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Tom O'Connor

Will Lawyers Ever Embrace Technology?: eDiscovery Best Practices, Part Five

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31.  Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was published on November 16, part two was published last Monday, part three was published last Tuesday and part four was published yesterday.  Here’s the fifth and final part.

What can we do to Help Lawyers become Technologically Proficient?

What is the solution moving forward?? Well as I said above, “read the rule book shankapotomous.”. Get educated. Go to conferences and CLE sessions. Help promote more education.  Once again Craig Ball is more eloquent than I am when he ventures “Evidence is digital.  That’s not changing.  Embrace the inevitable.  We don’t need conferences to mourn the passing of paper.  We need Manhattan Projects to educate lawyers about ESI.”

And, so we return to a recurrent theme among ED commentators. We need not just better but far more education.  That is the best way to reduce ED costs.

But I’ll also offer my 10 Tips for Working with eDiscovery. This may be a good checklist for you in moving forward.

  1. Read the Rules: The Federal Rules of Civil Procedure lay out the framework for your obligations in handling e-discovery and differ in several aspects from traditional discovery rules. In addition, your state may have its own ED rules which differ from the FRCP.  You need to understand the procedural requirements for the various jurisdictions where you may have litigation arise so start here.
  2. Read the Decisions: Federal judges, notably Facciola, Grimm and Waxse, have spent considerable time issuing opinions which give details on interpreting and implementing the Federal rules. Reading these decisions is essential to understanding how to handle eDiscovery so start with a good book on ED basic then read a good case update blog, preferably one which has an RSS feed.
  3. Know the Terms: eDiscovery isn’t rocket science but it is technical in nature. But you learned the Rule against Perpetuities in law school so believe me you can handle this.  Judges do not want to waste time settling arguments between attorneys who don’t know the difference between a PST and an MSG file so get a good ED glossary (the Sedona Conference has one) and make sure you know all the terms.
  4. Know Where Your Data Is: You can’t find it to identify, collect and preserve if you don’t know where it is. So, get with your client’s IT folks and make a map of their network with locations, custodians, OS and applications lists and descriptions of data amounts.  Why? Because a map shows us how to go places that we haven’t been before without getting lost.  Plus, they are incredibly useful in court to show a judge the complexity of your data collection problem.
  5. Talk to The IT Department: They know how to make the map. You’re Lewis and Clark, they’re Sacajawea. You cannot…absolutely cannot…navigate without them.
  6. Talk to The Records Management People: Records Management is the flip side of the eDiscovery coin and your clients RM staff can help avoid the need to waste time and money restoring backup tapes that don’t contain relevant data. Wait, your client DOES have a Records Management Policy, right?
  7. Make a Records Management Policy: Good records management will save time and money when clients have to collect data and will help avoid sanctions when you have to explain to a judge why some documents are no longer available because they were deleted in the ordinary course of business by the records retention policy.
  8. Make A Litigation Hold Policy: Every client needs to have a clear and concise litigation hold policy to deal with procedures for data retention when the litigation hold letter arrives. And it will.
  9. Enforce the Litigation Hold Policy: Repeat after me: “repeatable, defensible process”. Don’t put the lit hold policy in a manual that just goes on the shelf. This is the biggest mistake you can make and more cases are lost here than in any other phase of electronic discovery. Your opponent marks up a motion for sanctions, you say “but Your Honor, we have a lit hold policy” and the judge says “show me how you implemented it in this case.” And you can’t.
  10. Meet with Your Client’s Inside Counsel: Why? To discuss all of the above. They will need to understand, and be able to explain, all of it in order to work with you. And you need to be sure they can do exactly that.

Finally. let me leave you with a word of caution. As much as we talk about technology and its importance, keep in mind that technical understanding is the underpinning of legal competence.  eDiscovery is still discovery.

The ultimate solution to the eDiscovery quandary is more than just knowing the rules, avoiding e-jargon and understanding the technology. The fact is that eDiscovery is a process comprised of separate distinct stages, any one of which may have specific software available for that stage. In my estimation, true technical competence means knowing the technological underpinnings of each of those steps and then understanding the best process for making them all work together.

It is the process not the technology that is the ultimate key. As my colleague John Martin has said for years, “it’s the archer not the arrow”.

So, what do you think?  Do you think that lawyers are where they need to be in becoming technologically proficient?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Will Lawyers Ever Embrace Technology?: eDiscovery Best Practices, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31.  Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was published on November 16, part two was published last Monday and part three was published last Tuesday.  Here’s the fourth part.

What are Some Good Resources to Help Lawyers Improve their Technology Expertise?

Craig Ball once made a great point in responding to a post of mine about educating lawyers when he said “We not only need to persuade lawyers to take the plunge, we need to insure there’s a pool for them to jump into. By that I mean, there just isn’t a clear path to accessible resources for the lawyer who wants to get a handle on the technology. Do they go to a community night course on computers? Pursue online education? Wait for the next Georgetown Academy?  I don’t think I’ve even seen a really good reading list on the topic (and much as I’d like for it to be, consuming the offerings on my web site isn’t enough).

Browning Marean of DLA Piper replied that since there is no general technology educational resource for attorneys and it is unlikely that there ever will be, first because the field is constantly changing and no clear standards have yet to emerge and second because of the reluctance of traditional legal educational institutions to undertake any form of “vocational” training as we discussed above, he felt the only clear option is a constant monitoring of ED websites. Among his favorites were the K&L Gates case law site, Ralph Losey’s e-Discovery Team® site and the EDRM web site.  To that list I’d add eDiscovery Daily, the Association of Certified eDiscovery Specialists (ACEDS) blog and of course Craig Ball’s Ball in your court blog.

Beyond that, I’d also suggest the following books which are worth consulting as well:

A Process of Illumination: The Practical Guide To Electronic Discovery, Mary Mack (available on Amazon here)

The Discovery Revolution, George L. Paul and Bruce H. Nearon, ABA publication (available on Amazon here)

e-Discovery for Everyone, Ralph Losey (available on Amazon here)

Electronic Discovery and Evidence, Fourth Edition, Michael Arkfeld (available for purchase at Law Partner Publishing/LexisNexis here)

Managing E-Discovery and ESI: From Pre-Litigation to Trial 1st Edition, Michael D. Berman, Courtney Ingraffia Barton, Paul W. Grimm, ABA Press (available on Amazon here)

Project Management in Electronic Discovery: An Introduction to Core Principles of Legal Project Management and Leadership In eDiscovery, Michael Quartararo (available on Amazon here)

Electronic Discovery and Digital Evidence in a Nutshell, Shira Scheindlin & The Sedona Conference® (available on Amazon here)

Electronic Discovery for Small Cases: Managing Digital Evidence and ESI, Bruce Olson & Tom O’Connor, ABA publication (available on Amazon here)

We’ll publish the final part, Part 5 – What can we do to Help Lawyers become Technologically Proficient? – tomorrow.

So, what do you think?  Do you think that lawyers are where they need to be in becoming technologically proficient?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Will Lawyers Ever Embrace Technology?: eDiscovery Best Practices, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31.  Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was published last Friday and part two was published yesterday.  Here’s the third part.

How Can We Change the Situation?

To begin to answer that question, let’s take a look at the ethical obligation that lawyers have to be technically competent and the state of technology education for lawyers today.

a. Technical Competence

First let’s acknowledge that we have an ethical obligation to be technically competent. Perhaps we always did. As one of my good friends in the Louisiana Bar Association pointed out to me when I asked why the LSBA hadn’t produced a specific rule for such a duty, “well we always just assumed it was just part of the general duty of competence. We didn’t issue that sort of rule when the telephone came out, or the fax machine, or the telegraph or the car. We figured the benefits of technology were both necessary AND apparent.”

And certainly at least one judge has felt this way for quite some time. In Mancia v. Mayflower Textile Services Co., Judge Paul Grimm used a detailed examination of Rule 26(g), Fed. R. Civ. P., which requires every discovery disclosure, request, response or objection be signed by an attorney of record. The signature “certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry,” the request is reasonable and the disclosure is complete and correct. In Judge Grimm’s opinion, he calls Rule 26(g) is “the least understood or followed of the discovery rules.” and he clearly states that much of the blame for high priced e-discovery costs lies here. Not following a clearly defined ethical duty. Or as I once wrote, hey shankapotamous, read the rule book.

But even so, in 2012 the ABA issued a model rule on the issue in its Model Rules of Professional Conduct and, so far, 32 states have adopted a similar rule. You can read more about that on Bob Ambrogi’s LawSites blog site here.

b. Education

But what do we do to gain technical competence. How do we become what Craig Ball has called Homo Electronicus?

Certainly, we can do so, right? We’re lawyers. We’re smart. We can do things.

Well, not if law schools have anything to say about it. Browning Marean and I spent years trying to begin a law school curriculum that included computer education with no success. Why? Because legal education still has its own old paradigm. The one that working with a keyboard is not “professional” and is best done by support staff and hourly employees. You know, secretary types.

We were actually told by the dean of one leading law school when we spoke to him about a legal technology training initiative, “We train architects, not carpenters.”

Great attitude Dean. You might want to tell those architects that they don’t have to use slide rules any longer.

And that’s the second part of the problem. Even with schools that have begrudgingly started eDiscovery courses. (And the number of those being taught by full time faculty as part of the standard curriculum can be counted on … ok, two hands) But the threshold question here is not knowledge of eDiscovery technology, it’s the lack of the most basic computer technical knowledge.

Because where many people commenting on this subject see it as a parable for why we should be using concept searching in eDiscovery matters I see it just another example of attorneys caught in the old paradigm of working with paper documents and being totally unaware of the most basic technical concepts. Law students need a good case book on eDiscovery, sure but first they need a discussion about technology in general. Some commentators say this isn’t really necessary because the new generation is computer savvy. Well maybe.  If by tech savvy you mean they can check email and do legal research. But even if they are tech savvy, they are still the new generation. What about the NOW generation?

What can we do about it?  Judge Facciola once suggested some form of national technology competency standards. Seem like fanciful speculation? Well, remember that all bankruptcy practitioners must take a 2-hour course in the ECF system before they can file documents because electronic filing of documents is required in all bankruptcy courts. Why then could courts not institute a similar requirement before they allow an attorney to file a motion involving eDiscovery?

Some Judges have indeed adopted local rules to that effect but the lack of action by law schools and bar associations is the real failing here. Heck, if an eDiscovery question started appearing on bar exams, you be darn sure law schools would start teaching it.

We’ll publish Part 4 – What are Some Good Resources to Help Lawyers Improve their Technology Expertise? – next Monday.

So, what do you think?  Do you think that lawyers are where they need to be in becoming technologically proficient?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Happy Thanksgiving from CloudNine!

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Will Lawyers Ever Embrace Technology?: eDiscovery Best Practices, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31.  Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was published yesterday.  Here’s the second part.

Why is the Lack of Technology Expertise among Lawyers Important?

To answer that question, we need to take a look at the current situation in terms of what we’re trying to accomplish with eDiscovery, whether knowledge of that is important and what do we need to do to change.

a. What Is the Goal of eDiscovery?

FRCP 1 makes the immediate goal of eDiscovery quite clear.

Rule 1. Scope and Purpose

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. (my emphasis added)

In that vein, Ron Friedmann once wrote a thought-provoking post entitled E-Discovery Goal: Win or Avoid Disaster?  in which he posed the theory that lawyers have forgotten the real goals of eDiscovery, which he said were:

A. Achieve the best outcome for the client

B. Minimize cost

C. Learn the facts of the case

D. Prepare offense or defense

E. Fulfill obligations to produce documents

b. What we do is important

But in addition to a legal and ethical obligation to perform efficiently, what we do in our work is important. I once spoke on a CLE panel with well-known ESI commentator Michael Arkfeld and he remarked that these are exciting times because for the first time we are seeing a true intersection of technology and the law.

But a speech I gave with Mary Mack, the CEO of ACEDS, was one that I remember because at the end of it, we were asked by an audience member “why should I go to law school’? My response was “Because what we do is important’!

Consider the US Judicial System for a moment. Modern human civilization has been in existence for roughly 44,000 years: Greek democracy began in 500 BC, the Magna Carta was signed in 1215 AD, the Enlightenment flourished from 1660-1780 AD with perhaps it’s crowning achievement, the American Revolution, occurring in 1776.

But our system of justice began with a document that says “we the people”.  It depends on confidence by the people that they system is working. Yet while 70% of poor households have a legal problem in any given year, only 4% consult a lawyer. 60% of middle classes with a legal problem don’t consult a lawyer because of cost.

A 2014 Gallup poll showed more people had confidence in our military than the criminal justice system.

But a more recent (2017) State of State Courts report by the National Center for State Courts found that 71% of respondents had overall confidence in their court system.

Although an equal number felt the courts were too complicated to navigate without an attorney.

Those statistics have remained fairly constant for over a decade and I would assert that what we are doing in the increasingly technical world of eDiscovery is crucial to keeping that confidence level intact.

c. Are We Stuck?

Ralph Losey once called the lack of technical understanding by attorneys as a “paper prison”. Ken Withers, Deputy Executive Director of The Sedona Conference, said something similar once as a keynote speaker Georgetown University 5th Annual Advanced E-Discovery Institute Program, when he stated too many attorneys think in the old paper based paradigm instead of progressing to become what he called the “protodigital lawyer.”

So, how do we change? How do we escape the paper prison?  We’ll publish Part 3 – How Can we Change the Situation? – tomorrow.

So, what do you think?  Do you think that lawyers are where they need to be in becoming technologically proficient?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Will Lawyers Ever Embrace Technology?: eDiscovery Best Practices

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31.  Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

Law firms today possess technology tools which have been proven to save time and money while simultaneously improving quality within the discovery process. Two thirds of the states have enacted rules which impose lawyer’s ethical duty to understand technology. And, case after case shows judicial endorsement of both of these concepts.

Why is it, then, that surveys continue to show that many lawyers have yet to embrace these new technologies and approaches? The latest survey on legal trends by Ari Kaplan reveals that many lawyers are still not sufficiently up to date with legal tech to make informed decisions about where to focus their firm’s resources and staff’s attention.  Several years ago, the results of the ILTA Law Department Survey reported a degree of technology usage that Ron Friedmann, in reporting on the survey, described as both “shocking” and “frightening”.  The survey released in Dec. of 2017 still showed problems, with 50% of the respondents using Windows 7 on their desktops and only 40% using a cloud-based email system.

Have these technological delays impacted law firms’ relationships with clients?  The 2018 Zapproved Corporate eDiscovery Benchmarking Report found that “… corporate legal departments prioritize streamlining and modernizing operations as a top priority…” .  Are outside counsel firms meeting this standard?  Not according to the EDRM/Exterro 2018 In-House Legal Benchmarking Report, which found that almost 70% of legal teams conducted most of their litigation services in-house compared to 50% last year.

Why is this? As long ago as 2009, Judge John Facciola said in a keynote address at LegalTech New York that “…attorneys are lacking in technology skills not from ignorance but stubbornness.” He elaborated that they simply aren’t taking the time to learn the basics of handling electronic data and, as a result, they don‘t really know what is important and what is just marketing fluff.

Has that changed in the past 10 years? When I asked that question recently of a currently sitting Federal court judge, he replied: ”marginally”.

In this paper, we will examine the situation more closely and ask several questions:

  1. Why is the lack of technology expertise among lawyers important?
  2. How can we change the situation?
  3. What are some good resources to help lawyers improve their technology expertise?
  4. What can we do to help lawyers become technologically proficient?

We’ll publish Part 2 – Why is the Lack of Technology Expertise Among Lawyers Important? – on Monday.

So, what do you think?  Do you think that lawyers are where they need to be in becoming technologically proficient?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Project Management from Both Sides: eDiscovery Best Practices, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Preparing for Litigation Before it Happens, which we covered as a webcast on September 26.  Now, Tom has written another terrific overview regarding pre-litigation considerations titled eDiscovery Project Management from Both Sides that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was covered last Monday, part two was covered last Wednesday and part three was covered last Friday.  Here’s the fourth and final part.

Conclusion

So, that’s both sides of the PM discussion. It is clearly of importance to both lawyers and PM specialists, but do they have common ground?  If so, how can we reconcile their positions where they differ and then get both sides to work together towards their common goal?

Not only that, are there really just two sides here?  There are more potential “players” in a typical eDiscovery project than just the project manager and the lawyer.  For starters, there is even more than just one lawyer to consider here: there is the lead attorney, who is looking to win the case (or obtain a favorable settlement) and maximize billings and there’s also the attorney who manages the review effort.  Review is still a majority of the expense in a typical eDiscovery project and the attorney who manages review has to fill the role of both attorney (to understand the legal issues of the case and how they apply to reviewing the client’s ESI) and project manager (to manage multiple review attorneys to keep them on schedule and generating high quality results).

There are also other “players” who can figure into the project.  There are a lot of organizations and law firms that employ litigation service providers to perform services that include culling and processing of ESI and generating productions to opposing counsel.  Those service providers have to be successfully managed – poor communications with an LSP can sink any eDiscovery project by missing deadlines, inadvertent disclosures and more.

Just as there are service providers that are part of the process, there are also eDiscovery software providers.  Managing and coordinating eDiscovery projects also means getting the most out of your eDiscovery software, whether that involves early data assessment, analytics, processing, review or production.  As we have seen in at least one recent high-profile example involving a major financial institution, failure to fully understand the eDiscovery software tools you’re using can cause many of the same problems as poor communications with your service provider.

And, many eDiscovery projects involve the use of technology specialists, for areas such as forensic collection and technology assisted review.  Effective management of these technical resources is also essential to a successful project result.

With so many “players” in a typical eDiscovery project, meetings can involve participants from as many as five different organizations and execution of various tasks within the project can involve multiple participants as well.  So, how do you manage it all?  One place where you can get answers to that question and many others related to eDiscovery project management is the CloudNine sponsored webinar that I’m doing with Mike and Doug Austin on Wednesday, October 31 (yes, Halloween) titled Get a “Clue” Regarding Your eDiscovery Process.  We will discuss the various participants in the eDiscovery process, what motivates each of them, and best practices on how to avoid becoming the next high-profile eDiscovery disaster.  Hope to see you there!

So, what do you think?  How does your organization apply project management to your eDiscovery projects?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Project Management from Both Sides: eDiscovery Best Practices, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Preparing for Litigation Before it Happens, which we covered as a webcast on September 26.  Now, Tom has written another terrific overview regarding pre-litigation considerations titled eDiscovery Project Management from Both Sides that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was covered on Monday and part two was covered on Wednesday.  Here’s the third part.

The Lawyer’s Perspective to Project Management

What do lawyers think about this PM discussion? Do they think about it all? First let’s consider what they want from their ED project. Well that’s easy. They want to win their case.

And they want to adequately anticipate and minimize costs while they are winning. As Mike puts it “Clients expect not just cost predictability, but also cost containment.”

Mark Cohen, well known legal commentator and founder of legal delivery consultancy, Legal Mosaic, has been talking about this process for a number of years. In his article 7 Things Lawyers Should Know About Project Management, he defined Project Management as “the application of knowledge, skills and techniques to execute projects effectively and efficiently. It is considered a strategic competency for organizations, enabling them to tie project results to business goals — and thus, better compete in their markets. In its simplest form, Project Management defines the desired result, methodically structures the work into manageable pieces, and provides a framework of business and technology processes to achieve the result efficiently and economically.”

Mark also clearly differentiated PM from delivering a matter for a set price, which he felt was not only has a narrower definition than PM but also is a strategy not well suited to the many changes which often occur in an ESI project. These “unexpected turns”, as Mark calls them, a matter can take are better handled by a change order written into the PM Statement of Work/Engagement Letter.

Marks final thoughts were a nod to the global isolation of the US legal market in working with non-lawyers. He said: “Lawyers should familiarize themselves with project management skills because, without them, they may ultimately find non-lawyers taking charge of integrating and delivery their services, thereby reducing lawyers to a more marginal role in the overall process.”

Another consultant who has advocated PM for many years is Dennis Kennedy, a well-known legal tech commentator who recently retired as VP & Senior Counsel of Digital Payment and Labs at Master Card and is now an adjunct professor of law at Michigan State U School of Law. I clearly remember a 2010 podcast Dennis did with Tom Mighell on the Legal Talk Network called Lawyers as Project Managers, and remember thinking at the time that he was well ahead of the curve on the subject.

More recently, he was a member of a panel discussing PM published by Law Technology Today called Defining Legal Project Management.  In that discussion, Dennis, much like Mike Quartararo, felt that legal PM is based on general PM principles.

But Dennis went one step further saying:

“Lawyers tend to think that everything they do is unique and special. Other than existing in the legal context, I don’t see legal project management as being anything different than general project management.”

He did feel that trained PM managers were a plus because:

“most lawyers don’t learn project management techniques, the results can be hit or miss. You have to know your strengths and weaknesses. I’d want to hire a project manager. You might want to take on that role yourself. You need to take a hard and realistic look at yourself.”

Either way, he did feel that PM is:

“not a fad at all. I see it as a very important trend to watch. Certain clients will start to insist on lawyers using project management and other standard business workflow and process tools.”

He and his fellow panelists pointed to some excellent PM resources for lawyers including the Corporate Legal Operations Consortium, the ABA’s Law Practice Division Legal Project Management Interest Group, the Association of Corporate Counsel Legal Operations, Legal Marketing Association’s P3 Practice Innovation Conference, the True Value Partnering Institute, and the Law Vision Group LPM Roundtable.

We’ll publish Part 4 – Conclusion – next Monday.

So, what do you think?  How does your organization apply project management to your eDiscovery projects?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Project Management from Both Sides: eDiscovery Best Practices, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Preparing for Litigation Before it Happens, which we covered as a webcast on September 26.  Now, Tom has written another terrific overview regarding pre-litigation considerations titled eDiscovery Project Management from Both Sides that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was covered on Monday.  Here’s the second part.

The Project Manager’s Perspective to Project Management

How do project managers define their role? Well Mike sets it out on his company website when he says:

Project management is the structured application of skill, knowledge, tools and techniques to organize activities and bring about a desired outcome that meets a project or business need. While this may seem abstract, it is really quite simple: In the business world, even in a professional service field like the legal industry, there are business needs or goals that an organization may have interest in achieving. Organizations engage the person with the right skills, knowledge and talent to achieve these objectives and manage the necessary work. That person is a project manager. Project managers use their industry experience, education and training to complete tasks and the overall project work. They understand the resources, tools and workflows necessary. They are able to interact with people and organizations to perform the actual work. But project management is not a single “thing” or practice. It is not a specific tool that one simply picks up and transposes over the work in a particular industry. Rather, it is an operational theory and series of practices; a way of thinking; a methodical, disciplined approach to outcome-oriented work. There are principles, defined practices, tools and techniques involved, but more than any one thing, project management is an organizational tool. It is a framework that facilitates efficiency, quality, cost, and risk containment. Project management in the context of legal support also involves leadership of people…

He then goes on to offer some useful definitions, including:

  • Project: A temporary, non-routine endeavor limited by scope, time, and cost that creates a unique product, service, or result.
  • Project management: The structured application of skill, knowledge, tools, and techniques to organize project activities designed to efficiently bring about a desired outcome.
  • Project manager: The person possessing the applicable skill, knowledge, and talent, who is assigned by an organization and responsible for actively managing the project.
  • Process: The discreet steps, actions, or operations one takes to achieve project objectives, the tools used, and an understanding of what each part of a project will look.

But perhaps most important is that Mike feels quite strongly that “eDiscovery PM comes only after you have a firm grounding in general project management principles. Those principles are ideally suited to a project which has repetitive and dependent tasks, a variety of people and organizations involved and the need to better manage scope, timing, and costs.” ( https://www.relativity.com/blog/the-anatomy-of-project-management/ , August 29, 2016).

Which of these principles can we use in eDiscovery?  I’d suggest the following points made by Mike as being the most critical:

  1. Cost: The ability to estimate, budget, and manage the costs of the project.
  2. Scope: What Mike calls “What does done look like?”
  3. Time: The Project Management Lifecycle to avoid missed deadlines and fragmented schedules which lead to added cost
  4. Tools & Techniques: What tools are required, including written protocols or best practices?
  5. Output: requirements during and at the conclusion of an ESI project

I should note that Mike goes into even more detail when discussing the Project Management Lifecycle. He breaks the lifecycle down into five Project Management Process Groups. He describes this as a framework which he describes in this graphic:

Mike also goes on to say that the lifecycle does not end here. Within each process group there are areas of responsibility that a project manager must focus on throughout a project.

Known as the Knowledge Areas, these are the core process elements in each of the five process groups:

  • Integration management
  • Human resource management
  • Scope management
  • Communication management
  • Time management
  • Risk management
  • Cost management
  • Procurement management
  • Quality management
  • Stakeholder management

All of these provide a framework for the project manager to estimate, budget, and manage a project. And these traditional project management methodologies work equally well in the e-discovery context. As Mike said in the blog post quoted above, “Doing things like planning, communicating, setting clear expectations, figuring out what ‘done’ looks like, [are] just a sensible means of approaching litigation and e-discovery in particular,”

We’ll publish Part 3 – The Lawyer’s Perspective to Project Management – on Friday.

So, what do you think?  How does your organization apply project management to your eDiscovery projects?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Project Management from Both Sides: eDiscovery Best Practices

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Preparing for Litigation Before it Happens, which we covered as a webcast on September 26.  Now, Tom has written another terrific overview regarding pre-litigation considerations titled eDiscovery Project Management from Both Sides that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

I’m going to show my age now and quote an old Joni Mitchell song:

I’ve looked at clouds from both sides now
From up and down and still somehow
It’s cloud’s illusions I recall
I really don’t know clouds at all

That’s how I feel about Project Management, which we’ll refer to as PM for the remainder of this article. PM has been a major topic at trade shows recently, especially when Mike Quartararo is speaking. Why?

Well first because Mike’s discussions on how to handle PM are thoughtful and comprehensive. He is a graduate of the State University of New York, after which he studied law for one year at the University of London. He is a certified Project Management Professional (PMP) and a Certified E-Discovery Specialist (CEDS).  And he was the Director of Litigation Support at Stroock & Stroock & Lavan LLP in New York for 10 years.  Now, Mike has his own consultancy practice at eDPM Advisory Services.

And perhaps most important, Mike has literally written the book on the subject. It is called Project Management in Electronic Discovery: An Introduction to Core Principles of Legal Project Management and Leadership In eDiscovery and is available on his web site, www.eDiscoveryPM.com (and also on Amazon here).

But after listening to Mike speak at the recent ILTACON18 conference, Doug Austin mentioned to me that it seemed there is another side to PM that is being ignored, that of the lawyer’s opinion on the subject.  Since discovery is the most time-consuming and expensive aspect of litigation, managing it effectively is always a concern of the lawyers but we seldom hear what they think of all the talk about PM. So, let’s look at the issue from both sides now.

We’ll explore the implementation of eDiscovery project management from both sides, as follows:

  1. The Project Manager’s Perspective to Project Management
  2. The Lawyer’s Perspective to Project Management
  3. Conclusion

We’ll publish Part 2 – The Project Manager’s Perspective to Project Management – on Wednesday.

So, what do you think?  How does your organization apply project management to your eDiscovery projects?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Preparing for Litigation Before it Happens: eDiscovery Best Practices, Part Seven

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s?, eDiscovery for the Rest of Us (which we also covered as a webcast) and Litigate or Settle? Info You Need to Make Case Decisions (which is our next scheduled webcast on August 29th).  Now, Tom has written another terrific overview regarding pre-litigation considerations titled Preparing for Litigation Before it Happens that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into seven(!) parts, so we’ll cover each part separately.  Parts one, two and three were published last week, part four was published Monday, part five was published Tuesday and part six was published yesterday.  Here’s the seventh and final part.

BTW, in addition to exhibiting at ILTACON in National Harbor, MD next week in booth 936, CloudNine will also host a happy hour on Tuesday, August 21 from 4:30 to 6:30pm ET at the National Harbor’s Public House (click here to register).  Come and get to know CloudNine, your provider for LAW PreDiscovery®, Concordance® and the CloudNine™ SaaS platform!  We want to see you!

Concluding Remarks

An IG strategy will depend entirely upon the business practice of your client and their various needs, including but not limited to proactive handling of eDiscovery matters for litigation.

ARMA suggests five main guidelines for building out the IG strategy that provide terrific guidance for any organization looking to implement or improve its IG program.  They are:

1) Think big but start small: A good data governance process has three components: people, process and technology. Start by identifying and hiring the right people, then define a process, and finish by sourcing the technology to get the job done.

2) Build a business case: I had a client tell me once, “anyone can tell me what my problem is, Tom. You suggest solutions.”  What are your goals? What are you trying to improve and how will the IG policy do it? Show an ROI to drive the change.

3) Metrics: You must be able to measure progress and display success to make your plan succeed. And since the plan will most likely take time to implement, use metrics to set milestones and measure progress.

4) Communicate: Regular and consistent communication is essential to show progress and correct problems that may arise during implementation.  Include not just team members but all people in the organization with an emphasis on key players.

5) Get buy in: The project must become part of the business not something with a beginning and end date.  You are making changes, not a product. Get buy in from everyone.

With an increased concentration on the two-fold concerns of privacy and security, IG has become more important than ever.  These five guidelines can help your organization more efficiently and cost-effectively manage its data, enabling it to accomplish its organizational IG goals.

So, what do you think?  Does your organization have a plan for preparing for litigation before it happens?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.