institute and is a faculty member of Georgetown’s E-Discovery Training Academy.    

Ralph C. Losey is an attorney, educator, and author who practices law as a shareholder of Akerman Senterfitt, an AmLaw 200 law firm with offices in Florida, New York City, Washington D.C., Los Angeles, Dallas, and Denver. Ralph is also an Adjunct Professor of Law teaching electronic discovery and advanced e-discovery courses at the University of Florida College of Law. Ralph has been practicing law since 1980 in commercial litigation where he has over 70 published opinions to his credit. Since 2006 Ralph has limited his practice to electronic discovery and IT law related issues and started Akerman’s e-Discovery and IT Law practice group. Ralph is currently the most prolific author of e-discovery in the country, having written three books and three law review articles in the last three years. His books include the American Bar Association’s two best selling books on electronic discovery: Introduction to e-Discovery: (2009); and, e-Discovery: Current Trends and Cases (2008). His latest book on e-discovery will be published by West Thomson in 2010 and is entitled: Electronic Discovery: New Ideas, Trends, Case Law, and Practices. Finally, Ralph is also the principle author and publisher of a popular weekly Internet blog on e-discovery, e-Discovery Team Blog, which now averages over 400,000 visits per year. For Ralph’s full detailed resume please see: RalphLosey.com.

Jason and Ralph have been creating a  movie entitled “e-Discovery: Did You Know?” which will be premiered in it’s final form next weeks at LegalTech New York.  We have seen several ”beta” versions and discussed it before (click here).   It always seems to blow away the crowd.  The guts of the presentation in a nutshell:  e-discovery is expanding exponentially and Ralph and Jason speak in petabytes, and exabytes — not terabytes.

I caught up with Jason and Ralph several times in the last few months and I asked them to put  this “tsunami of e-data” in perspective. 

TPL:    How did the idea of the presentation come to you? 

RL:      This was Jason’s idea, but he had no trouble talking me into it. He needed a technical person proficient at presentations and special effects to implement his idea, and he thought I filled the bill. When I understood what he had in mind, I thought I could probably do it. Besides, we had been looking for an opportunity to do a creative project together where we can both tap into our mutual sense of humor and do something really creative. It proved to be great fun, even all of the research we both had to do on the facts. Although I must add that the technical aspects of putting it together in movie form proved to be much more difficult that I had anticipated. I had to use both KeyNote and Final Cut software, and also ended up buying a new Mac so the final editing would go better. (It doesn’t take much for me to be persuaded that I need a new, better computer!) But still, I ended up figuring out all the technical problems and we both reasonably satisfied with the results. It is also gratifying to see the tremendous response this little six minute video has generated in its two beta trial runs. It is even better now, and we look forward to its “premiere” at Legal Tech NY on February 3, 2010.    Jason and I will play the video before we begin our presentation Let’s Have A Debate: The Hottest Behind the Scenes Topics in Search and Retrieval Today. Hopefully many of your readers will be able to join us. It starts at 12:15.    After that we will put it up on our web sites for the world to see (and would hope that someone will place it on YouTube). 

JRB:   I first saw the presentation “Did You Know” a couple years ago at a KM Conference in Sydney Australia, where I had been invited to speak.   At the time, I was completely taken in by the mesmerizing facts the little movie presented.  Sometime later,  after speaking and writing a bit more on the subject of information inflation and problems lawyers encounter in search and retrieval, I thought doing a more focused movie on amazing e-discovery facts would be a way to really wake up an audience.    I also knew that I needed help if the movie were ever going to get made.   Having gotten to know Ralph first through his wonderfully creative blog, and then increasingly at conferences together and in guest teaching his course at U. Florida’s law school,  I just knew Ralph was the perfect person to collaborate with.  I also knew I could get him to do most of the work in actually putting this together, once I came up with a good idea and once I supplied him with a few amazing facts.  Ralph likes a challenge, and voila, we now have a movie! 

TPL:    We don’t want to steal your thunder from LegalTech in a few weeks but can you quote us some of the numbers from your presentation? 

RL: Well, one of my favorites is that far more information is stored in computers that has ever been spoken by humankind. 

JRB:   Back in the dark ages – the year 2002 —  I only had to deal with searching through 32 million White House emails from the Clinton Administration in response to discovery requests in the US v. Philip Morris litigation.  Come 2017, that number is expected to grow to 1 billion emails from all prior Administrations.  Whomever is the Director of Litigation at NARA as of that time (and I can assure you it won’t be me), will have that much larger set of issues to deal with, in responding not only to e-discovery, but also to future FOIA requests and other forms of government investigations and inquiries.   

TPL:    These numbers are astounding.  You have any more scary numbers to share? 

RL:      Yes. Many, many more. But as my friends in the military like to say, if I told you I’d have to kill you. 

JRB:    Ralph did a great job of pulling together some astounding information about Google searches and what are staggering amounts of information in various social media.   

TPL:    You chose Darude’s Sandstorm as the musical background.  Is there a “backstory” to that choice? 

RL:      Jason’s choice, but I love it.  Well, I used to love it, but after hearing it 100 times to do the editing, my love for the song faded and my resistance to trance music has increased dramatically. I now seem virtually immune to hypnotism. 

JRB:    After we previewed the movie at the Georgetown conference, one person came up to me convinced that I must secretly hang out in dance clubs.  (I don’t.) Truth be told, I had never listened to “trance” music before – as my musical tastes and expertise stopped around 1975, circa Dylan’s “Blood on the Tracks.”   But I started with the music for the original “Did You Know,” by Fat Boy Slim, and using a combination of the Pandora music genome project  for songs with similar attributes, and cross-checking those with genres of music on You Tube, I narrowed down what had been “hit” trance, techno and house music songs over the past 10 years, and made my recommendation to Ralph.  (Apparently the song has also recently been a hit at certain college football games – go figure.) 

TPL:    Ralph, in a recent post you said “before today’s digital deluge, the last major litigation transformation was the introduction of discovery itself in 1938. Before the 1938 amendments to the Federal Rules of Civil Procedure, “discovery” required special bills, writs, and pleadings”.  Can you give us some more background on the transformation of litigation over the years and how it has morphed into this tsunami of data? 

RL:      Actually, I was not around in 1938, but do have personal experience from the late 1970s forward. Discovery used to be a minor part of a case and most cases were tried before a judge or jury. Now discovery is king and only 2% of the federal cases go to trial. That is a huge change.  Further, requests for production of documents used to be simple work. Any good second year associate could do it. Now, it is very complicated and requires special training to do right.  

Also, I remember the good old days when we wrote on dead trees, called paper. Writings on paper would not throw themselves away, move positions in a filing system, or store records inside themselves (metadata) as to who last read them, changed them, and the like. Now we’ve got ESI that throws itself away and self-replicates. Now, thanks to computers, we also have Billions and Billons more writings than before. For more on that, see our Did You Know e-discovery movie. Because of these many changes in technology preservation has become a huge issue and concern about spoliation and sanctions is present in most large cases.  

In the 1980 and 1990s, up til near the end of the century, spoliation was not a significant part of litigation. Now it can be a game-changer and the first thing we have to do in most every case is send out preservation notices. That never used to be part of litigation practice and for some attorneys still isn’t. When they read Judge Scheindlin’s new opinion, Pension Committee, which I blogged about recently, they are going to be very upset. For this new opinion makes clear that the failure to send out written preservation notices is gross negligence. 

TPL:    Jason, in an article you co-authored titled “Information inflation: Can the legal system adapt?”, you stated “information is fundamental to the legal system. Accordingly, lawyers must understand that information, as a cultural and technological edifice, has profoundly and irrevocably changed. There has been a civilization wide morph, or pulse, or one might say that information has evolved”.   What is that morph/pulse? 

JRB:   Actually, those words were originally penned by my friend and co-author George L. Paul, a partner at Lewis & Roca in Phoenix, who is also the author of a pathbreaking book entitled “Foundations of Digital Evidence” (with a forward by Judge Facciola).  The concept of an information “pulse” is one that Ralph has touched on above, and that all lawyers of a certain age are (or should be) hyper-aware of, namely, the exponential increase in the volume of potentially relevant evidence, data, information and records that we are all experiencing and must cope with in litigation.   This is largely due to the information being created and received on the highly networked, interconnected world we live in.  Our wired world is something that seems taken for granted by my high school daughter (who is online virtually every waking minute of the day), but is really something very new.    But recall that the Web went from 20 host servers in 1992 to 100,000 in January 1996 – after the introduction of the Netscape browser in August 1995.  Now that’s a pulse!   At the end of my the information inflation article, I quote from the late astronomer John Archibald Wheeler, who said that tomorrow we will learn to express all of physics in the language of information.  Although e-discovery requests haven’t reached the far edges of our galaxy or of the known universe (yet),  information overload and information overabundance on Earth is, I’m afraid, going to be the continued defining characteristic of our age – for lawyers and for everyone, for as far as our crystal ball can see. 

TPL:    At numerous presentations you have both stated that understanding how information is processed throughout its lifecycle is essential.  It’s a process.  And that means change, especially as it relates to electronically stored information.  How does a general counsel start to address these issues? 

RL:      They should start to address these issues by forming an interdisciplinary e-Discovery Team. That is the critical first step and thus is the name of my blog –e-discoveryteam.com. This new Team needs to be properly staffed, funded and coached.  Otherwise it will probably sputter out and fail, or at least, not fulfill its full potential. Once the team is set up, one of the first tasks of the team should be to overhaul the company’s information management systems for ESI, including preservation hold procedures. Then the team should move onto ESI collection procedures when faced with litigation. Of course, to collect, you have to know where it is, and so the map and information management are critical threshold steps.           

JRB:   I can only “second” what Ralph says here.  As a career civil servant, I believe there is a real need for General Counsels or their equivalents in government to empower a select few attorneys across each component of a legal office, to work with CIOs, records officers, and heads of key business units, so as to jointly collaborate on such matters as retention policies, preservation and legal hold policies, IT procurement choices that have litigation consequences, and the like.  The problem is that even in 2010, most organizations lack a person or persons who wish to serve as mediator and translator of the various languages and disciplines involved (i.e., to serve as a Rosetta Stone, translating between communities who approach aspects of information asset management in  very different ways.)   I do have one overarching recommendation to General Counsels, however: find the youngest, just hired lawyer, to lead the effort – she or he should have no conscious awareness of the Apollo space program and men walking on the Moon (if they do, they really are too old to make much headway!)  

TPL:    How can technology help? 

RL:      You have to fight fire with fire. The problems of             too much information, ESI  complexity, dispersion, and chaos are all caused by technology. Inventions got us into this problem and so inventions will have to get us out of it too. Software and hardware are part of that, but only part. We also have to invent new methods which use the software and hardware as tools. We have to use these tools in a smart way. New software systems alone with a new legal gestalt will not work.  

JRB:    Ralph is absolutely right.  In the near term future (ten+ years from now), scientists hopefully will have developed sufficiently robust content analytics and other means of artificial intelligence so as to make us comfortable in automating much of present-day discovery, from preservation to collection to search and privilege review.  There will always be a human element to lawyering, of course,  but we have to move on beyond “everyone being their own recordkeeper” and “searcher” to more automated and sophisticated ways to tackle the growing problem of ESI volume. 

TPL:    Ok, a difficult question.  We have seen how the judges have taken more control of the discovery process, or at least we have heard judges and pundits saying they should.  Do you think the situation is now so overwhelming (data overload) we will see the rules changed this year as a result of the Duke Universirty conference this spring? 

RL:      I doubt it. The rules are not the problem, nor the solution. Education of the bench and Bar are the solution. From that you can infer what the real problem is. 

JRB:    I am not a fan of major rules changes so soon after the 2006 Rules amendments, although we can always do a better job wordsmithing.    I do believe that The Sedona Coference’s Cooperation Proclamation, if rigorously adopted by courts and complied with by litigants, would go a long way towards narrowing problems caused by data overload.  I’m honored to say that I have been invited to take part on one of the Duke conference panel,s and plan on talking about automation and technological solutions to rising e-discovery costs.  I‘m looking forward to the opportunuity to interact with like-minded colleagues on the bench and bar while there. 

TPL:    Jason, Ralph – many thanks for your time.  We’ll see you at LegalTech for the final version of e-Discovery: Did you Know?

RL:      Hope to see you and your readers there. I see your blog, The Posse List, pop up on my iPhone each day, and encourage you to keep up the good work!

JRB:    Thanks Gregory.  I have become a big fan of The Posse List and urge readers of this column to check out the excellent reporting from past conferences. 

Note to readers:  we’ll have a video interview with Jason and Ralph next week from LegalTech New York 2010.  And for those of you attending LegalTech here is where they are presenting:

Monday, February 1, 2010 starting at 3:30pm   Ralph will be on a panel entitled Ask The E-Discovery Doctors and he will be joined by Craig Ball (attorney and president, Craig D. Ball, P.C.), George Socha (attorney and president, Socha Consulting, LLC) and Dean Gonsowski (VP of E-Discovery Services at Clearwell Systems)

Tuesday, February 2, 2010 starting at 12:45pm   Jason will participate in a panel entitled Taking eDiscovery and Compliance to the Cloud.   The panel will be moderated by Deborah Baron (Vice President, Legal & Compliance, Autonomy, Inc.).  Other panelists will include Browning E. Marean (partner, DLA Piper), Wayne Matus (partner, Pillsbury Winthrop), Karla Wehbe (Senior Information Resource Manager, Risk Management, Bechtel) and Brian Weiss (VP eDiscovery & Information Governance, Autonomy) 

Wednesday, February 3, 2010 starting at 12:15pm    Jason and Ralph will be playing the video e-Discovery: Did You Know before they begin their presentation Let’s Have A Debate: The Hottest Behind the Scenes Topics in Search and Retrieval Today.  Also on the panel will be the Hon. Paul W. Grimm and Jeane A. Thomas, a partner in the Antitrust Group of Crowell & Moring and Chair of the firm’s E-Discovery and Information Management Group and a partner in Crowell & Moring’s Antitrust Group.

Reported by:  Gregory P. Bufithis, Chairman/Founder  The Posse List