Saturday, July 26, 2008

The "American Rule" proposition...

There has been much discussion surrounding cost shifting and the burden of costs with regards to e-discovery litigation based on the premise that the defendant typically bears an unfair burden of expense during discovery. The underlined rules of civil procedure simply state that one must bear their own expense to prepare a suitable presentation of the facts. Additionally, during discovery should a request for discovery be of such that is not reasonably accessible; one must show fact of the undue burden to present such information while proposing that the demandor should incur all fees associated to seek facts as requested (by order of the court).

In an earlier post the discussion focused on the growth of e-discovery in litigation and the responsibility of litigators to prepare with prudence - "Early Case Assessment". As the standards for managing the litigation lifecycle continue to evolve we must also take into account the need to openly educate without expectation. The latest Socha-Gelbmann survey results were leaked this week highlighting the achievements of companies on various levels for providing services and solutions focused on e-discovery and litigation support. The recognition is solely based on the opinions of few that have taken time to conduct extensive research in evaluating companies to compile a list of those making a difference in the industry. The privilege of making the list for the recipients is that one can now spend marketing dollars promoting their success on a global stage.

Just as litigation support service and solution providers are recognized for their achievements, litigators also work to be recognized in the same capacity. Most often litigators work extremely hard beginning with law school to create such a distinction from the next litigator with the hope of building a practice. In the path of becoming the Partner a litigator is subjected to obtain an annual number of credits for legal education; most often the credits are not fully acquired until the week of the deadline. Why so?...are billable hours so far more important?

Cost shifting...Industry Leadership Awards...Continuing Education



One would think that these concepts would be somewhat relative. Especially when you consider that with the level of talent that is recognized annually, someone would have figured out how to balance the weight of education and litigation expense to create a new paradigm. The one who does is truly deserving of the leadership award.

Oddly though, there are several SaaS providers that have made strides in the ability to effectively perform fact finding during discovery using sophisticated tools that eliminate the human factor once associated with massive paper based discovery or hardcore forensic collections of years past; which ultimately reduce burden and expense for the service provider. It is too often a client or litigator hears "...our rates are competitive with the market and we can be more aggressive if needed later...". Yet another "American Rule".

This industry of litigation support is the fastest growing today without any regards to the economical troubles of the day in which we live. People bring suit against another more often when the economy is in a down turn. It is not uncommon to see, post litigation, where the fees have been so astronomical that corporations and/or individuals have been forced into bankruptcy (or worse) in the course of providing facts to substantiate an argument.



Before propounding litigation or at the notice of litigation one must seriously consider the risks associated. Especially for the choice of representative counsel and litigation support service provider. Choosing the award winner, in haste, will most likely end up costing more without having any value-add (see previous post "Where is the value-add in litigation?; bigger is not neccesarily better...").

Still today, the Gordon Gekko ("Wall Street, 1987") rule continues to take precedence "...greed is good..." along with the notion of "...what they don't know won't hurt'em..." will keep the cost of litigation on a "competitive" plain. As long as we only educate when its convenient; being cautious not to over educate.


In short, cost shifting needs to occur throughout the entire process of litigation readiness. Emergining SaaS solutions are proving to reduce internal expenses for the litigation support providers for collection and preservation; litigators benefit as they are able to review smarter and faster which should reduce billable hours associated with discovery preparation and planning; clients reap the benefits by incurring less expense to produce responsive documents.




Saturday, July 19, 2008

Where is the value add in litigation support?; bigger is not necessarily better...

Over the last 7 years we have seen a tremendous growth in the Litigation Support Industry as shown by companies posting record sales volumes and legitimate support providers being gobbled up by companies with very little knowledge of the industry who only see opportunity to maximize profits for their investors. Capitalism at its finest has made this industry one of the most sought after today.

Its a fairly simple proposition to start a litsupport business; one can simply get on the Internet buy some software and read white papers written by others. Providing just enough information to allow one to be considered a professional; or if you're daring an expert. The next step is to come up with a catch phrase to sell your newly acquired skill to gain work from a law firm or corporate general counsel. With a wee bit of luck you land a project, get overwhelmed, and outsource the work unknowing to your client so that you can make the deadline. After mitigating your way with the client explaining delays in processing and such, the client discovers an issue that you have no idea on how to support.

There are many National companies in this industry that operate with that exact approach. The national providers of litigation support industry have the ability to meet with clients and present their proven solutions and success patterns to wow the client. Most clients feel more comfortable with a house hold name simply for the fact that no one wants to be a "test dummy"with the localized vendor who claims to have this new service offering. Especially in "high profile" cases.

Often times national litsupport providers operate very well and truly support the entire litigation lifecycle. This tends to be the norm, especially when you're being charged 4x more than a competing localized litsupport provider. For one automatically assumes the the justification in paying more is based on the perception that the larger provider is more versed and has more resources to handle any challenges that may arise.

Here's how I see this paradigm:
Yes, national litigation support providers have greater capacity.
Yes, national litigation support providers have more Senior Level employees.
Yes, national litigation support providers have more resources.

What they lack?
Creativity
Focus
Customer Appreciation

Here lately I have been engaged in conversations with prospect clients where they have been working with a household name national provider on various cases. Most times the client has been satisfied with their ability to get them up and running quickly to review the document collection. The client has been able to search and cull documents at the speed of light in lieu of the fast approaching deadline to produce. The national provider creates the production sets and delivers to the client within 3 days or less. The client receives the data and begins to spot check the production before producing to opposing counsel and/or the Judge and finds what appears to be...forgive the term...an error.

What to do now? There are only hours before the production is due and the case gets thrown out for failure to produce. Naturally the client calls the national provider to demand answers for how to resolve. In most cases the client finds that the IDK (I don't know) dance begins as they are referred to person after person before the answer is given "...that we will look into the problem and get back with you". In the mean time the client has assigned a document clerk or paralegal to rifle through every image on the production disk to identify other problematic images. Therefore, while still waiting for a return call from the provider, in less than an hour you call back the provider to disclose your findings. The provider begins to review your findings and says "....we can definitely address this problem further...we can have new images ready for you tomorrow...we will need to charge as it is a more intense process to correct...which goes beyond the scope of our initial agreement..."

Now what? The client is still faced with the non-forgiving production deadline and at this point the OS factor (oh shit!). The savvy paralegal makes the suggestion to get the problematic native files sent via FTP download and do the conversion correction in-house, merge the corrections into the production set and get it out the door to opposing counsel.

The new problem. The client doesn't have the tools/resources to correct the files in-house nor the time to make the production set look consistent. The document clerk suggests, "...what about local provider x located here..." As more desperation sets in local provider x is called and responds with, "....we are most willing to assist...can we come over in the next 15 minutes to evaluate and provide a realistic time frame to complete..." Within 15 minutes local provider x is within the client office and recognizes where the problem exist and provides a solution for how to correct in time to meet the ever encroaching production deadline.

Local provider x takes and completes the project in less time than originally anticipated; delivers work back to the client; client makes production deadline; client now turns to local provider x and informs them that they will need a break on the pricing as it will be a firm expense because the cost for corrections can't be justified to their client.

The nut in today's blog is quite simple...in some instances when attempting to compare apples to apples between your local provider and the national provider the deciding factor needs to more focused on level of service and post production responsiveness. Far too often I have seen my clients get burned on the cookie cutter services of national providers and the rigidness of their ability to be creative; all while hiding behind the shield of "the services agreement". Some will read this post and claim that I'm way off base...my response to them is it will happen one day and local vendor x won't hold it against you. Just give them a chance on the next "large case" better than they got for this one.


My initial experience with this industry, in 1991, was working with folks who understood the benefit of hard work and proved their worth to clients by making sure instructions were clearly followed and they performed above and beyond the client request. These same individuals also made it a point that before one could advance in the company he/she exhibited the desire to learn. This value system has lead to producing some of the most respected business owners, business executives, sales professionals and project managers in our industry today. This same value system also has created a long sense of trust among those of us that continue to pass it along to those in their employ now. We follow one simple creed:

"...never give up for there is always a way...just think about it and do your homework...a solution exists..."

Wednesday, July 16, 2008

MatterSpace(R) ELM Solution does it again!

I have spent the last few days aggressively educating my clients about Early Case Assessment solutions and managing the burden of ediscovery for litigation. As I continue to talk to more and more people regarding best practice methods and doing "smart discovery, smart collection and smart review"; i continue to hear "...wow where were you two months ago when we had....it was just a mess of electronic stuff and gave me headaches..."

As I continue my quest to share with my clients the knowledge that I have on the ediscovery subject matter, I constantly remind myself that with education comes more service. It is one thing for me to educate the client; it is even more prudent to make sure I don't let the knowledge go to waste.

The abridged case study below is a perfect example of allowing experts to provide solutions that will not only satisfy with today in mind; its more about being better prepared for the future

Business Wire - Press Release Deploy MatterSpace(R) ELM from WorkProducts in One Day for a Subprime Litigation Matter

A customer-oriented solutions provider dedicated to data management excellence, in partnership with WorkProducts, architect of the MatterSpace(R) Evidence Lifecycle Management (ELM) solution, today announced that they have recently deployed the MatterSpace(R) ELM solution in one day to provide a leading Bank with immediate preservation compliance and tremendous eDiscovery cost savings on a highly confidential subprime litigation matter.

This Bank's legal team is now able to manage all custodian preservation communications (legal hold notifications, acknowledgements, etc.), while enforcing preservation compliance through the targeted preservation crawl of data custodian's email, remote desktops, files, Sharepoint, archives, etc. MatterSpace also provides the Bank's legal team with file-level data chain of custody, de-duplication, indexing, analysis, search, review & tagging, and export of relevant data in a snap to outside counsel's discovery review system, LexisNexis Concordance. Additionally, the Bank's preserved and produced data is ready for compressed and encrypted storage.

"...provisioning and deploying the MatterSpace Services Edition solution to this Bank is proof positive that behind the corporate firewall, ELM technology that is secure and stable provides corporations tremendous risk reduction, not to mention cost savings,"..."For corporate legal/IT/Information Security departments of any size, with all types of litigation, this product is a perfect fit." "This ...deployment proves that the WorkProducts ELM Ecosystem's utilization of MatterSpace integrated with their products and services provides tremendous risk mitigation and value to corporate legal/IT/Information Security departments," says Steve Lilley, Founder and CEO of WorkProducts, Inc. "...a preeminent disk-to-disk online backup provider that has not only provided this Bank with a seamless deployment behind the firewall, but has also provided efficient and accessible storage for such MatterSpace preserved evidence."

please see the full unabridged case study at www.workproducts.com

Thursday, July 10, 2008

Top 10 Best Practices that will save $1000's...

The key to managing an effective ediscovery case is to plan for the end result first and then develop a concise strategy based on the budget and robust SaaS (Software as a Service) resources. When I think about the huge price tags associated with ediscovery it is clear to me that the more time given to asses the client data the better chance there is to control the costs. Cases don't just pop up...waiting until the last minute to identify potential relevance will cost 3x - 4x more $$'s as there is less time to prepare the right solution. For in haste there is waste.

Here are some industry standard "Best Practice" methods to consider when the legal notice has been issued.

  1. Negotiate discovery requirements effectively. Understanding the details surrounding an organization's electronically stored information (ESI) is critical for effectively negotiating a favorable scope of discovery. Among other things, the legal teams will need to know where the ESI is stored; which documents are most relevant to the matter; what time frames are involved; and how easy (or difficult) it will be to collect, review and produce the ESI. Having this information documented and ready to present to the court and opposing party during "meet and confer" negotiations can save hundreds of hours in attorney review time and will likely limit other downstream costs as well.
  2. Employ smart culling strategies. Eliminate the data and system files that are not relevant to the matter. This can be done by testing keyword search terms, relying on duplicate management systems and performing an early evidence assessment to ensure the right ESI has been preserved and collected prior to review. Effectively culling ESI can reduce review time and costs by 5 to 50 percent.
  3. Staff the review team effectively. Once the scope and risk of the matter has been determined, staffing can begin. A typical review does not require a partner or high-level associate to review every document. When properly trained, junior associates, paralegals and contract reviewers can be very effective, and their participation can significantly lower the overall hourly cost of review.
  4. Select robust review technology. How large is the review? How many reviewers are required? Are all of the reviewers located in one office? What search capabilities are needed? In what formats will the evidence need to be produced following the review? Answering all of these questions in advance will help identify the appropriate platform to support the review. A web-based, hosted review environment that supports multiple file types and geographically dispersed review teams is often the best choice for large, complex cases.
  5. Organize the review workflow. To ensure a smooth process throughout review, it's helpful to establish a workflow that defines which documents to include in a review set, the number of documents to be reviewed each hour, reviewer assignments and required reporting tools.
  6. Analyze opportunities for culling-in-review tools. Today's review platforms have the ability to cull during the review phase. While it's important to evaluate risks and deadlines in a particular case to help determine where and how to use these culling tools, keep in mind that courts are looking with increasing favor on those who attempt to produce a manageable amount of ESI.
  7. Provide effective reviewer protocol and training. Make sure the review team members understand the essential definitions, the step-by-step objectives and any signs that would indicate they've gotten off the track. The more thoroughly the review team members are trained and monitored, the fewer the mistakes they will make.
  8. Monitor review progress and efficiency. The review manager should receive regular reports to ensure projects stay on time, on budget and within the established quality control settings. This will help identify the most efficient reviewers and determine whether staffing adjustments need to be made. It will also help the review management team identify any mistakes and correct them before they become a costly issue.
  9. Design and implement quality control procedures. By systematically following the first eight steps, review teams will have, by default, established a set of quality control protocols that will help them more effectively manage an e-discovery review. It's important to document these protocols and follow them consistently throughout the review process.
  10. Capture and promote best practices. Having followed each of these steps once, it's easy for a legal team to apply the same workflow and tools on future matters. Implementing sound, repeatable processes will go a long way toward ensuring reliable and cost-effective responses to discovery requests, no matter how frequent or unexpected.

Now you're building a roadmap for success and client satisfaction

portions of this discussion are courtesy of http://www.fiosinc.com/counselor/v09_n07/Discovery_Response_Report.asp?admit=0907

Wednesday, July 9, 2008

Early Case Assesment

I do agree that the costs associated with electronic discovery dramatically affect the decision of whether or not to move forward with litigation. As we all follow industry news, General Counsel for most corporations are making a concerted effort to learn more about things that can be done in-house before the on-set of potential litigation to control costs associated with identifying, archiving and preserving data for outside counsel to review. In our own business we have begun to see a shift from the Law Firm selecting vendors to the corporation itself going out and doing vendor selections. Thus this discussion I felt needed some attenetion as it is apparent to me that most ediscovery solutions are catered to larger cases and larger companies. What about the smaller cases that need the same amount of work if not more to effectively prepare for litigation; how do they stay within a reasonable budget to justify the expense versus the ROI. This is where the lawyers get involved and have to change the way in which they prepare for litigation. No longer will it be accepted that you can just go in and collect everything from every custodian or source involved, especially now with electronic data and its unknown effect to the litigation.

Traditionally a Lawyer will select a vendor based on their comfortably with the vendor (including past history of success) and the experience of the vendor to perform services under duress. Today’s market though requires now that Vendors, as lawyers and other professionals, continually re-educate themselves of the best practice methods for handling a variety of case work and keeping up with court decisions to understand what methods are becoming widely accepted by the courts as reasonable. Reasonable has proven not to be directly correlated with a dollar value; therefore what may consider unreasonable based on real world expenses (i.e. ROI) must be identified early in the decision making process. This will determine whether a client proceeds with propunding litigation or works to mediate a settlement.

Law firms that can provide effective early case assessment to their clients seeking litigation will gain more credibility than those that continue to follow the methodology of "collect everything" until the budget runs out. Early case assessment includes the ability to identify the facts of the case through analysis of the custodians, concept and thread analysis of emails and data sampling other electronic data to determine the best case strategy. This should be done in order to better prepare the client for potential expenses that will arise should litigation be propounded. What is the benefit in propounding litigation when the case is worth $1M and it requires spending $150K just to process data for review (not including attorney fees)?


Most firms today don’t have the capability to provide such a solution as it requires the experienced expert to perform the assessment. The expert is typically a seasoned IT Professional or someone with a background in Computer Forensics. There is also the upfront expense of using various SaaS (Software as a Service) to analyze the client data and create the custom reporting required of the lawyer to determine and build the case strategy.



It is our duty as professionals to educate our clients early in the process of their potential exposure; this is accomplished thrrough early case assesment.



"I can show a child how to eat....though as time passes I must also show the man how to fish..."