Managing the Litigation Lifecycle

Customized & Proven Solutions on a fixed budget for data Preservation, Analysis, Review, Processing & Production. No Guessing Required

2010-05-12T12:27:00.002-04:00

I recently read the following article and got inspired by the responsible yet two-step response to the question below:

Controlling Legal Costs - Law Firms An Important Voice For E-Discovery Reform , The Metropolitan Corporate Counsel, Inc., Published: May 03, 2010,

Editor: How important do you feel providing hard data on litigation costs to be?

Marketos: I feel it is imperative to provide clients and opposing parties with realistic, hard data on the costs of discovery. The problem, of course, is that the facts (and scope) of each case are unique - as are the proprietary document management systems of each client. Without significant experience in e-discovery, including with e-discovery vendors, their processes, and their software programs, counsel is often guessing in the dark. "Hard data" is usually soft data because counsel underestimates not only the cost of identifying and collecting e-discovery, but of reviewing the data for relevance and producing it. The attorneys' fees associated with document review - including unnecessary and duplicative efforts to review for privilege and substance - is often two or three times the estimate provided to the client.

The integration of Smart Preservation & Collection, Smart Analysis, Smart Review & Smarter Productions provide the framework for building a budget. The concept is simple yet realistic. Human time, human intellect, data hardware, discovery software and data storage are the baseline components of the service provider budget.

ü Time - typically billed hourly

ü Hardware - amortized over 3-5 years

ü Software - amortized over 3 years

ü Storage cost - relative to the space required for the project. A one gigabyte project will require approximately five gigabytes of space to manage the project.

ü Intellect - paid annually

Bridging the gap between profitability and common sense can be tough for most legal services providers. It requires that the provider be in touch with the industry, in tune with internal management, technology and workflow all while understanding and managing the cost of providing each element of service that makes the solution. This requires the provider to own each piece of the process in order to streamline cost to increase the Client ROI and the overall business profitability. In the same sense that legal professionals take risk in selecting an outsource provider the outsource provider must take the same level of risk in return for giving comprehensive services and solutions that are proven by industry standards for a defensible approach to handling the data. Thus giving validity to my previous post series “Why does eDiscovery cost so much?" ... DIY Kits don't come with Experience ...” and Controlling Discovery Costs ... "What's in your toolbox?" followed by “Science of Calculating eDiscovery Volumes and Cost ... How so? ... Really?!?”

There are many products today for legal professionals to wade through the daily storm of responding to and preparing for a legal matter. No matter the size or the nature of the matter there is a constant worry for all … How much is this going to cost and what is the best method to handle? The challenge is even far greater in our turbulent economy and job market as people are being courted everyday to move from place to place and in some cases the cuts cause the workload demand to become unbearable. This leads legal professionals to take a closer look at outsourcing data storage and information management in response to the legal storms.

Depending on the market the choices are vast and risks are even greater. Legal Professionals choosing the wrong outsource partner is a costly decision. How does one truly evaluate several key factors of the outsource partner all related to experience, experience, experience and stability of the company? Once you get past the initial sales professional … check out the project management, production and technical team … often referred to as the heart of the organization … Does the level of knowledge resonate through the entire organization or does the buck stop at the top brass without ever traveling downstream?

The reality for most is that larger providers of legal support services have reduced staff for software, scaled back on their speed of service and shifted to a nickel-dime cost structure model masked by a new ‘buzzword”. Rather than moving forward there has been a reversion in thought; the slow death of the per gigabyte cost structure is giving a new life to the per click model of years past. The per click model is being viewed and presented as predictive. Predictive!! How so? …This is quite hilarious. For example, what is the effect during discovery when it is determined that 40K excels files (@ 19mb each or ~700gb) are responsive to the production and require conversion? If handled improperly the cost of discovery just got out-of-control.

‘Solution’ is an easy term to use in the course of business. Is the solution limited to the off-the-shelf software or is there true inspiration innovation and the ability to implement customization based on the desired end result? How is the phrase “if it ain’t broken don’t fix it” interpreted? I like “if it ain’t broken, when will it break? So let’s keep making it better so it won’t break”

Too many focus on the buzzwords …. You know them…

Ø Content Analysis

Ø Early Case Assessment

Ø Email Threading

The intent of the buzzwords is to bring awareness to a particular service, solution or feature about the discovery phase of the EDRM. Instead this author believes that focus and emphasis need to be placed on controlling costs related to overall information management. Thus setting the standard for how the EDRM will facilitate throughout the legal process. The paradigm shift will happen when “e-Discovery” service providers get daring enough to take a close look into their business model and define a fee structure based on evidentiary device and storage with true project management costs.

Disclaimer: By no means does the author imply that just any entity can do e-discovery as it does require years of experience and more than just pushing-a-button. Nor does this author suggest that every company can be profitable by providing a fixed fee cost structure for comprehensive discovery services. The author’s comments/opinions are directly based on actual experiences, client feedback and personal expressions of the author.

For additional information on establishing a realistic discovery budget send a comment to the author.

SUPERIOR DOCUMENT SERVICES PARTNERS WITH RELATIVITY

2010-04-21T10:38:00.001-04:00

Press Release - Richmond Virginia - April 21, 2010 - Superior Document Services, the largest electronic discovery and services provider in Central Virginia, today announced that they have joined the Relativity family as a Premium Hosting Partner and are now offering the document review, analysis and production platform to all of their clients.

In conjunction with Superior’s move to a hosted environment in a world-class data center with a high performance, fully-redundant private network, the addition of Relativity will allow clients to gain more powerful access to their data.

“Relativity is an industry leading document review platform, and as such is a perfect match for Superior’s stated corporate vision,” said Kriss Wilson, president of Superior Document Services. “Our new network infrastructure provides customers with reliable connectivity and fast performance, and will allow them to seamlessly focus on the documents and not the associated technologies.”

“We’re thrilled to welcome Superior Document Services as a Premium Hosting Partner,” said Andrew Sieja, president and CEO of kCura. “By combining their industry expertise with our advanced technology, we’ve created an exceptional partnership that will bring significant time and cost savings to their clients’ review efforts.”

With the addition of Relativity, Superior Document Services now offers a complete suite of hosting solutions to provide clients with the best customized SAS technology for their document review teams. From early case assessment through document production, Superior Document Services is positioned to deliver unmatched value to its clients and partners.

About kCura

kCura are the developers of the e-discovery software Relativity. Relativity is a web-based application servicing the analysis, review and production stages of the EDRM. kCura helps corporations and law firms with e-discovery challenges by installing Relativity on premises, as well as providing hosted on-demand solutions through a global network of partners in Asia, Australia, Europe, and North America. For more information, visit http://www.kcura.com/.

About Superior Document Services

Founded in 1998, Superior Document Services has successfully combined state-of-the-art technology with a detail-oriented commitment to creating a high quality work product. By applying industry-specific expertise to a creative, resourceful, and highly personal business model, Superior has evolved into the largest full-service litigation support company in the Richmond, Norfolk, Virginia Beach and Roanoke, Virginia markets. Its clients include not only Fortune 500 companies, but some of the world's leading legal, accounting, and consulting firms. For more information about Superior Document Services, please visit http://www.superiordocumentservices.com/.

Press Contacts:

Kriss Wilson
Superior Document Services
(804) 648-2800
kriss@superiordocumentservices.com

Adi Elliott
kCura(312) 676-5075 aelliott@kcura.com

Legaltech 2010: Trends, Fades & Promise

2010-02-05T20:01:00.001-05:00

This years legaltech was rather predictive in my opinion as the stage is and has been set for the Corporations to take control. There was much chatter that the focus on ediscovery processing was not the interest of most participants...the focus was all about information governance and effective use of cloud computing. Legal suppliers typically would give away pens and fun little do-dads that all spoke to the stress of being in litsupport. This year suppliers gave tacky things that spoke to going green and becoming more efficient ... heck there was even a SmartCar to be won.

Most conversations that I engaged had the same symmetry ... participants were interested in a comprehensive solution or plan for information management in-house and reducing the volume of discoverable data. This theme was even reflected by the legaltech supplier protesters who clearly displayed signage promoting "NO PROCESSING FEES" & "DEATH TO THE GB". I found humor each time when passing a demonstrator as they would get a high-five from the general participants and the look of death from the ediscovery supplier. This blatant display of the future causes major issue for those suppliers not prepared to understand and alter their business model to fit the needs of their new client base.

The Corporation

Law firms will no longer maintain carte-blanched power to manage the process and the budget .... this by no way implies that a supplier should forgoe their relationship with the law firm, this is the opportunity to partner and provide greater solutions to make both the suppliers attractive (law firms are suppliers too)... the Corporation pays the bills and now will take even more proactive steps to control the cost of discovery.

This tone was set in Boston at the ACC and now in New York at Legaltech....I don't think the message gets any softer .... only more bold and loud.

Litigaton Support Software providers too will feel a crunch as this Corporate Governance begins to tighten its belt. The software provider that is just focused on one function of the process shall not survive. The "ECA" tool that just flattens reads and reports is of no use to the new "Information Governance Officer" nor the law firm partner looking to keep in the know. Products like Trident Pro and IFramework are postioned to make an impact at this level. Not because of the bells and whistles yet its their ability to manage and track a process or processes. Not to mention they both integrate well with traditional ediscovery processing and review platforms.

Surprisingly there was very little buzz with keyword identificaton and other advanced search technologies. Most legal suppliers claim to have the best solution built into their product. Funny they all state searching power is built on dtsearch or scansoft. Both of which are great apps though no seasoned litigator is going to trust either to preform serious text nor conceptual analytics. This was a missed opportunity in my opinion and thus a "new learning curve" takes shape.

Just recently, the communication gap between the lawyer and IT has reached the level where both facets play nicely during the legal process. Today many Corporations see the value in making investments geared to not just maintaining a network infrastructure but building a model that is proactive in reducing the amount of non-essential legacy data. In most cases these are direct results of the influence by Information Technology Managers desire to reclaim storage space while budgets have been constrained. The social media phenom also brings awarness to the risk of not having computer usage policy or regular audits of the information governance policies. These type of decisions typically involve a consult from the Execs nd General Counsel to insure best practices are comprehensive and legally valid.

During these times The Execs and General Counsel thirst for knowledge is the catalyst for Law Firms their Discovery Partners to provide solutions for how to achieve total compliance not just focused on legal. Total compliance involves the Information phase of the EDRM model ... which ironically is the first phase well before Processing. The challenge is that most Discovery suppliers don't have the technical acumen to provide such solutions... they just "push buttons"

Inspire. Innovate. Implement.

LegalTech 2010: Turn Your Digital Landfill into a Green Field

2010-02-01T10:40:00.001-05:00

Turn your Digital Landfill into a Green Field: Focus on Compliance not Technology (keynote presentation by Russ Stalters)

· Information Management

· Don’t hoard unstructured Information

· “40% of firms print e-docs & file as paper record” AIIM 2009

· Form an Information Governance Council

o Legal

o IT

o Compliance Officer

· Building the Green Field

o Managed Repository

o Digital Lamination

o Access Control

o Legal Hold

o Disposition/ Retention Policies

o Create a Datamap connected to the business process

o Define Custodians of the Process

· Change the Culture

o Establish a 6mth to 1yr retention policy

o Create a Move Plan

§ Practice

§ Implement

§ Audit

· Close the Landfill

· Mitigate or Migrate

o Consider deduplication rules

o Adding Search Technology

In my opinion Mr. Stalters view are directly in line with the changing scope of our industry focus from e-discovery to pre-discovery and early case assessment. The most simplistic way to lower cost associated with legal matters is to reduce your exposure by have policies that work. The need to keep and retain data beyond the legal requirement must be governed from the inside out. Corporations that get it will see their overall corporate costs decrease that relate to storage of unstructured data and legal fees to sift through the data in response to a legal matter.

This is not about technology yet it’s about managing humans to comply with the technology and practices in place. Think about this concept, you could pay an Information Governance Officer or your could pay millions in legal fees …. Seems simple to me … You??

The Sabbatical Pledge

2009-12-25T19:40:00.001-05:00

I'm thankful for the Team at Superior Document Services and its Partners as well as Clients who have been extremely supportive of me over the last 6 years (especially the last 6 weeks). This time away from direct daily communication with the team and clients has provided vision for how I must work to grow our future. The core of our business is strong enough to meet the demands of our industry though the brand building has been shy of marketable. The time has come to shed from the shell and take our dedication, experience and ethics to a larger stage.

I will let not the blocks of the last 6 years go to waste for lack of Faith. Bringing it in 2010 with the valor of a Spartan and the skill of the Trump.

The goal for this chapter is to inspire a paradigm shift in the market with innovative solutions built on experience for the implementation of products and resources at all service and support levels that keep costs in check!

Just as we celebrate the birthday of Christ today I now am able to celebrate a newness in me inspired by those who support me in all aspects of life. For He walks with me; He talks with me; my obedience shall light thy path.

inspire. innovate. implement.

Science of Calculating eDiscovery Volumes and Cost ... How so? ... Really?!?

2009-11-13T09:56:00.001-05:00

Recently the term "Predictive" is redefining how organizations are viewing legal discovery. "Predictive" in the legal industry refers to the ability to accurately estimate the amount of electronically stored information that will be discoverable and potentially responsive. Which ironically is now an official science as law students with a SocialMedia background now have hope for effective use of their $300K Juris Doctor credentials. Who would have predicted that 5 years ago?

...Heck Technology is just pushing buttons... LOL

In order to be "Predictive" there is quite a bit of prep work involved now commonly being referred to as ECA or Early Case Assessment. ECA is achieved by utilizing Experience with Conceptual tools for the Analysis of electronically stored information. Ironically this concept is nothing new to a seasoned Project Manager and Litigator who actually had to be innovative during the origins of the Dalkon Shield Litigation.

Today's buzz is a direct result of how most companies have neglected common sense organization of records because of its electronic origin.

"...no worries I can just seach the entire network to find where I saved that file...."

This leads to the Legal First Response Team (LFRT) swooping in to quickly assess the scope of the land and define a plan to mitigate risk. The basics involve understanding the Client, understanding their retention habits and uncovering the truth. Not childs play by any means and requires more than book knowledge defined by an 8x10 hanging frame. All the while fees are mounting while the LFRT is snooping about paper, computers, networks and personal storage devices in search of relevance.

Five Custodians can readily present more than 3 terabytes of electronically stored information during discovery for review ... ECA then becomes "Enough Co$t$ Already"... says John Martin, CTO at RedFile

In the majority of matters the concept is use of an ECA tool will lower the amount of data collected & preserved thus the lower the cost of discovery. FALSE!

Once more FaaaaAALSE!

ECA solutions are being presented as excellent means to cull and pre-tag data for a later review by dramatically reducing Attorney Review Time. True .. Except most ECA models are priced by the gigabyte on the total amount of uncompressed data ingested into the ECA application. How is that "Predicitve"?

Based on the overall concensus from the ACC Boston 2009 Conference is for legal departments to get control back by investing in in-house resources for identification of relevance in the discovery phase. The day of grin and bear it exorbinate fees are dying faster than the crash of the financial markets... successful providers will present inclusive innovative flat fee models with a re-ocurring commitment based on consistency of service, quality and proven technology resources.

Provide a formula (experience+techtools+service) that work for every matter ...
Eliminate the variable cost to identify discoverable evidence ...
Evaluation of Risk based on ROI ...

What if a provider offered ECA with advanced text analytics and a first pass review tool on 1 terabyte of uncompressed data for $50K? ...

That would be "Predictive"!
That presents more than $200K in savings based on current industry models
That gives prudence back to the ROI premise for mitigating risk before propounding litigation
That minimizes cost for responding to Regulatory Investigations
That is INNOVATION!!!

Per Gig v Flat Fee ECA? .... Seriously???

The views are those of the Author and soley represent the Author by no means do they represent any entity or employer by which the Author is affliated

Controlling Discovery Costs ... "What's in your toolbox?"

2009-10-19T15:03:00.004-04:00

Lately the rants have focused on "Why does ediscovery cost so much?...", now I feel compelled to divulge how to get cost back in line with reality.

This week Corporate Counsel from around the world will gather in Boston at the ACC Annual Meeting (10/18 – 21) to discuss trends related to “bringing control back in-house to the GC” by managing cost associated with outside counsel and the cost of discovery (specifically ediscovery). There are expected to be 3000 plus attendees over the course of the week and industry technology providers will be lining the convention halls and hotel lobby’s ready to throw the kitchen sink at passer-by’s.

Technology to run an in-house collection, review and production is widely available throughout the litigation support community. New offerings are released daily and no stamp of approval is required. Purchase at your own risk. The majority of older proven technology (more than 3yrs on the market) have moved away from the per unit pricing model to subscription based pricing models. Newer trendy technology is offered with the per unit model or a restricted subscription model.

It is a fact that using Early Case Assessment (ECA) technology will reduce the overall cost of discovery and the litigation lifecycle. The reduced cost is directly related to lowering the amount of data for review by outside counsel. The expense of discovery is typically front loaded in the sense that identification of data for review continues to be based on the total uncompressed size of ESI collected at the onset of discovery. This is typically charged by the Gigabyte. Ironically most if not all ECA software providers and vendors know beforehand that over 60% of the ESI collected will be non-relevant to the Request for Discovery or just junk.

A classic vendor tag line "Your Partner in Success"....

More often Corporate Counsel are targeted by legal technology providers with the following ROI premise as their position is simple to relate; “Reduce and manage your cost to identify potentially responsive data using Early Case Assessment platforms … additionally the cost associated for outside counsel review is more predictable”.

How many Corporations are attracted by this premise? Check out Fulbright’s 6th Annual Litigation Trends Survey Report .

Allow experience to guide one in making such decisions. Not every corporation is ready to assume the risk of internally managing the collection and first pass review with regards to a discovery request. The pure sophistication of technology gives the impression that clicking a few buttons is all it takes to have a defensible process; then pass it on to the outside counsel. Experience knows better. Experience knows that knowledgeable professionals provide consistent levels of confidence for representation. Transparency in each action is required by the courts to protect from claims of spoliation and/or inadequate productions.

Mitigation of Risk

Corporations must ask “What makes sense?”. Developing a consistent Team of Professionals with a structured process utilizing technology as necessary provides the framework for how discovery requests are handled. In addition, General Counsel will benefit from the stability of consistent defensible practices in valuating each matter in a predictive model.

The Predictive Ediscovery Toolbox:

SaaS (Software-as-a-Service): Secure Virtual Instance in a Private Cloud pre-loaded with Early Case Assessment Tools.
On-demand access: Manage and review collected ESI via a computer, an Internet connection and a web browser.
Analysis and Culling Tools: NIST, De-duplication, Custodian Segregation, Proximity Filters, ESI Reports and more.
Online Collaboration: Internet Web Based Meetings for meet & confer with Custodian for Targeted Data Review.
Search and Data Sampling: identify (tag) potentially responsive ESI by term, word counts, doc counts, keyword suggestions, entity extraction and other progressive text analytics.
Scalability: Seamlessly transition from Early Case Assessment to Linear Hosted Review platform.
Minimal investment: Virtual Instance does not require costly hardware or software installations.

Several innovative Litigation Support providers offer a predictive solution for managing the cost related to discovery. Check what's under their hood for technology offerings and experience in providing quality documented service throughout the entire litigation lifecycle. Refrain from getting caught in the “button pusher” hype of a products ease of use claim.

inspire. innovate. implement.

The above content is solely the expression of the author and does not represent any entity by which the author is contracted or employed. Content is based purely on experience and common sense approach to providing solutions beyond service to the reader of the content. Author’s expressions are presented to inspire innovation through implementation.

"Why does eDiscovery cost so much?" ... DIY Kits don't come with Experience ...

2009-09-23T09:56:00.002-04:00

In 2005 "Industry Analysts" believed that by 2014 the Litigation Support Industry would boom to a $10billion money pit. Not including Attorney / Law Firm fees. The shear amount of electronic data within companies has grown 5k% since the intrduction of Office 3.1 (Windows 95). As a society, we were once morphed about saving files to a 3.5" 1.44mb floppy disk now we salivate while purchasing 1TB external (portable) drives from Wal-mart for less than $100 ... both of which easily fit in your pocket.

Take a walk with me and lets review some more history as I attempt to paint a picture depicting the future "commoditization" of Litsupport Services.

In the early 1990's Business Process Outsourcing made great business sense as companies took notice of overhead costs that were a distraction from its core competency (and bottom line). Law Firms could easily identify with how difficult and daunting of a task it took to track and recoup "minor" expenses related to a specfic client matter. These minor expenses, if identified, could easily add revenue and profit to the bottom line. The Outsourcing concept was simple as it focused on the conversion of uncontrolled variable and consumable costs to becoming a profit center for the law firm. Today we refer to this practice of outsourcing as Litigation Support Services (Litsupport).

During the early 1990's Litsupport was all about paper. All pertinent business information was maintained in a paper document that required a multitude of duplicative sets. It was not uncommon to make 5-7 copies during discovery in preparation for a relevancy review. Easily followed by another 15 sets for productions to the Courts and Opposing Coumcil.

Year ... Medium of Discovery ... Major Variable Cost Components

1990: Paper = per Click Model

1994: Paper + Floppy Disk = per Click + per Printed Page + per Image

1998: Paper + Floppy + CD = per Click + per Image + per Printed Page

2003: Paper + CD + DVD = per Click + per Image + per Gigabyte

"Paper will go away and a new star will emerge ... eDiscovery" ... (cha-ching cha-ching)

2008: CD + DVD + External Hard Drive + Forensics + Hosting = per Image + per Gigabyte + + + +

What's next? ....

Flat Fee Pricing based per Custodian?
Monthly Volume Pricing for building / renting a Private Cloud?
Annual Subscription based Pricing?

... Death to the per Gigabyte ... ummm ... doubt it! ... You do know Paper is still here too ...

There are no pricing standards and the notion of commoditization is the culprit for this lack of standards.

The landscape of discoverable data continues to evolve at a rapid pace. Yet the demands imposed by the Courts to prepare, review, respond and exchange have not changed in a proportionate scale to the amount of effort required of Legal Teams to mount up and prepare. Legal teams continue to source, daily, for resources to meet the increasing demand imposed by the always declining ticks of time. Litsupport Services Solution providers race to release faster, cheaper, accurate SaaS solutions that inherently cost more to develop.

(hint: last sentence is an oxymoron for those not getting the subliminal message)

In 1990 a legal team could expect to pay under $15K for Litsupport Services as technology was non-existent, paper and labor were CHEAP. Today the same case strategy involves 10x the amount of data. Although technology has advanced workflows to maximize efficiency, the legal team is easily faced with spending $100k in Litsupport Services.

"Just as the World Financial Markets correct every 20 - 25 years so will the Litsupport Services Industry; often mislabled as eDiscovery" (term helps to justify lack of service required to produce)

Cost associated to purchase out-the-box software, storage and private clouds are extremly low ... (true professional would steer clear of the public cloud..right??) ... the price of Experience will always grow.

As more and more large companies gobble gobble real service providers and legal teams develop in-house platforms to curve cost associated with legal eDiscovery collections and processing ...

"Don't be a Button Pusher Buyer for eDiscovery ain't Childs Play"

... invest in Experience, SOW Standards and continuous Education and Training. Not doing so will only result in a rise of costs (redos are real $$) and possible ethical violations during the entire Litigation Lifecycle.

Sanctions Hurt!!!

"changing or blaming a Service Provider is easy ... explaining and defending internal snafu's and why capital investments sit idle .." well you get the drift.

........................................................
Theses are the sole expressions of the Author based on the experiences of the Author. The expressions do not represent any entity for which the Author is employed or contracted.
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For more common sense views from the Author:
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inspire. innovate. implement.

Take your time when in the "Clouds" ... Think Defense

2009-09-17T22:27:00.001-04:00

... continued from May 2009 post http://tinyurl.com/cmesul ...

1. What lives in your "Cloud"?
2. Where does your "Cloud" hover?
3. What is stated in your "Cloud" EULA?

Lets begin with those simple questions. If the answer includes a stutter or hesitation the discovery phase of litigation just got real expensive.

Listen up (read closely)!

The bleak economy has caused most companies to panic over luxury expenses like new desktops, laptops, servers and storage. The notion of cloud computing is extremely appealing as a form of modern day Technology Outsourcing. Electronic communications and other edata considered Highly Confidential is re-assessed and downgraded to levels that don't require as much privacy. Privacy that is challenged within the "Cloud".

Wait how dare one suggest that your "Cloud" is not secure? ....
.... Secure maybe ... but definitely not Private and definitely Easily Accessible ... definitely Discoverable!!!

Corporations use of external "Cloud" computing and storage should only be limited to normal course of business documents and document templates. This applies to entities where an internal VMware, SBS and/or Email Server setup is not existent or feasible. Thus services from Amazon, Google and Microsoft are appealing as the bright idea light shines a message reading it's safe to store and manage all corporate data in their stratosphere.

"... their stratosphere" ...

The company is provided a block of space with the ability to grant endusers access to the block. Endusers have the permissions to read, edit and publish content within the block via any internet connection. The uptime and maintenance are managed by the block provider. A true convenience and excellent method for reducing costs related to capital expenditures.

Soooo ... Where is this "block" of space?; Which server is being accessed that provides and tracks permissions for the corporation to the storage device?; Who is monitoring activity to slow and deter unauthorized intrusions?; When the shared storage is full how is block space reallocated, distributed and made seamless when more is requested?; Should one really be concerned with such a trivial thinking? ... Is this a Privacy concern? ... Perhaps ....

Hopefully with adding "Cloud" computing and storage solutions to the business process model, the wildly old Veteran IT Professional is still employed (or at least on retainer). Most human beings treat the complexity of "Cloud" computing as a simple brainless way to manage and store edata "however you like". Which is great, until an investigation ensues.

Investigations are no longer centric to office equipment and storage. In recent years there has been sharp increase in the seizure of endusers "personal" home and portable equipment in response to a corporate investigation. The primary goal of the Investigator is to report on where information was created, when it was created, who the information was shared with and the number (location) of instances for where the information lives. A cumbersome yet fairly straightforward task for the Investigator ... except .... today the "Cloud" renders new challenges for Investigators.

When investigating data sources not managed directly by the company nor the enduser, the "Cloud" EULA agreement is critical. Within a matter of seconds the Veteran IT Professional can provide the internal computer architecture Archive & Retention policy as well as the backups if required for the investigation. Investigators are very interested in how data is kept as it gives character and shows trends within the business process model. Most have no working knowledge of how nor when or where their data is being replicated or archived by the "Cloud" provider. There is not any legislation that currently addresses the expected role of the "Cloud" provider to assist/respond in such investigations. Nor are there any standards for accessing and "downloading" data kept within the "Cloud" for preservation and review. Email host (cloud) providers included.

How to prepare for a "Defensible Collection" from the Heavens? ... The common sense approach

Collecting eDocs
Investigators, with the Veteran IT Professional, first focus on obtaining access and usage log reports from the "Cloud" provider. If attainable, will present a tenative roadmap depicting the history of when files where published, accessed and modified within the "Cloud". Second, if attainable, a request of system maintance logs for the corporate "block(s)" from the "Cloud" provider. Third, a directory listing of data stored within the "block". This is used in the attempt to implore visual logic in the identification of potentially responsive edata, in most cases this is not nearly as effective for data in "blocks". The system metadata is not reliable thus all of the data needs to be shut off from access to the endusers so the data can be downloaded and preserved for review. Depending on the sensitvity of the case, good lawyering skills and shear volume of data will determine the amount of time the corporation, endusers and "Cloud" will be potentially be crippled. During the course of a typical investigation any unauthorized proprietary information violations are removed before returning collected evidence ... This topic alone deserves a separate post for how to permanently remove such edata from within the "Cloud".

Collecting eMail
Microsoft Outlook is no longer the standard for accessing, downloading and managing web-based email. In the same manner that implementing a Hosted Exchange Server is becoming a standard for businesses as it has become increasingly burdensome to combat spam and the hackers.

The Investigator no longer just ask "where is your exchange server and what is your email retention policy?". Today it is more concise to ask, "how is email managed?". Are endusers permitted to access personal webmail through the corporate email client?

In this mobile age the demand from technophytes to have unlimited access to information has birthed FREE resources to meet every need. Especially EMAIL. Internet email giant AOL just within the last 5yrs began offering free screen names in a move to compete with the popularity of Yahoo, Google and Windows Live (the new hotmail). It is predicted that 1 out of every 5 humans has a gmail, aol, hotmail and/or yahoo email account. For the humans that are employed, 3 out of 5 forward business emails to their personal email account as a matter of future reference.

Taking these types of statistics into consideration, the Investigator is required to engage each enduser about their personal email management. Typically IT can't and doesn't control or regulate these activities.

"... everyone received and signed the handbook acknowledging the Computer and Internet policy ..."

As this trend becomes even more common the need to collect from enduser personal webmail clients becomes a necessary intrusion. The most common forms are POP3 and IMAP mail. The method of analysis and collection will vary for each type of webmail client. The most common collection utility for webmail is to capture (download) to Microsoft Outlook Client and export to a .PST file. The process needs to be recorded in the chain of custody documentation and audited for accuarcy.

In closing for now, in the event your company is considering implementation of "Cloud" computing make certain of these items:

1. Update the Archive and Retention Policy to include the "Cloud"; and
2. Update the Internet and Computer Use Policy to include business emails and transmission of business email including using personal thumb drives.

The author is a supporter of cloud computing and believes that caution must be exercised before one leaps. The opinions are solely those of the author and experiences of the author's tenure in Legal Discovery.

"Why does eDiscovery cost so much?" ... Increase your knowledge and Reduce your Costs!

2009-09-14T11:32:00.001-04:00

ARMA International and ILTA present the Legal Infrmation Technology Conference 2009. The Conference is being held in Orlando Florida and is focused to educate legal professionals on topics like information management, upcoming new regulations for information management and how to reduce the impact of cost associated to information management.

For the serious concious Legal Professional this conference should be added to the list. As well as the ARMA conference that will be simultaneously occuring at the same venue during same time. The $1,200 attendee fee and cost of travel are well worth the expense. Considering the knowledge to be gained and how it can the translate into saving $1,000's with regards to Legal Discovery Costs.

Read more about the conference at www.arma.org/lit-con

Disclaimer: The Author has no affliation with ARMA International nor ILTA. The opinions are soley those of the Author based on common sense.

"Why does eDiscovery cost so much?" ... Make a living Archive & Retention Policy it will save $1,000's

2009-09-06T10:31:00.001-04:00

By no means do I claim to be an authority in Records Management. As of date eighteen years and six months of experience with the Discovery phase of litigation have shown me that not enough emphasis is placed in Archive and Retention. Every organization has a policy ... fact is that its just that ... a policy. A policy is dead without enforcement. Thus Discovery Professionals flourish as a result of negligence.

Try this out for size...

1. Legal matters rise from information one party claims against another to be damaging or acquired and used in bad faith;

2. Information is presented in the form of correspondences and other evidence whether in paper, electronic or audio format;

3. All forms of information are subject to evidence discovery in response to an investigation or legal claim; unless

It can be proven that only a signifcant set of isolated evidence information is responsive.

"ARMA International (www.arma.org) has been in existence since 1955. ARMA provides standards for managing records and information - paper and electronic."

No matter the Industry there is a regulatory stipulation defining a specific time requirement for maintaining business related records on and off-site. The boom over the last decade has been to create the electronic file room or eFile Room. The concept involves scanning both archival and day forward paper records to servers like Microsoft SharePoint. Additionally any and all electronic documents from all departments, including emails are stored in the eFile Room. All this is done to ease the burden of File Managers and increase efficiency with the accessibilty of business documents. The eFile Room provides a sense of security as the probabilty of ever losing a document is minimized. Record Retention Compliance just got simple (or did it).

"... eFile Room records management platforms save the environment while at the same time expose serious risk when faced with a regulatory investigation or a legal matter ..."

What!?!...
........Why!?!...
.............."Prove it" says the Bright Idea Professional

The latest commercials from Intel, Amazon, Microsoft, IBM and other leaders of collaborative technology paint a picture of safety in the "Clouds". The message is the future for how families and business professionals will be able to manage their day-to-day affairs without fear of ever losing a document. As well as the sublimable message that your data is "Safe". Yet another great tool to save the environment; its efficient and productive records management; provides ease of on-demand accessibilty and lets not forget it will be just as easy to get all evidence in response to an investigation or legal matter.

It is darn right scary to imagine the effect of an investigation or legal matter that demands a response where evidence is requested from a person or business entity that doesn't "recycle".

Adherence to a documented Archival and Retention Policy will save $1,000's in cost associated with responding to a claim or investigation. Business and/or Personal.

"...most people... like to be nostalgic and collect junk ... " know when to unload

Here are some basic items to consider for the eFile Room and/or "Cloud":
Active Records
Archive Storage
Rules for Destruction

Just like two decades ago, businesses depended on the document clerks and file room managers to be responsible for archive and retention rules. Today this type of responsibility is no longer centralized. Yes there is a central efile room, yet anyone can make a deposit with the hopes it is in the correct "cabinet" (directory or folder). The major difference now is the activities of the efile room require a Monitor better referred to as the eLibrarian. The same governence that set the standards for Records Management then apply today for the eFile Room Managers.

eFile Rooms require continuous development, implementaion and monitoring of a Smart Archive & Retention Policy. The policy can no longer just be written by IT and Human Resources. The Legal Response Team must be included along with a traditional Records/File Room Manager.

Again, Yes! the type like everyone had in 1980! Not like these newbees who don't know true organization techniques. The tenured Records Manager knows the rules for document retention and is the best translator for defining where documents should live within the network. They will also know who should be allowed access to business critical documents including those related to human resources, accounting, legal and regulatory matters. These Professionals also have the knowledge and experience for the Archive storage (off-site) and destruction schedules.

Get the picture ....

"... The more eRecords one has reasonably accessible ... The more it will cost in time and dollars to develop a response ..."

Consistent education and communication are the keys to success. All IT Professionals and anyone claiming to be an eManager, eLibrarian or whatever your college has dubbed as the cool name...should be required to register and actively participate in ARMA. The decisions made by these professionals for corporations will either be viewed as Smart Policies or be the nightmare of the Discovery Phase of a Regulatory Investigation or Legal Matter.

"don't be an eRoom dumper & don't be a follower when playing in the CLOUDS as the dangers are unforeseen ..." (similar to that of a Prickly Pear Mojito)

"Why does eDiscovery cost so much?" ... The Value of ECA...

2009-09-04T08:13:00.001-04:00

There is one simple premise here....ask the right questions upfront to uncover thought and fact. When one relies soley on the sales pitch of the software business development guy who says use this form and click here....well...need I say more?

"YES...YOU ARE RISKING THE FARM"!!!

ECA a.k.a Early Case Assessment is the latest buzz term to describe "sophisticated" project management. Project management is no longer people driven. Instead we have gotten caught up in the perception that people make mistakes and automation is accurate. Thus it only requires the right tool and a documented statement of work by the IT guy running the $80k appliance at $225/gb of ingested ESI per matter.

Project managers provide added value for their leadership, experience and ability to communicate the process including the risks involved. Which is the exact same expectation for doing ECA (Early Case Assessment).

A "Professional Title" doesn't define knowledge; Knowledge is only gained by experience; Experience requires time; there are no shortcuts in TIME.

Here are a few factors to consider when building your Legal Response Team:

Experience
Defensibility
Reliability
ROI

The prime benefit in ECA is to set the stage for litigation review and response. ECA that includes ESI identification via e-scoping and datamaps before preservation and collection.
Implementing this type of Smart Discovery technique has a direct effect with managing the esclating cost of discovery for litigation.

The average legal matter has a value of $1,000,000 thus a legal budget of not more than $300,000 in total. The case will average 5-10 custodians with 3 evidence items each and a corporate business server.

In the above example there is the potential of more than 3 terabytes of data to preserve and analyze for responsiveness. Using the standard EDRM model without Smart Discovery techniques for data preservation could cost in excess of $300,000...before Attorney Fees!!!!!

"I know my case is strong" ... Ummmmmm ... BUDGET BUSTER ... "Which way is OUT!?!"

It becomes apparent really fast that experience and logic are required components to the solution. The notion that technological automation will save time doesn't equate to saving money. Experienced Legal Professionals with eDiscovery Consultants and Corporate IT as part of the Legal Response Team logically identify ESI to be collected and preserved.

"Reducing the junk will trim the ESI to be collected by 70%" ... I dare you to do the math....

The value of ECA (early case assessment) is in People not technology, SaaS or whatever your buzz word is today. Invest your confidence in those who have taken the steps to invest in themselves and education by experience. Far too often "Professionals" get caught in the hype of a cool new feature and don't equate the value properly. The equation most use is improved efficiency will reduce other manual cost while increasing productivity, consistency and accuracy.

"Technology is a compliment to the human mind...not a replacement for intellect".

Looking beyond the Glass Ceiling....

2009-06-27T18:23:00.000-04:00

Today I had the opportunity to witness our future firsthand as I watched 37 open-minded teens from various backgrounds board a bus as they begin a journey to travel across the world. These kids represent our future just as we once did.

The difference is that they had no fear about traveling during this period of unstable economic and social discord throughout the world. Only adults fear what we see from afar. What they were most interested in was looking forward to seeing, meeting, and tasting heritage of another land. They were all eager to learn and share dreams for a building and leading a better tomorrow.

No matter your political, social or religious affiliation....our future is not determined by our path but by the path that was laid before us. Every decision we make will shape our history and set a stepping stone for another generation to build upon if they believe we made the right choice.

A few months ago admist hard work and a bleak financial forecast for the world economy, my family decided to make an investment. This investment we felt would provide the greatest ROI. We made it possible, with help from friends and family, for our child to be educated through hands-on real life experiences. For the next 3 weeks she will travel, live and learn with 36 teens of whom she has no prior affiliation and learn why heritage is important and how heritage shapes our planet.

During this time I ask that you join me and repeat a simple chant..."Thank you GOD for providing me the path to see touch and hear so that I can learn share and do your will. For this I shall stay steady in our walk to experience the fullness of Grace".

Don't be a "Button Pusher" Buyer....

2009-05-27T00:23:00.021-04:00

Its has been a practice of mine to continually stay in the know of whats going on the area of technology as it relates to Litigation Support. I make it a point to listen to at least 3 web casts per month, daily reading of my favorite RSS Feeds and Industry Bloggers as well as participate in evaluation of software and appliances directly related to providing efficient Litigation Support Solutions.

and from Time to time I get inspired to comment....

For the last several weeks I have had the ability to view emerging products set to be the next Clearwell Killer. Which has opened my eyes to a few different things:

1. Clearwell is the "house hold" name in Early Case Assessment; and

2. By the constant mention of others referring to Clearwell, they must too agree; and

3. Quality Forensic Analysis & "Experts" are about to become a dime a dozen. LMAO

Listen up folks ... THERE IS NOT ONE SOFTWARE OR APPLIANCE ON THE MARKET THAT WILL DO ALL THAT IS REQUIRED FOR SOUND DISCOVERY. EACH AND EVERY ONE HAS A FLAW!!.

Question is which has the least flaws and a great support team? thus...

Beware of the attractive price points and the fast ROI for investing in your next piece of eDiscovery Work flow software or appliance. Will your new provider testify in court on your behalf to support your work flow? Are you outpacing your market? Is the software or appliance provider going to be in business in the next 5 years (when your market has finally caught up)?

Having a seasoned Forensic Expert (sometimes referred to as Discovery Consultant) on staff (or retainer) to participate in the evaluation of such software or appliances is the best first step. NOT the edd technician who is totally focused on processing and being the "button pusher".

"An understanding of file systems is essential for any computer forensics
examiner. Without that understanding, the forensics examiner is merely a button
pusher that accepts whatever the forensics software reports, without truly
knowing what is going on under the hood"

Experience in People COUNT!!!

The success level of every case first depends on the accuracy and inclusiveness of the discovery. Take the time to do the research required and not be driven by cost and goo goo eyes before adding to your tool bag of solutions.

"Being the Guinea Pig does not excuse one from Sanction"

Censorship 2009: H.R.4789 The Performance Rights Act

2009-05-14T20:20:00.021-04:00

Disclaimer
The views expressed below are those of the author and none other. Should you disagree, that is your right as it is my right to express opinion freely to those that choose to listen. The view is not intended to cause a stir in the community against an person or entity. Continue at your own risk as I use the Constitution in my favor.

The Congress of the United States and other Civil groups for years have been working to tightly regulate mainstream radio, television, movies and other forms of artistic expression. The goal in mind is one that is noble and follows moral standards of Christianity. As a proud Christian I have supported most of the legislation enacted by Government Officials that call on a tough moral not political decisions for the good of the Nation.

Yes. I support:
Pro Choice
Gay Marriage
Death Penalty
Torture of Terrorist

The Recording Industry Association of America and the Motion Picture Association of America are both are great organizations that protect (and regulate) artist and freedom of expression throughout the world. Both these groups are funded by the artist and the respective companies that distribute the various forms of media to the consumer.

As a '70s baby I had the privilege of being brought up during original RAP, the Playboy & Hustler boom, Satanic Heavy Metal, Sex in advertising and Soulful sultry provocative sounds of artists like Teddy, Marvin and Eddie. All of which I could sample for free to determine it was for me.

In the early '90s as original RAP music became HIP-HOP and the artist entering the game began to tell different stories about their experiences. HIP-HOP expressions were more in your face than the soft undertones of original RAP which led to an uproar all across the Nation. And then without saying gangsta RAP emerged. This uproar was charged with several motives by those who believed such expressions were not appropriate for public display outside of the ghetto's of America.

You do remember ICE T before CSI: Special Victims Unit and who could forget FLAVA FLAV before the Flavor of Love.

Luckily after several years of this debate the RIAA and MPAA along with the FCC defined laws that didn't suppress the artist expressions, yet they simply regulated promotions of the artist work. This led to artist with controversial expressions to be more encouraged to make a radio cut and an album cut so that their music would still be played on mainstream radio to attract attention to the artist and not diminish record company marketing of the artist. I like to refer to these acts as a small form of censorship that has never been widely accepted by the politicians or the “original suburbanites”. The expectation was that Hip-hop would be outlawed.

Just because EAZY-E had a problem with the POLICE and Dre liked to talk about The Chronic...

My own Mother was in on the conspiracy too: I wasn't allowed to go see one of the greatest concerts in the world as a teen...RUN DMC 1986 “Raising Hell Tour" .... lmao now at how blind she was then! All I do is raise Hell and love to “Walk This Way”....

The standards mentioned above have become more widespread over the years affecting multiple industries more so than ever. Television shows now are under great scrutiny to be as vanilla as possible, News Commentary is not nearly as free and open (unless you are on the FOX NEWS Network or Roland Martin) even video games are subjected to intense scrutiny. And now we have a resurgence from the “Old Skool” to get radio in line with the other industries that have been scrubbed for “the good of humanity” (loud sneeze).

H.R.4789 The Performance Rights Act is some cocky mani bull crap that has evolved from the whines of record companies and folks who have forgotten about '69 Woodstock Festival. So, over the last dozen or so years there comes another premise....GREED!

Lets be real for a moment....

Legislation like this stems from issues surrounding piracy and declining profits for the music and film recording industry. The ultimate effect will be music censorship and the demise of broadcast radio.

A Conspiracy Theory:
Radio stations make money from local and national advertisers; the radio stations pay operating expenses; then stations pay record companies to play artists music; then stations get more selective of channel line ups to maximize the Nielsen ratings; local and controversial artist don't get played or signed by record companies for fear of lack of interest; local artist revert to selling music out of trunk; consumer keep hearing same music year after year on radio because its proven.....have I lost you yet?

Should this legislation become law then I predict that radio as we know it will change and many will be standing going what happened...except for the satellite radio providers who stand to make a killing from the demise of broadcast radio.

Check out the following articles and form your own opinion:
http://www.blackamericaweb.com/?q=articles/news/moving_america_news/9322
http://www.nuvo.net/music/article/rethinking-radios-pay-play
http://arstechnica.com/media/news/2009/02/new-radio-pay-to-play-bills-pit-riaa-against-broadcasters.ars
http://www.usatoday.com/money/media/2009-02-24-pay-to-play_N.htm
http://www.audiographics.com/agd/051309-1.htm
http://www.radioink.com/Article.asp?id=1321633&spid=24698#Scene_1
http://www.opencongress.org/bill/110-h4789/show

I expect that if this legislation and the lobbyist get through both the House and Senate that a VETO will be hammered down by President Obama. In addition we '70 – '92 babies who made the historic change this past November will remember these conditions and persons listed below at election time:

H.R.4789 The Performance Rights Act purpose is to provide parity in radio performance rights under title 17, United States Code, and for other purposes.

Performance Rights Act - Amends federal copyright law to:
(1) grant performers of sound recordings equal rights to compensation from terrestrial broadcasters;
(2) establish a flat annual fee in lieu of payment of royalties for individual terrestrial broadcast stations with gross revenues of less than $1.25 million and for non-commercial, public broadcast stations;
(3) grant an exemption from royalty payments for broadcasts of religious services and for incidental uses of musical sound recordings; and
(4) grant terrestrial broadcast stations that make limited feature uses of sound recordings a per program license option.

Provides that nothing in this Act shall adversely affect the public performance rights or royalties payable to songwriters or copyright owners of musical works.

The following sponsor this proposed legislation:
Rep. Howard Berman [D, CA-28]
Rep. Marsha Blackburn [R, TN-7]
Rep. Steve Cohen [D, TN-9]
Rep. John Conyers [D, MI-14]
Rep. Anna Eshoo [D, CA-14]
Rep. Kay Granger [R, TX-12]
Rep. Jane Harman [D, CA-36]
Rep. Paul Hodes [D, NH-2]
Rep. Jay Inslee [D, WA-1]
Rep. Darrell Issa [R, CA-49]
Rep. Sheila Jackson-Lee [D, TX-18]
Rep. Henry Johnson [D, GA-4]
Rep. Jerrold Nadler [D, NY-8]
Rep. Linda Sánchez [D, CA-39]
Rep. Adam Schiff [D, CA-29]
Rep. John Shadegg [R, AZ-3]
Rep. Brad Sherman [D, CA-27]
Rep. Louise Slaughter [D, NY-28]
Rep. Edolphus Towns [D, NY-10]
Rep. Zach Wamp [R, TN-3]
Rep. Debbie Wasserman Schultz [D, FL-20]
Rep. Anthony Weiner [D, NY-9]
Rep. Robert Wexler [D, FL-19]

pt2. Electronic Evidence is Everywhere....Get A Grip!!!

2009-05-07T09:37:00.009-04:00

This thing called eDiscovery is not new and I fail to comprehend why some still take it so lightly as it is not for the novice or "faint at heart". As our world has evolved resulting from the efficiencies presented by great minds like Bill Gates, Steve Jobs and other IT geniuses; our "privacy" is no longer private. The moment you log on your computer or sign on the Internet you are exposed.

What makes one think that full disclosure is not required? It shocked me this morning while catching up on news articles to read the following case opinion recently released on May 6, 2009 by K&L Gates:

Granting Motion to Compel, Court Orders Appointment of Independent Expert "to Retrieve any Deleted Responsive Files from Defendants' Computers"

If there is one thing that world should have learned from our most recent Presidential election is that TRANSPARENCY across the board is the new standard. Could this have been avoided with the proper Early Case Assessment Consultation?

Yes! Going into or responding to a legal or regulatory inquiry without mitigating the risk through an Early Case Assessment Consultation is not smart by any means.

Take your time when in the "Clouds"

2009-05-07T08:54:00.005-04:00

The notion of cloud computing is the hot topic for emerging Corporate IT professionals. Will it ultimately become a nightmare for them and and their Counsel?

It doesn't have to be when the right questions are asked during the Early Case Assessment process. Consider yourself warned!

Beware of the Cloud and its simplicity http://bit.ly/lui86 in eDiscovery.

The Litigation Hold Letter....

2009-04-15T11:13:00.013-04:00

More and more over the last 18 months my team has been brought in at the onset of a pending case. Mostly by firms that could write a litigation hold and discovery request letter without thinking twice for a typical case that is dominated by paper based record keeping.

In this day of digital record keeping (a.k.a. electronically stored information) the Litigation Hold Letter has taken on new form. Much more needs to be considered about what one expects to gain from the other side during discovery. The letter is not a discovery request, it is designed to identify potential sources of evidence and the manner in which evidence should be preserved.

For additional information please see the post from Joshua Gillard, Esq. Bow Tie Law's Blog on What Goes In a Litigation Hold Letter? In the very near future I will be posting sample Litigation Hold Letters at http://www.slideshare.net/OCIMGMT.

"The foundation of the case starts with a notice to preserve..."

The world is ready for CHANGE...

2009-04-09T11:09:00.005-04:00

The following clip was sent to me by a friend and it speaks volume all of its own...

You won't see this photo on CNN. Everyone is too busy showing the Queen being touched. This was a moment of "touching" that won't be forgotten by this bobby.

"This is the most powerful photo in the series. Remember they are not supposed to shake hands, but the two brothers couldn't resist the historic moment. The black royal cop never imagined in his wildest dream that he would usher a black American president into the British corridors of power. Nice."

The Madness begins! An open Challenge to ALL.

2009-03-15T12:07:00.004-04:00

This is your official invitation to be a part of some
fun during the most exciting unscripted time of the year.

Sign up now for the Superior Document Services 9th Annual Pick'em Right Challenge.

Click here for more information about the challenge and prizes.

Electronic Evidence is Everywhere.....Get A Grip!!!

2009-01-15T01:30:00.006-05:00

The 2008 failures in worlwide economics is far unlike the econimic crash during Great Depression of 80 years ago (October 1929). In our current legal system there will be a relentless effort by the Government, Reulatory Agencies and the Consumer to point a finger away from itself.

"HOW COULD YOU LET THIS HAPPEN?"

Corporate entities can't just lose, shred or burn the paper away to escape accountability. The untracebales are even traceable. Especially now that electronic document transmission is now the most common form of communication. The influx of law and industry regulation to measure accountability and responsibility of corporations has lead to the creation and adaptation of laws designed to keep pace with how companies conduct business.

Electronically Stored Information (ESI)
= The Double Edged Sword.

I expect that 2009 will be full of Government and Regualtory Agency investigations across all Industries. These events could cost companies their existence if they dont get knowledgeable about how to respond to electronically stored information document requests. See Ralph Losey's post about D.C. Appeals Court Affirms Order Requiring a Non-Party to Spend $6 Million, 9% of its Total Annual Budget, to Comply with an e-Discovery Subpoena

The idea that a company can sit and wait to see if the lambs blood will protect it from big brother is not enough in this era of eDiscovery and digital forensics. Inside Counsel and Corporate IT departments along with outside Counsel must take steps to get a grip on ESI. In most cases establishing some basic common sense approaches along with written policies provide adequate protections. This apporach will also bring greater awareness to managing ESI from a legal perspective as well. Implementation of technology to automate the process of ESI identifiation and preservation will provide the level of compliance to respond to discovery request with ease and minimal 3rd party costs.

"America was built on the premise of blood, sweat and tears
as it equated to hard work....Today, we survive by working smarter through use of technology"

The following article published by, Lucas Mearian and Computer World, continues to re-enforce the fact that many Corporate Entities in vaious Industries today will be caught with no real protection other than the blood of the lamb and unfortunatley it won't stop the clouds from sweeping in low looking for evidence.....:

Wall Street crisis brings lax e-discovery law enforcement to light
IT managers expect U.S. to add new regulations, boost enforcement
Lucas Mearian

The financial crisis on Wall Street has prompted numerous investigations into the lending practices of financial services firms, all with a similar focus: Who knew what, and when did they know it?

Strong electronic records retention plans could help users quickly answer such questions. However, industry observers note, few of the records-retention regulations enacted over the past decade have been strongly enforced, and most companies have done little to comply with them.

Analysts warn that the fallout from the Wall Street meltdown will lead quickly to stronger enforcement of existing laws -- including the Sarbanes-Oxley Act, the Electronic Signatures in Global and National Commerce Act, the U.S. Security and Exchange Commission's Rule 17A-4, and the Gramm-Leach-Bliley Act -- and perhaps some new ones targeting the financial services industry.

At the same time, the health care industry faces more scrutiny as it hastens to move to a national e-health system.

Today, only 10% to 15% of U.S. corporations have electronic records retention systems in place, according to Gartner Inc. "In terms of a good electronic records systems, I would say it's closer to zero," said Debra Logan, an analyst at the consulting firm.

"There will be an increase in regulations," predicted Hugo Torres, IT director at Coral Gables, Fla.-based Great Florida Bank. "We've gotten wind of it. We'll be more heavily regulated than before."

Until two years ago, Torres said, it was common for four bank examiners to audit Great Florida Bank annually. Last year, as the crisis grew, 12 examiners inspected its records. Torres said he's bracing for even more auditors in 2009, as state and federal agencies scour every commercial and consumer loan to make sure that banks performed adequate due diligence to determine the borrowers' ability to pay.

Logan said that stronger retention systems will also help companies to better defend themselves against legal action by disgruntled customers or employees.

"The amount of litigation that's going to be generated out of this Wall Street meltdown is going to be unbelievable. The regulators will be asking the banks what happened," she said. Lawsuits stemming from problems at government-backed mortgage finance companies 'Freddie Mac and Fannie Mae will result in systemic change," Logan added.

Bill Savarino, a partner at Washington-based law firm Cohen, Mohr LLP and an expert in e-mail retention and other regulatory issues, said he expects that Congress will overreact to the Wall Street crisis and enact new legislation.

"I don't know if it's necessary," he said. "If they enforce the stuff they've got, we should be fine."
Savarino, who has been advising IT managers on data retention issues for the past seven years, said that companies that are implementing retention systems today often do little more than keep data for 30, 60 or 90 days and then hit the delete button. In such cases, legacy documents are unavailable, and it isn't possible to show trends over time, he noted.

"I do not subscribe to the 30-, 60-, 90-day policy. I think they are woefully inadequate, and I don't think they comply with most rules and regulations," Savarino said. "When regulators audit regularly and investigate regularly, that's when they're going to start discerning who's keeping e-mail and who's not. They just haven't been doing that on a regular basis."

Savarino said IT managers and corporate legal departments should take the following three steps to prepare for the coming oversight onslaught:

Learn what the data retention laws require specific industries to do.

Install packaged archival and retrieval tools because it's too difficult to handle those tasks manually.
Utilize outside legal counsel.

"I know that sounds self-serving," Savarino acknowledged, "but outside lawyers can help companies figure out what the laws are and establish retention schedules and determine how to set up electronic archive 'buckets' to hold on to e-mail and documents."

Lawyers can also help set policies, procedures and parameters to deal with litigation holds, which require firms that have been notified about a potential lawsuit or government investigation to retain all potentially-relevant electronic documents. Two years ago, Congress approved the Federal Rules of Civil Procedure, which set a baseline for which electronic documents must be retained and retrievable by corporate litigants in a court case.

After completing an initial public offering two years ago, Great Florida Bank installed a complete electronic-documents archive and e-discovery system to deal with the additional regulatory oversight facing publicly-held financial institutions.

The e-discovery system, from Santa Clara, Calif.-based Mimosa Systems Inc. -- along with two Hitachi storage-area networks (SAN), and Exchange and a SQL server cluster upgrade -- cost $500,000, and it was worth every penny, Torres said.

Now all of the bank's e-mail and electronic documents are automatically indexed and stored on the two SANs, which replicate the data for disaster recovery.

Torres said the system is very helpful in the auditing process and will likely help the bank deal with any lawsuits filed against it by ex-employees or customers.

Great Florida Bank, which employs 275 people and has 26 branch offices in three counties, maintains 32 servers in its data center.

Many health care firms are turning to such systems as the federal government increases emphasis on electronic health records systems, setting up systems and enforcing the Health Insurance Portability and Accountability Act.

In addition, an increase in the number of lawsuits against health care providers has forced them to implement measures to better protect patient data and store it for set periods of time.
Wyoming Valley Health Care System Inc. turned to CommVault Systems Inc.'s Simpana e-discovery software last March after a lawsuit was filed against one of its hospitals.

Howard Dowell, a network analyst at the Wilkes-Barre, Pa.-based health care provider, said the software automatically indexed four years' worth of e-mail over a weekend and provides a Google-like search engine for retrieving documents.

"Our system is giving us results in seconds," Dowell said, noting that it can be used to search by keyword, date, the name of the sender or a phrase. "Basically, I get it back like a Google search page with all the hits, I can save it as a PFT or .Zip file and examine it later," he added.

Wyoming Valley Health Care's data center runs 200 servers, 90% of which are Wintel boxes, and it has 1,200 e-mail users. Electronic documents are indexed on two servers and then stored on an EMC Clariion SAN.

However, Logan said, most companies "are standing there like deer in the headlights," Logan said.

"We have to have a more disciplined process for working with electronic records regulations," she said. "We need to have people in charge of managing information for the entire company. Today, everyone's expected to manage their own data."

As e-discovery pressures grow, companies and regulators must work together to determine which business documents are truly critical, Logan added. "People have to start throwing stuff away. It's not all precious," she said. "There needs to be some change to separate the wheat from the chaff."

Obama's big idea: Digital health records....Change is here

2009-01-12T09:08:00.003-05:00

In response to my most recent post, "Insurance Discovery Readiness....Don't be caught drowsy", the article below touches on the core of the debate and rising concern that more attention must be paid to how the Insurance and Medical Care providers account for record keeping...

article courtesy of http://money.cnn.com/2009/01/12/technology/stimulus_health_care/index.htm

President-elect wants to computerize the nation's health care records in five years. But the plan comes with a hefty price tag, and specialized labor is scarce.

By David Goldman, CNNMoney.com staff writer
January 12, 2009: 4:05 AM ET

NEW YORK (CNNMoney.com) -- President-elect Barack Obama, as part of the effort to revive the economy, has proposed a massive effort to modernize health care by making all health records standardized and electronic.

Here's the audacious plan: Computerize all health records within five years. The quality of health care for all Americans gets a big boost, and costs decline.

Sounds good. But it won't be easy.

In fact, many hurdles stand in the way. Only about 8% of the nation's 5,000 hospitals and 17% of its 800,000 physicians currently use the kind of common computerized record-keeping systems that Obama envisions for the whole nation. And some experts say that serious concerns about patient privacy must be addressed first. Finally, the country suffers a dearth of skilled workers necessary to build and implement the necessary technology.

"The hard part of this is that we can't just drop a computer on every doctor's desk," said Dr. David Brailer, former National Coordinator for Health Information Technology, who served as President Bush'shealth information czar from 2004 to 2006. "Getting electronic records up and running is a very technical task."

It also won't come cheap. Independent studies from Harvard, RAND and the Commonwealth Fund have shown that such a plan could cost at least $75 billion to $100 billion over the ten years they think the hospitals would need to implement program.

That's a huge amount of money -- since the total cost of the stimulus plan is estimated to cost about $800 billion, the health care initiative would be one of the priciest parts to the plan.

The biggest cost will be paying and training the labor force needed to create the network. Luis Castillo, senior vice president of Siemens Healthcare, a company that designs health care technology, said the laborers will have the extremely difficult task of designing a a system that "thinks like a physician."

"Doctors cannot spend hours and hours learning a new system," said Castillo. "It needs to be a ubiquitous, 'anytime, anywhere' solution that has easily accessible data in a simple-to-use Web-based application."

But highly skilled health information technology professionals are as rare as they come, and many IT workers will need to be trained as health technology experts.

Early government estimates showed about 212,000 jobs could be created from this program, but Brailer said there simply aren't that many Americans who are qualified.

Furthermore, ensuring the privacy of patients' records in a nationalized computer network will be tricky. There are obvious concerns about hackers and system failures. And new online health record systems, such as Google Health are not currently subject to the Health Insurance Portability and Accountability Act, the national health privacy law.

"HIPAA was never intended for the digital age, because the laws never anticipated the emergence of Web-based records," said Brailer. "Congress can pass one of numerous policy proposals for change, it's just a question if they have the will to do that."

Jobs and savings for the future

The Obama transition operation declined a request to elaborate on Obama's proposal. The president-elect said Thursday in a speech on the economy that the benefits of a modernized national health record system go beyond just cost savings.

"This will cut waste, eliminate red tape, and reduce the need to repeat expensive medical tests," said Obama. "It just won't save billions of dollars and thousands of jobs -- it will save lives by reducing the deadly but preventable medical errors that pervade our health care system," he added.

Still, compared to the $2 trillion a year that the industry spends, the$100 billion experts say it may cost to implement Obama's plan is a drop in the bucket.

"We must reduce waste to become more efficient" said Brailer.

The savings of such a plan could be substantial. Brailer estimates that a fully computerized health record system could save the industry $200 billion to $300 billion a year.

That could ultimately slow the rapid rise of health care premiums, which have cut into Americans' paychecks. While wages are rising at a rate of around 3% a year, health care costs are growing at about three times that rate.

"Obama's support for electronic medical records is one of the key efforts of health reform that actually will deliver lower costs for hard-working American families," said Larry McNeely, a health care advocate at U.S. Public Interest Research Group. "Long-term savings can't happen unless we have 21st century health information technology."

Massachusetts has developed a plan to fully computerize records at its 14,000 physicians' offices by 2012 and its 63 hospitals by 2014. After a pilot program, the state legislature estimates it will cost about $340 million to build the statewide computer system, with a cost of about $2 million per hospital.

"[Obama's] timeframe is very ambitious, but there is a need to be able to track data on patients and talk across providers and health care systems," said Dr. JudyAnn Bigby, Secretary of Health and Human Services for Massachusetts. "The program will allow for greater patient safety."

Some say some of the hard work has begun. The Bush administration laid much of the groundwork for the program, leading to several pilot programs in a handful of states, as well as a standardization of medical records.

"The whole structure has already been developed," said Stephen Schoenbaum, executive director of The Commonwealth Fund's commission on a high performance health system. "It's feasible to at least make a lot of progress on this in the next five years."

Insurance Discovery Readiness....Don't be caught drowsy

2009-01-08T12:31:00.012-05:00

For the last 6 months I have been researching the impact of the regulatory agencies as it relates to the Health Care Industry and the impact of ESI (electronically stored information) discovery in response to litigation. Ironically, to me it seems as though most people in the insurance industry have the same perceptions as commercial corporations with regards to being prepared for litigation in this electronic era;

"....doesn't affect me until it hits me...."

This view is even more troubling to me, as the Health Care Professionals are the only link between me and maintaining my personal privacy. I consider this far more important than a commercial corporation losing a couple million bucks for patent infringement, securities fraud or being negligent in accounting or fixing stock options.

Most of my conversations have been with primary care physicians and hospital administration professionals. The common thread is they all agree that maintaining patient records in an electronic form makes sense on many levels. Including the ability to access and update patient information with ease. Thus providing the patient with a higher level of proper care and diagnosis as the sharing of information between medical professionals is streamlined. Not to mention that with the emerge of electronic record keeping the medical billing process is also streamlined to generate more accurate billing and less likely to miss revenue from the three Tylenol that someone forgot to record in the chart.

The common theme in each conversation was the upstart costs to implement such a system to maintain the electronic data in a secure environment as indicated by the regulatory agencies. Therefore most physicians in private practice have been slow to implement an electronic record management system to date. They still rely on traditional...excuse me...pre-historic carbon copy records and steel file cabinets to maintain patient records. There are even those who still utilized thermal fax machines. The difference is that most hospitals are making the investment to "connect" their systems and policies in accordance to the rules of the regulatory agencies and law.

Perhaps the root of the problem is that most companies in the insurance industry realize that the fines imposed for their negligence by the regulatory commissions and statues, once identified, are not as significant in comparison to damages imposed following a civil law suit. And for now they are willing to take that risk of not being "totally" compliant.

I will continue to follow the industry trends and provide additional solutions that are simple and cost effective means to becoming compliant.

The article below I find to be very striking and hopefully will resound loud into the decision makers ears of the insurance industry:

Compliance Technology Investment: Risk and Benefit, by Larry Danielson, Principal, Deloitte Consulting LLP

The insurance industry is one of the most regulated industries, with states controlling company licensing, producer licensing, and product, financial and market regulations, with an end goal to protect consumers.

Insurance carriers have to comply with regulations such as the Gramm-Leach-Bliley Act (GLBA), Sarbanes Oxley (SOX), the Health Insurance Portability and Accountability Act (HIPAA), Federal Rules of Civil Procedure (FRCP), and various statutory reporting requirements. The regulatory environment is also constantly changing and expected to become more complex in light of the current credit crisis and turmoil in the financial services industry. Recently, Treasury Secretary Paulson proposed more federal control of regulations for the insurance industry, at the expense of state oversight.

Return on Investment for Regulatory Technology Projects
The response of insurance organizations to these regulations is mostly reactive. Too often, the decision to invest in regulatory technology is made through a return on investment calculation that pits the cost of fines against the cost of technology. However, organizations are not thinking about the impact on brand value and reputational risk from non-compliance to regulations. The cost of reputational damage is immense, and in addition to the fines, also includes soft costs such as decline in share price and associated erosion of market capitalization, lost business, management diversion, etc. The cost of reputational damage often can run into tens to hundreds of millions of dollars and, in extreme cases, can cause regulators to revoke the insurance carrier's license to operate. Accordingly, compliance systems must be recognized as a "must have," and investments in them should be made with respect to the magnitude of exposure insurers face, with special attention to reputational risks.

Planned Approach to Understanding Data and Requirements
In this context, insurance organizations' investment in regulatory technology is a matter of strategic planning. If planned appropriately, regulatory necessities can serve as a catalyst to a better understanding of the organization's data and associated processes for all purposes. Structured efforts, systematically analyzing and classifying data up-front can lead to a significant cost reduction from data rationalization, reduction in data redundancy, and reduced business and IT effort needed to reconcile data. In addition, appropriate data classification can also yield broad business and operational benefits through better knowledge of an organization's information assets. A world-class regulatory technology platform would combine this knowledge to specific statutory requirements that are different for life, health & annuities and property & casualty carriers.

Synergies with other Initiatives
A planned response to regulatory technology also includes exploring synergies with an insurer's other proposed and in-flight initiatives. For example, regulatory reporting can leverage existing or planned enterprise data warehouses. Similarly, when complying with record retention requirements, organizations should leverage any broader enterprise content management (ECM) initiatives. Regulatory technology can be beneficial to other initiatives as well. For example, data analysis and data classification can support information lifecycle management (ILM), business continuity/disaster recovery or any other initiatives that could benefit from data analysis and classification.

Sponsorship and Governance
Often it is unclear who should sponsor regulatory and compliance technology initiatives – whether the business, CIO, chief risk officer or the CEO. A well-planned regulatory technology initiative requires appropriate executive sponsorship and a governance structure that has representation from business, IT and regulatory/compliance. The cross-functional nature of the governance structure will ensure that regulatory technology initiatives are informed by the perspectives necessary to make them successful.

to see full article http://www.insurancetech.com/blog/archives/2009/01/compliance_tech.html

The Smartest Idea Ever...Is it the right one?

2008-11-12T07:24:00.002-05:00

Today I celebrate 14 years of marital bliss (see photo to the left). A commitment that is built on the happiness of a friendship; not sprouted about from a wild love affair. Two people that slowly developed into a family...ok... maybe not that slow... as we did have a kid before the ring.

Why does any of that matter?

As I continue to mature in this space I am faced continuously with those only committed to making a name for themselves with no regard to providing a service or creating a legacy for others to build upon. There is a tremendous amount of technology today that provides the means to keep costs at a minimum by having Intellectual Consultants/Partners wade through the technological windstorm and identify the right methods to accomplish the smarter collection...smart review....smarter productions.

The challenge is being able to admit when you're not moving in the right SMART direction...for the more time one tarries over CHANGE...the damage of not having an exit strategy is just not smart no matter the amount of technological or intellectual resources one might possess.

The major components to a successful marriage are simple; open COMMUNICATION...unyielding COMMITMENT to longevity...accepting the CHANGE from I to We...

Our fruitfulness and growth in Christ
Won't happen instantly,
But meditating on God's Word
Will bring maturity.

Salvation is the miracle of a moment; growth is the labor of a lifetime.

May the God of all grace, . .after you have suffered a while, perfect, establish, strengthen, and settle you. —1 Peter 5:10

GO OBAMA!

Is the time now for a realignment?

2008-10-06T06:22:00.001-04:00

It has been a while since I have been inspired to post something that I feel would benefit the readers of my opinions. Just recently I have had the joyous privilege to travel abroad for business; experienced sadness in the passing of a close "Mother" like employee; excitement at the hands of a new service solution for the Superior product line; the resignation of an employee with high potential to "grow"; hope for business expansion; and finally cancer stricting and claiming life from two family members. All occurring in the past 30 days, including my 14 year old daughter just figuring out boys are cute and my 2 year old son finding the only wall with flat paint to color with crayola.

These events coupled with the world around us and the challenges of the stock market, global economic woes, Presidential "contests" and more cause me to reflect within. With regards to being successful and feeling successful.

The majority of the world measures success by experience, money and power or their dominance over others. This is not success in my opinion, for it is the primary reason why we experience the feeling of failure and has shaped our world in such a way that every so often we must get realigned with reality.

As I didn't read the full "rescue" package signed into law the other week; nor did most of the politicians including the President. Their "advisors" did. The few snippets that I did read truly made me sad about what "we" consider as priorities.

You see I have a simple approach for how I view and measure success. The following is just a snippet of my chosen view:

Success begins with the core value of the individual and or business. Based on a few principles that are instilled in one through rearing or defined in a mission statement or email "tag" line. When we stray from the core we must be prepared with a fail safe plan or be ready for the fall out.

The second measure is the ability to spread and share knowledge with a mentoring spirit to those you encounter. The true test in this principle is not how one might immediately receive or apply the knowledge but how it is carried on through them in your absence. The root of experience.

Lastly success is measured by the ultimate "Advisor" and the basic principles that have been set forth in a path leading towards our horizontal time of rest. In which direction will your spirit travel?

In the midst of writing this expression, I have yet learned of GOD deciding to call a member of my family HOME and this realization of GOD's grace has come upon me....

GOD grants us the greatest gift of creating LIFE for us to enjoy for a number we know not in accordance to HIS will and grace. When HE calls we must respond without fear such that our obedience in FAITH shall create the path by which we prepare for HIS ultimate calling...the day in which HE calls us HOME in no specific order. It is up to us to raise our/HIS children to follow HIS example in order to insure we have our ticket stamped at the GATE. I pray for you and yours and ask you pray the same for all others. Don't wait to repent and give yourself to HIM for you will never know your number.

We are so grateful for Family above all else. I do believe that the events over the last years and months and those most recently should cause many to get realigned with core values; in order to keep the future bright for each other. Don't allow the desire for success to be our Achilles' heal.

Thank you for reading my opinions and I hope that none have been offended. If so, charge it to my "Advisor".

The "American Rule" proposition...

2008-07-26T05:47:00.007-04:00

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.

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

2008-07-19T15:59:00.006-04:00

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..."

MatterSpace(R) ELM Solution does it again!

2008-07-16T16:58:00.008-04:00

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

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

2008-07-10T15:28:00.005-04:00

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.

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.
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.
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.
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.
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.
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.
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.
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.
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.
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

Early Case Assesment

2008-07-09T11:01:00.007-04:00

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..."