A bit of fun for a Friday afternoon. To hear the Star Wars clip that inspired this cartoon, click here.
Last February, Assured Guaranty Municipal Corp. sued UBS Real Estate Securities Inc. for breach of contract, accusing the company of failing to meet obligations related to the pooling of residential mortgage-backed securities. As the case moved along, disputes arose over discovery and both sides filed motions to compel.
One of the discovery issues in dispute was the adequacy of the search terms that Assured proposed to apply to electronic documents. Ruling on this issue in a Nov. 21, 2012, memorandum, U.S. Magistrate Judge James C. Francis IV began by quoting the oft-cited words of another U.S. magistrate judge, John M. Facciola, in U.S. v. O’Keefe:
Whether search terms or ‘keywords’ will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. … Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.
Because neither party provided the expert affidavits that would have enabled him to decide on the most efficient search protocol, Judge Francis laid out three options for counsel:
- They can cooperate (along with their technical consultants) and attempt to agree on an appropriate set of search criteria.
- They can refile a motion to compel, supported by expert testimony.
- Or, they can request the appointment of a neutral consultant who will design a search strategy.
Note that in each of the three options, Judge Francis requires that an expert be involved in any determination, even when both counsel come to an agreement out of court.
So, if counsel are required to consult an expert and if search creation and testing is truly an area where “angels fear to tread,” how do you make sure to select the right search expert for your case? Below are some tips you may find helpful in finding the right consultant.
E-Discovery Expert ≠ Search Expert
Electronic discovery is an extremely broad field of knowledge covering the entire gambit of the EDRM [link: http://www.edrm.net/resources/edrm-stages-explained]. While there may be a few e-discovery experts out there qualified to serve as search experts, Judge Franklin makes clear that the expert should have a solid understanding of the interplay between “the sciences of computer technology, statistics and linguistics.” In the world of academia, this field of study is referred to as “Information Retrieval” (IR). [link: http://en.wikipedia.org/wiki/Information_retrieval] Those specializing in IR seek to use searches to identify the relevant information from a larger sea of data. When selecting your expert, be sure she has expert knowledge in at least one of the areas of expertise listed by Franklin and foundational knowledge of the others. She should be able to understand how each science plays into the ultimate goal of creating defensible searches.
One Size Does Not Fit All
Like electronic discovery, IR is an extremely broad area of study. In 1992, the Text Retrieval Conference (TREC) [link: http://trec.nist.gov/ ] was created to support the IR community by providing the infrastructure to test and evaluate different text retrieval methodologies. Since its inception, there have been 21 different research areas, or tracks. These tracks range from web search to spam filtering to gene sequencing. While the Legal Track has been a mainstay for TREC since 2006, it is far from the only IR area of study.
Much of IR focuses on returning the best results from an extremely large dataset. A good example of this would be web search. In web search, the user enters a query and the IR system compiles a list of matching results in a ranked order by likelihood or responsiveness. Users typically find what they are looking for within the first few pages of results and have no need to proceed further.
In contrast, an ideal e-discovery search methodology would need to make an accurate relevance assessment on each and every document in the collection. Instead of finding just the best documents, we need to identify those with even the slightest traces of relevant content. This task poses a unique and what I believe to be a significantly harder task than the majority of IR research.
When selecting a search expert, be sure to find one who is familiar with the intricacies of legal search. While the ideal candidate does not need to have a JD, the expert should be familiar with what is required under the Federal Rules of Evidence and be able to conform her processes to that standard.
Those Who Can, Do; Those Who Can’t, Teach; Those Wanting to Be My Expert, Do and Teach!
It’s obvious that you want to find an expert who has done similar work before and has the references to confirm it. Supporting documentation can be in the form of scholarly articles, prepared client reports, and documents submitted to the court. You want to read through these documents to make sure the information is presented clearly, that a structured workflow was followed, and the results are supported by iterative testing. You also want to make sure that throughout the expert’s career, she has been consistent in her work. Prior publications represent a minefield for prior inconsistent opinions and will likely be used by opposing counsel to discredit your expert
You also want to find an expert who can clearly explain the craft. Most experts are used to operating in a highly specialized academic community with shared foundational knowledge and common vocabulary. A good expert needs to be a teacher at heart. She should enjoy educating others by explaining complex principles in simplified terms.
Have the expert walk you through one of her reports. Make sure she can detail in basic vocabulary each step that was taken, why choices were made, and how the outcome was determined. For any part of the process that requires foundational knowledge, such as statistical sampling, she should be able to break down the process enough that the user can follow along and then return to the bigger picture. Be sure to ask questions, keeping a close eye to make sure she does not appear frustrated or inconvenienced.
Our Catalyst Consulting team of linguists, statisticians, attorneys, and technical experts has been helping clients construct repeatable and defensible search methodologies since 2008. For assistance with your case, or to find out more on selecting the perfect expert, be sure to contact them at firstname.lastname@example.org.
You’ve liked it on Facebook! You’ve heard about it on Twitter! You’ve read about it in the Pinhawk Law Technology Daily Digest! Now see for yourself the video that everyone is talking about. Be sure to watch to the end for a special announcement.
Script: Ron Tienzo, Catalyst Sales Engineer and Senior Consultant
Production Assistance: JibJab.
The future of legal technology is looking cloudy — and that’s not a bad thing. Cloud computing is on track to overtake on-premise computing within the legal services industry in the very near future, according to a recently published survey of legal IT professionals. Fifty-seven percent of those surveyed predicted that this will happen within five years and 81 percent said it will be within 10 years. Only 16 percent said it would never happen.
The survey was conducted in September by the publication Legal IT Professionals and its results were published Nov. 26. The online survey of the publication’s global readership elicited 438 responses, representing law firms ranging in size from small boutiques to global megafirms. More than three-quarters of respondents work directly in legal IT, either within a firm (54 percent) or as external consultants (24 percent). Lawyers and paralegals made up 22 percent of respondents.
The inevitability of the cloud overtaking on-premise computing is driven in part by the increasing prevalence of mobile devices within the legal industry, the survey found.
As connectivity – particularly mobile connectivity – becomes ubiquitous, and lawyers, like everyone else, become culturally accustomed to accessing everything online, cloud computing is likely to become the de facto delivery model for information and applications.
But the cloud also offers inherent advantages that are driving its ever-increasing popularity. “Cloud computing transcends geographical boundaries and storage limitations,” the survey noted. “It supports business continuity and disaster recovery.”
In fact, the survey’s respondents cited business continuity as among the top benefits of cloud computing. Asked what they considered to be the main benefits of the cloud, their top answers were:
- Flexibility/Agility, 55%.
- More mobility, 54%.
- Business continuity, 52%.
- Scalability, 47%.
- Cost savings, 40%.
- Ease of implementation, 21%.
- Focus on core business, 18%.
- Going green, 13%.
Although the survey identified a clear trend towards cloud computing, it also established that both legal professionals and clients maintain reservations. For example, respondents were asked, “If your law firm’s management asked for your advice regarding moving key applications to the cloud, would you be in favor of this strategy?” Responses were an even split, with 45 percent in favor and 46 percent against moving key applications to the cloud. Smaller firms were more likely than larger firms to embrace a cloud strategy. “Law firms are notoriously risk averse and tend to be what one lawyer described as ‘proud second movers’ when it comes to technology,” the survey suggested.
In a similar vein, 60 percent of respondents believed that their clients might be concerned if key applications and services were hosted in the cloud. “The biggest concerns about this are among CIO/CTOs (67%) and general IT staff (68%), who are perhaps the most risk aware groups surveyed and have to deal directly with any security breach or outage,” the survey explained.
Shift in Attitude
Still, there is a general shift in attitude in favor of cloud computing, the survey found. More than half of respondents said they are more positive about it now than a year ago. Only 10 percent of respondents said that their opinion about cloud computing had become more negative.
As for the future, respondents overwhelmingly cited security and client confidentiality as the biggest challenges that they would have to address before moving IT resources to the cloud. Across all roles, firm sizes and locations, between 73 percent and 90 percent of respondents said that security was their top concern.
In the final analysis, the authors of the survey report conclude that the tide has turned for cloud computing and that the cloud is here to stay.
The tide has turned, particularly in the mid-markets which are facing competition from market entrants, large firms that are driven by market forces to price their services more competitively and specialist boutiques that are utilising cloud computing to access resources and offer services that drive competitive advantage. The smaller, more agile firms are leading the way in outsourcing their entire IT infrastructure to an external cloud provider.
You can download the complete Global Cloud Survey Report from the Legal IT Professionals home page or directly from this link. The full report contains additional questions and details about responses, along with selected quotes from respondents. The report includes an introduction written by Nicole Black, author of the ABA book, Cloud Computing for Lawyers, in which she offers her perspective on the results.
It’s been a big week at Catalyst: We launched not one, but two all-new websites.
The main Catalyst website at www.catalystsecure.com has been totally revamped. The design is cleaner, the navigation is simplified and the content is streamlined and updated. Among the many changes, the site is now more tightly integrated with social media. Hover over the Facebook, LinkedIn and Twitter buttons on the right of the screen and you get a pop-out showing the latest updates from Catalyst.
Also this week, Catalyst launched its brand-new Catalyst Japan site. This site is completely new and is published entirely in Japanese. The site complements Catalyst’s increasing growth and investment in Japan and throughout Asia. After operating in Japan for many years, Catalyst opened its first fully staffed office there in 2010. In January 2011, Catalyst opened a full-featured, high-security data center in Tokyo.
We welcome you to check out either or both of the new websites and let us know what you think.
When I read Ralph Losey’s recent article in Law Technology News, “Five Reasons to Outsource Litigation Support,” it brought to mind that old Greyhound bus slogan, “Go Greyhound—and leave the driving to us.” Don’t waste your time driving when that is Greyhound’s core competency, the slogan suggested. The same holds true for many aspects of e-discovery, as Losey’s article describes.
E-discovery is a complex process that requires both legal services and non-legal services. A law firm’s core competency is to provide legal services. E-discovery vendors have core competencies in providing those non-legal services. Law firms should focus on practicing law and leave the driving to outside vendors.
Losey argues forcefully for why firms and legal departments should focus on their core competency:
Your organization is a law firm, or law department of a corporation. Your lawyers are trained and engaged in the practice of law — that is your mission. Why should you own and operate a nonlegal e-discovery business within your walls under the guise of a litigation support department?
His point becomes even more forceful when he explains that his firm decided to outsource only after spending nine months preparing to do the opposite. Losey joined his firm, Jackson Lewis, in May 2012, as national e-discovery counsel. He helped it build a major e-discovery program that included a trained e-discovery liaison attorney in each of the national firm’s 49 offices, mandatory e-discovery training for all associates, and recommended training for all partners.
Despite this extensive infrastructure, and after nine months of research, Losey’s firm decided to outsource to a vendor all the non-legal e-discovery work that, until then, its litigation support department had been providing to the firm’s clients.
Core competency was a key factor in the firm’s decision to outsource, Losey writes. The decision allowed the firm to focus on the practice of law and outside vendors to handle computer-related technical services. In addition to core competency, Losey outlines four other reasons why legal organizations should consider outsourcing:
- Complexity. “Nonlegal e-discovery services are difficult to perform correctly,” he asserts. This is highly technical work that can easily be botched.
- Cost savings. It is expensive for a legal organization to set up and operate a litigation support department, Losey notes. “If you continue to keep your e-discovery work in-house, you have no choice but to keep writing big checks for the latest technology and staff,” he writes.
- Risk. The complexity of the non-legal aspects of e-discovery means that the risk of errors is high, along with the risk of exposure for those errors. If a client’s data is accidentally exposed, who is liable?
- Ethics. A law firm’s provision of non-legal e-discovery services raises a host of ethical issues, Losey contends. Better to bypass them through outsourcing.
The bottom line, Losey indicates, is a much cleaner break between legal and non-legal e-discovery services. While outsourcing is not without issues of its own, Losey concludes that, “these issues are easier to deal with than the issues raised by running a side-business, even if it is often a de facto not-for-profit.”
Additional Advantages of the Cloud
Many of the points Losey makes in his article strike chords here at Catalyst. Catalyst is a company that has remained focused on its core competencies in document hosting, search and review for more than a dozen years. It is a company composed of veteran e-discovery professionals who fully understand the complexity and risks inherent in their work.
However, one point particularly worth emphasizing is that of cost savings—and more specifically the cost savings that come from hosting data in the cloud. Losey does not specifically mention the cloud, but he does note this:
Litigation support departments, like any business, are expensive to set up and operate, and an e-discovery business requires a large initial investment. Not only must expensive hardware be purchased and continually replaced, but the software is in a state of near-constant change and ultimately usually proves to be more expensive than the hardware. Specialized employees are costly as well, and need expensive training to use these tools.
That paragraph precisely sets out the business case for a cloud e-discovery vendor. With a cloud-based e-discovery vendor, law firms and legal departments avoid the expenses of setting up and operating a department, they avoid expensive hardware purchases and replacement, and they avoid near-constant software upgrades. They even avoid many of the specialized employees. All of this “driving” is left to the cloud vendor. The lawyers just focus on the legal work.
Recently, we engaged in an in-depth analysis comparing the total cost of ownership of a cloud-based e-discovery platform against locally hosted or appliance-based platforms. Soon, we will publish the detailed results of our analysis.
The result of our analysis was startling in its conclusion. While we already knew that cloud platforms saved money in several aspects of e-discovery, this was the first time we know of that anyone pulled together all the costs, direct and indirect, and compared them head-to-head.
What we found, using our most conservative figures, was that the cloud produced cost savings of 36 percent over appliance-based platforms. That is significant for any sized case and particularly so for large legal matters involving high volumes of electronic documents.
So when Ralph Losey makes the case for why legal organizations should outsource the non-legal aspects of e-discovery, we could not agree more. By outsourcing to a reputable vendor, legal organizations save money, avoid risk and get to focus on what they do best. They can practice law, while they leave the driving to us.
Catalyst founder and CEO John Tredennick will be a featured speaker at MarkLogic’s 2012 summit, “The Power of Big Data,” in New York City Nov. 29. John’s session, “Reducing Risk—Why Big Data Applies to E-Discovery, Investigations and Compliance Requests,” will discuss how corporations can use technology-assisted review to streamline e-discovery in cases involving vast amounts of unstructured data. Frank Rubino, MarkLogic’s director of customer solutions, will also present at the session.
The day-long MarkLogic summit is designed to shine the spotlight on Big Data and how it impacts large organizations. The program features risk experts, thought leaders, organizational transformers and business innovators who will discuss their experiences in addressing the challenges of big data. It covers a variety of industries, including media, financial services, telecommunications and healthcare, and organizations, such as The McGraw-Hill Companies, JPMorgan Chase & Company, Citi, Infrastructure Corporation of America and the BBC.
John’s session is Nov. 29, 2:20 to 3 p.m. Eastern time, at Sentry Centers Midtown East, 730 Third Avenue, New York. For more information about the MarkLogic Big Data Summit Series or to register to attend, click here.
What keeps corporate counsel up at night? I doubt it would surprise you to hear that e-discovery is top among the topics fueling the nightmares of in-house lawyers. What might surprise you, however, is that a key concern corporate counsel have about e-discovery is that their outside law firms are not competent to handle it.
This is among the findings of Litigation Outlook 2013, a survey just released by The BTI Consulting Group in Wellesley, Mass. The survey is based on some 350 telephone interviews with general counsel, heads of litigation and other legal-department decision makers at companies with average revenues of $15.7 billion and median revenues of $4 billion.
As reported this week by Tex Parte Blog, the Wall Street Journal Law Blog, and Above the Law, the headline-grabbing finding of the survey was its naming of the “Fearsome Foursome,” the four law firms corporate counsel most fear going up against.
Asked in the survey which firm “would you really rather not see as lead opposing counsel in a litigation case,” the four corporate counsel most frequently named were Boies, Schiller & Flexner; Jones Day; Kirkland & Ellis; and Skadden, Arps, Slate, Meagher & Flom.
But when asked about their biggest worries, e-discovery was near the top of the list, with corporate counsel complaining that e-discovery is draining their “already stretched resources.” In addition to concerns about the “cost and time drain” of e-discovery and worry about compliance and risk exposure, a large number of corporate counsel expressed a surprising lack of confidence in their outside lawyers’ competence in e-discovery.
As reported by the WSJ Law Blog, “84% of litigation counsel rated their outside lawyers a 7 or lawyer on a scale of 1 to 10 in how well they handle and manage e-discovery.”
Consider these quotes from the survey, again as reported by the Law Blog:
“First of all I don’t think law firms themselves are even qualified and they should be working with 3rd party vendors,” said one respondent, described as “Deputy General Counsel, Multinational Energy Titan.”
“Most law firms are extremely inept,” according to “Senior Counsel, Fortune 500 Media Mogul.”
I have not read the full survey, which costs $2,400 to purchase. BTI offers an executive summary, but it provides no details on the e-discovery findings.
So what are we to make of this? First off, it needs to be said that not all law firms should be painted with the broad brush of ineptitude. There is no arguing that, among lawyers and law firms broadly, a large number of them are unskilled in e-discovery. For that matter, a large number of them remain unskilled in technology, period. But there are also firms that are highly competent in e-discovery. If many firms are unqualified or even inept, some are superbly qualified and highly skilled.
Still, we are reminded time and again of Magistrate Judge John M. Facciola’s admonition from his 2008 opinion, U.S. v O’Keefe, that many aspects of e-discovery are “clearly beyond the ken of a layman” and require expertise in such areas as computer technology, statistics and linguistics. On one hand, law firms should be striving to increase their fluency in e-discovery and technology. But it is also important to know your limits, to understand what you don’t understand.
As that deputy GC quoted above said, law firms should be working with third-party vendors on many aspects of e-discovery. Lawyers should have no reluctance to bring in outside expertise. And corporate counsel should have no hesitation about urging their outside counsel to do that.
Have you noticed all the friendly pats on the back you’ve been getting lately from legal bloggers? It is that time of year when the editors of the ABA Journal ask members of the legal community to nominate their favorite law blogs for recognition in the annual ABA Blawg 100. These “friend-of-the-blawg briefs” are due in two days, on Sept. 7. Bloggers are discouraged from nominating their own blogs — thus the prevalence of those friendly pats from bloggers who’d like you to like them enough to put in a good word.
Launched in 2007, the ABA Blawg 100 has become a much-anticipated annual listing of the best legal blogs in a variety of categories. Over the five years that the list has been compiled, the categories have changed a bit from year to year. Last year, for example, blogs were recognized in 12 categories that included news, trial practice, law practice management, opinion, labor and employment, criminal justice, torts and legal technology.
One category of legal blog that the Blawg 100 has never recognized is e-discovery. Last year, the Blawg 100 included two very worthy e-discovery blogs, Joshua Gilliland’s Bow Tie Law and Sharon Nelson’s Ride the Lightning. But Josh’s blog was listed within the IP law category and Sharon’s in the legal technology category. E-discovery had no category to call its own.
E-discovery is not a niche. To the contrary, it may well be the single-most rapidly expanding area of law practice today. Whereas electronic data was once a curious anomaly, it now pervades every aspect of litigation and, indeed, of most law practice. E-discovery as a practice skill and as a practice area is now critical to lawyers and law firms.
Reflective of this trend are the growing number of high-quality blogs devoted to e-discovery in its various facets. Josh’s and Sharon’s are two great examples and there are many others. I hesitate to mention any, for fear of excluding so many. But if you’re unfamiliar with the landscape of e-discovery blogs, some I would recommend include Electronic Discovery Law by K&L Gates, EDD Update from Law.com, e-Discovery Team by Ralph Losey, Electronic Discovery and Evidence by Michael Arkfeld, and Ball in your Court by Craig Ball.
To be fair, there are also a number of excellent e-discovery blogs maintained by other vendors. Some of these are written by companies that are Catalyst partners, such as E-Discovery Beat by Exterro, and some are written by companies that are Catalyst competitors, such as e-discovery 2.0 from Clearwell. And for keeping up with e-discovery news and events broadly, you can’t do better than either eDiscovery Journal or Unfiltered Orange.
My own RSS reader includes roughly 50 e-discovery blogs I regularly track. And I keep discovering new ones to add to my list, such as the recently launched blog/podcast The Legal Geeks, which pairs the aforementioned Josh Gilliland and Jessica Mederson, who also writes her own e-discovery blog, E-Discovery Matters.
In short, e-discovery is not just a hot area of law practice — it is also a hot area of legal blogging, with a diverse and sophisticated array of blogs and authors. Given this, the time is ripe for the ABA Journal’s editors to take notice. This year, they should add a new category of legal blogs for recognition — e-discovery blogs.
If you agree, visit the Blawg 100 Amici page and let the editors know. Oh, and, while you’re there, if you are so inclined, I welcome you to nominate the Catalyst E-Discovery Search Blog. Consider this your virtual pat on the back.
The case that many believed might be the next big bang in predictive coding jurisprudence instead has ended with barely a whimper.
As I noted here last month, in the wake of Magistrate Judge Andrew J. Peck’s ruling in Da Silva Moore v. Publicis Groupe affirming the use of predictive coding, many in the e-discovery field turned their attention to Kleen Products LLC v. Packaging Corporation of America, believing that it might be the Next Big Case on predictive coding.
The plaintiffs in Kleen Products had asked U.S. Magistrate Judge Nan Nolan to require the defendants to use predictive coding and Judge Nolan had conducted two days of evidentiary hearings on the request as well as several status conferences.
Although the case continues on, predictive coding is off the table, at least for the time being. Last week, Judge Nolan approved a stipulation submitted by the parties in which plaintiffs withdrew their demand to apply predictive coding to any documents relating to any request for production filed prior to Oct. 1, 2013.
As to any requests for production filed after that date, the parties stipulated that they will meet and confer regarding the appropriate search methodology. “If the parties fail to agree on a search methodology,” the stipulation says, “either party may file a motion with the Court seeking resolution.”
That suggests that we may not have heard the last of Kleen Products in the context of computer-assisted search. But with any further possible rulings on the issue well over a year away, we can safely write it off as the next big case.