Home

Are You Ready for the Next Step in Document Review Technology?

Posted on May 8, 2012 by Michelle L'Hommedieu

Adding to this week’s Da Silva’s appeal affirmation is the Circuit Court of Loudoun County, Virginia’s support of the use of predictive coding as a culling method for document review.  In Global Aerospace, Inc. v. Landow Aviation, L.P., No. CL 61040 (Vir. Cir. Ct. Apr. 23, 2012), the Court approved the Defendant’s use of predictive coding to cull the asserted 250 gigabytes of reviewable data (about 2 million documents) for review and production.  The court approved predictive coding over the objection of opposing counsel, a distinction between Landow and Judge Peck’s decision in Da Silva Moore v. Publicis Groupe, 2012 U.S. Dist. LEXIS 23350 (S.D.N.Y. 2012).

Faced with the daunting task of a multi-million document discovery review and production, linear-manual review may be prohibitively expensive and time consuming.  The bench and bar have grown accustomed to other technologies that cull documents prior to review including de-duping, de-nisting, filtering and keyword searching.

CONTINUE READING . . .

    Tagged , , ,
    Posted in Document Review \ 2 Comments

    Allergies, E-Discovery and Karma: Yes, The Rules Apply to Law Firms, Too

    Posted on April 23, 2012 by Dennis Kiker

    For many years, I was pretty unsympathetic to allergy sufferers. After all, it was only allergies for heaven’s sake.  How bad could it be? Well, after 12 years of allergy-free living in Virginia, I learned how bad it could be. Virtually overnight, I lost my voice, couldn’t sleep, and found myself walking around in a daze struggling to breathe. That was last spring. This year, with allergen counts hundreds of times their normal levels, well, let’s just say that Karma paid me another unfriendly visit.

    So, when I read Pouncil v. Branch Law Firm, Case No. 10-1314-JTM-DJW (D. Kan. Mar. 7, 2012), I tried to be sympathetic. After all, this is a client suing its law firm. That’s got to be an uncomfortable situation. But I am afraid that I am in danger of another visit from Karma. Here’s what happened: The plaintiff was the estate of a man who died while taking Vioxx, but its claim was denied in the mass settlement because it did not meet eligibility requirements. The estate apparently decided the law firm was at fault and sued for malpractice, negligence and breach of fiduciary duty. During discovery, the estate sought copies of correspondence relating to the underlying case. When the law firm’s production appeared deficient, the estate moved to compel, and the law firm found itself before e-discovery luminary David Waxse, U.S. Magistrate Judge.  (Should have seen that one coming.)

    CONTINUE READING . . .

      Tagged , , ,
      Posted in General \ 2 Comments

      R.I.P. Levon Helm

      Posted on April 20, 2012 by Jeff Brown

      If you are visiting our blog today to read the latest news or nugget about e-discovery, you may leave disappointed because this post has pretty much nothing to do with our usual topics. You see, music legend Levon Helm died yesterday at the age of 71 after a lengthy battle with cancer and, I confess, I am thinking more  about him and his music today than e-discovery, partly because I have the luxury of having the day off but mostly because Helm is my favorite singer, and voice, of all time.

      If you want to log off and come back next week for Dennis Kiker’s forthcoming blog on allergies and e-mail (yes, he really found a connection), I understand and won’t be offended. But, if you are a fan of Helm, The Band, Bob Dylan, the sixties or rock and roll, or just want to take a chance, please read on and feel free to send me any comments you may have.

      As I said, Levon Helm died yesterday. Helm was best known as a vocalist and drummer for The Band, a rock group with origins in the sixties and the Woodstock scene that emerged from the shadow of Bob Dylan (literally, they were Dylan’s back up band from 1965 to 1966) to become one of the most influential rock groups of the era, if not all time.

      CONTINUE READING . . .

        Tagged
        Posted in General \ Leave a comment

        E-Discovery on ESPN

        Posted on April 18, 2012 by Jeff Brown

        Duh-Nuh-Na, Duh-Nuh-Na.

        If, like me, your morning starts with an hour-dose of ESPN’s SportsCenter and a quick browse through the local sports page (and an eight-ounce Red Bull and two yogurt peanut Balance Bars, for full disclosure), you know that Bobby Petrino, the University of Arkansas’ successful head football coach (21-5 and a 2012 Cotton Bowl victory in the last two years), was fired on Tuesday by the school’s athletic director for knowingly misleading the university and engaging in reckless behavior by allegedly having an inappropriate relationship with a female employee associated with the football program. Petrino is 51 and the female employee, Jessica Dorrell, is 25.

        The problem started when Petrino crashed his motorcycle earlier this month, breaking four ribs and cracking a vertebra. Initially, Petrino reported to police and school officials that he was alone when he crashed, but it was later revealed that Dorrell was riding with him on the bike. Reports quickly surfaced theorizing the married, father-of-four Petrino was engaged in an inappropriate, if not sexual, relationship with Dorrell.

        So what does another sports figure or college coach behaving badly have to do with electronic discovery?

        CONTINUE READING . . .

          Tagged , , ,
          Posted in General \ Leave a comment

          Don’t Hold Your Breath: New Federal E-Discovery Rule Amendments Likely Years Away – Again

          Posted on April 17, 2012 by Dennis Kiker

          The Federal Advisory Committee on Rules of Civil Procedure met on March 22 and 23, 2012 to discuss potential amendments to the electronic discovery rules, continuing a process that began in May, 2010. At the meeting, the Advisory Committee provided input to the Discovery Subcommittee on a number of e-discovery issues, including whether and in what manner to revise the rules to address preservation of evidence and the scope of discovery. The Discovery Subcommittee had decided to focus its efforts on revising the spoliation sanctions provisions of Rule 37 rather than on a more extensive preservation rule. However, a number of significant issues remain with strong opinions being offered from a number of sources, including the Department of Justice and both the plaintiffs’ and defense bars. An optimistic projection of the current process suggests that no changes will likely go into effect before December, 2015. But, considering that the 2006 amendments took nearly seven years to enact, you may not want to hold your breath.

            Tagged , ,
            Posted in General \ Leave a comment

            The Importance of People and Process in Electronic Discovery

            Posted on March 8, 2012 by Daryl Shetterly

            Whenever I hear people lamenting the many ways eDiscovery has ruined their day or their week, I try to dig a bit deeper and get to the root of the problem. Is the problem really an eDiscovery problem or is it a failure by the organization or law firm to properly plan and prepare for the inevitability of complying with eDiscovery obligations?

            More often than not the “eDiscovery problem” is really a communication problem, a planning problem or a failure to get the right people involved until it is too late to complete the task without Herculean effort that is disruptive to the organization. Everyone has their war stories, here are a few of the situations I hear of most often:

            • waiting too long to begin identifying sources of relevant data – resulting in a late start that makes each phase of the project a mad dash to production;
            • not properly preparing for the meet & confer process – resulting in a lost opportunity to fully utilize the cooperative potential of the process;
            • collecting documents too quickly – resulting in multiple collection requests to IT or the expense of using outside resources to re-collect once the scope of collection changes;
            • gross underestimation of the time and money required to complete the project – resulting in budget overruns and missed production deadlines;
            • using the wrong document review technology – resulting in inefficient and costly document review based on an inability to leverage technology properly; and
            • beginning document review too early – resulting in a costly re-review when the issues are clarified.

            I could go on and on.  The demands of complying with eDiscovery obligations have been around for a few years and they are not going away anytime soon. Therefore it makes sense for corporations and law firms to accept the fact that many cases will have some amount of eDiscovery work to be done.

            CONTINUE READING . . .

              Tagged , , , ,
              Posted in Document Review \ 3 Comments

              E-Discovery Lawyers – Part II

              Posted on February 23, 2012 by Dennis Kiker

              Any lawyer that has been in practice for a few years will have become familiar with having to say, “I’m not that kind of lawyer.”  Happens to me all the time.  I got a call the other day from a veteran seeking help recovering benefits that he says were wrongfully denied.  “I’m not that kind of lawyer,” I heard myself say.  “Know anything about taxes?”  “Should I set up an irrevocable trust for my grandson?”  “My daughter just got her third DUI…”  “I’m not that kind of lawyer.”

              It occurred to me after re-reading last week’s post (yes, I re-read my own blog posts, doesn’t everyone?), that I might have made a definitional error when I said “I want an e-discovery lawyer for my e-discovery project”. There are a lot of folks that consider themselves e-discovery lawyers who, when presented with the multi-million page document review project, will say, “I’m not that kind of lawyer.” Consider me, for example. Sure, I’ve helped out with the occasional project recently, mostly in an advisory capacity, but it has been close to a decade since I had to be the guy directly managing the project, the review team, and the vendor. So, I really am not that kind of lawyer, but I am still an e-discovery lawyer. “How can that be,” you ask with shock and surprise? The answer is simple: e-discovery is not simple, and it is not simply document review. Document review is incredibly important and increasingly complex, but it is the tail end of a process that begins with people like me creating ESI and saving it somewhere on a computer system. It’s towards that end of the process that e-discovery lawyers like me spend most of our time, figuring out how to more effectively and efficiently organize, identify, preserve and collect information.

              CONTINUE READING . . .

                Tagged , , , , , ,
                Posted in Document Review \ 3 Comments

                Trying to Teach a Rhino to Dance

                Posted on February 17, 2012 by Daryl Shetterly

                I laughed out loud this morning while reading “You Can’t Make Lawyers into Techies: 3 Lessons About LPM” from Pam Woldow, General Counsel at Edge International. She quotes the adage, “never try to teach a rhino to dance. The results are generally unsatisfactory and it annoys the rhino.”

                The legal profession in general has been frustratingly slow to embrace both technology and project management in managing litigation. We don’t have that luxury in the eDiscovery world. As a lawyer whose practice is focused on managing complex electronic discovery projects, I have spent lots of time developing project plans that integrate technology and process to reduce cost and increase the quality of eDiscovery work (identification, preservation, collection, early case assessment, data processing, data filtering, document review and production).

                Naturally, I also spend lots of time advocating for increased technology utilization and project management discipline. Here are a few of the dance lessons I have been teaching for several years with varying levels of success:

                CONTINUE READING . . .

                  Tagged , , , , ,
                  Posted in Document Review \ 4 Comments

                  I Want an E-Discovery Lawyer for My E-Discovery Project

                  Posted on February 13, 2012 by Dennis Kiker

                  It occurred to me recently what unusual specimens some of my partners are.  Oh, they look ordinary enough – some tall, some not, some female, some not.  What is unusual is that they are an entirely new breed of attorney.  Unlike most of us that have made our living through litigation, some of these lawyers have never drafted an interrogatory response, never argued in response to a motion to compel, never taken a deposition, in short, never done any of the things that we ordinarily associate with litigation.  What kind of lawyers are these, you ask?  They are e-discovery lawyers, born and bred, and I am not certain that we all understand just how remarkable that is.

                  Their entire careers have been spent working in the area of e-discovery.  Some of them started, as so many talented young lawyers must these days, reviewing documents as contract attorneys.  From the dozens of their peers, they distinguished themselves by their intelligence, their understanding of technology, and their innate ability to grasp the importance of process in document review.  As a result, each was given increasingly more difficult types of work and, ultimately, hired as an associate.  Just as the field of e-discovery continued to evolve and mature, so, too, did these e-discovery lawyers.  In addition to keeping abreast of the emerging case law, they studied such unlawyerly things as project management and made an effort to understand the developing technologies that have become so important to our industry.  When their peers among the associate ranks were learning to draft motions to dismiss, these lawyers were managing teams of attorneys, paralegals and technologists, often dozens of personnel, in large projects involving millions of pages of documents and hundreds of millions of legal decisions about relevancy, privilege and confidentiality.  It is quite fair to say that, long before becoming a partner, each of these attorneys managed more people than most lawyers will manage in their entire careers. 

                  CONTINUE READING . . .

                    Tagged , , , , , , ,
                    Posted in General \ 10 Comments

                    Missing LegalTech

                    Posted on February 7, 2012 by Dennis Kiker

                    I missed Legal Tech this year.  For each of the past four years, I have made the trek to the zoo at the New York Hilton to see what was new in e-discovery, network, and, hopefully, meet someone that would like to hire me.  (That’s really why we all go, isn’t it?)  But, this year, I had to work.  And, you know what?  I really didn’t miss it all that much.  The crowds, the vendors on the floor vying for your attention, the dozens of iPad give-a-ways…well, okay, I did miss it some, but not as much as I thought I would.  You know what I really missed?  People.  Legal Tech has become an opportunity to see some folks in our industry that I’ve really come to care about, and I missed seeing them this year.

                    So, what’s the e-discovery connection?  People.  As I was mulling over what I missed about Legal Tech, it occurred to me how amazing it is that I’ve met so many incredibly talented and interesting people all as a result of the sudden emergence of the e-discovery industry – IT professionals and paralegals, records and information management experts, training professionals, lawyers with an unusual interest in all things technological, and the list goes on.  And that, friends, may well be the best thing that has happened since the revision of the Federal Rules of Civil Procedure in 2006.

                    CONTINUE READING . . .

                      Tagged , , , , , ,
                      Posted in General \ 1 Comment