David J. Kearney

October 15, 2011

5 Strategies to Help the e-Discovery Process Run Smoother

Filed under: e-Discovery,Litigation Support,Management,Technology — davidjkearney @ 9:27 pm

5 Strategies to Help the e-Discovery Process Run Smoother

David J. Kearney
david.kearney@comcast.net
October 2011

Legal, paralegal, e-Discovery, and technology teams need to work closely together to help ensure that there are no missteps during a case that involves e-Discovery. Unfortunately, there are many points along the way that can cause misunderstanding, frustration, and even missed deadlines. Attorneys & legal staff, e-Discovery personnel, and technologists often speak different languages, look at projects from different perspectives, interpret needs with different levels of urgency, and are unaware of the impact of requests and decisions.

To help alleviate the frustration, pain, and hostility that can arise between those that are trying to accomplish the same goals, but don’t understand the other’s needs, here are 5 things to try to help educate, understand, and produce the desired results for the benefit of the firm, clients, and case:

  1. Communicate Early/Communicate Often

Communication is probably the most important aspect of any case or project, but all too often good communication fizzles out quickly. The legal team, the e-Discovery personnel, and technologists need to be fully aware of the components of the case and e-Discovery project. Have targeted meetings to help each other understand the legal aspects of the case, the technology needs, processes required, time needed to load & process data, defensibility, various costs, deadlines, review process, production process, and 3rd party needs (as necessary). Early and on-going discussions will help the planning process and help to eliminate surprises. No one can afford to be left out of the loop.

  1. Understand That You Don’t Understand & Ask for Help

Realize that you may not know why is takes so long to process 10 GB of data from backup tape, where to begin in understanding client ESI, why counsel needs to understand client ESI and retention policies, why it is critical that data be protected when litigation is reasonably anticipated, or why data maps and network history is important.

You don’t have to know it all, just know where to turn. An attorney, a paralegal, an e-Discovery specialist, technologist, and even a vendor or expert is usually more than happy to help fill the knowledge gaps. Keep asking questions if the concepts aren’t clear. Those working with you on a case will appreciate the “dumb” questions at the end of the day when everyone is on the same page. When you are asked a question that may seem unimportant, take the time to understand the question and context in which it is being asked.

  1. Share Knowledge

Share knowledge on topics that everyone should know about, such as internal capabilities, vendor relationships, the processing of ESI, review tools, legal holds, authentication, meet & confers, collections, culling methodologies, the litigation life-cycle, and any other topics that can benefit the team. Perhaps include clients in these knowledge sharing sessions.

 Some ideas to help share the knowledge:

— Hold short seminars over coffee – – keep it to 10 – 15 minutes.

— Create and distribute quick guides/cheat sheets on concepts.

— Share articles on relevant technology, legal topics, and best practices.

— Hold monthly or quarterly lunch and learn sessions with vendors or experts to discuss a variety of legal and technical topics.

— Talk to each other face-to-face.

  1. Have Alternatives Available

As much as we don’t want to consider the unlikely, Murphy’s Law is inevitable. Plan, plan, and plan…then plan some more. Know the risks and have alternatives available. Have a plan if the processing of ESI takes longer than anticipated. Have a plan if files are encountered that can’t be processed using in-house tools. Have rolling and file transfer options available for getting data from point-A to point-B. Have a plan to incorporate 3rd party technology into a case to help cull and manage data that has ballooned out of control. Have a plan for the last minute request. Plan for the worst, hope for the best.

  1. Strive for Trust & Be Flexible

Most lawyers, paralegals, e-Discovery specialists, and technologists are all driven to succeed and want to perform to the best of their abilities. Helping each other understand the nuances of what it takes to perform tasks as an attorney, paralegal, e-Discovery specialist, or technologist is a key to success. Build trust by staying ahead of issues, be forthcoming about the case scope, changes, & mistakes, and know that some risks can only be identified and not necessarily mitigated. Above all, be flexible. Know that the scope of discoverable items may change, custodians may be added, and that additional data locations may be identified. Know that changing the scope will inevitably change the cost and/or time to complete the required tasks.

Although this sounds much like peace, love, and understanding in e-Discovery, it is very important to engage the legal team in technical concepts & decisions, technologists in details of the case to help determine the specifications, and the e-Discovery personnel in legal and deep technological matters that may impact the case. Ultimately, the firm serves the client and the case, so it is essential and in the firm’s best interest that the all of the parts move together to create a synergy that promotes success and minimizes pain.

Considerations When Building Firm Capabilities to Manage e-Discovery

Filed under: e-Discovery,Litigation Support,Management,Project Management,Technology — davidjkearney @ 9:14 pm

Considerations When Building Firm Capabilities to Manage e-Discovery

David J. Kearney
david.kearney@comcast.net
October 2011

Designing and implementing an e-Discovery strategy can be a daunting undertaking for firm management, practice groups, and information technology. With all that is required to support the infrastructure, both from an administrative and technological perspective, it quickly becomes overwhelming and resource intensive, in most cases, to build an e-Discovery organization that follows a set of standard operating procedures and policies, as opposed to purchasing an application with the thought that the firm’s e-Discovery issues are resolved. With the exponential increase in ESI collection sizes, the rapid changes in technology, the high expense of qualified personnel, and smaller clients with very conservative budgets and limited knowledge in the area of e-Discovery, all but the largest of firms need to seriously consider a myriad of options when bringing e-Discovery processes in-house or outsourcing the function or designing a hybrid model. There is no one-size-fits-all approach, but the large firms and small to mid-size firms need to approach the development of such services much differently.

The following are considerations that need to be explored when developing an e-Discovery strategy:

Functions – What functions does the firm want to perform, if any? Collection, hosting of data & review application, database management, the review process, data culling, data processing & conversion, and productions are all functions that could equally be insourced or outsourced. There are costs and risks associated with performing these functions internally or externally.

Positions – What positions within the firm will be designated for Litigation Support/e-Discovery? What department will the position(s) report? How many personnel are needed? What is the skill set, education, & experience required? What is the compensation of the position(s)? Does the environment support the salaries needed to keep qualified personnel interested, engaged, and dedicated? Does anyone currently on staff, such as paralegals, have the required skills to transition to an e-Discovery role? Will the position(s) have a backup to accommodate vacations and peak workloads? Will the position(s) be able to manage the workflow with vendors due to technical complexity, volume, or extremely tight deadlines? Is there anyone willing at the senior management level to support the e-Discovery position(s)?

Technical Infrastructure & Software – What kind of technical infrastructure & software application(s) will the firm support? Disk space, servers, backup technology, disaster recovery locations need to support the amount of data that you may house. Is the current network bandwidth sufficient to handle the network traffic between locations? The technology infrastructure costs to support a robust application suite and usage demands requires a significant monetary investment. Is the solution scalable? Is the software under regular development to include the latest bug fixes and technological advancements? Does the software developer have the infrastructure to handle support requests, code changes/feature requests, and consulting? Data sizes explode without warning, so is there a plan to expeditiously handle the needs? Will the firm be allowing outside parties, such as co-counsel and experts, to access the firm stored data securely? Does the firm have a service level agreement to respond to any access issues to non-firm personnel?

Application(s) vs. Solution – Is there an understanding that the software is only half the battle when it comes to handling an e-Discovery project? The application(s) should be a part of the overall strategy of the e-Discovery organization within the firm, whether supported in-house or outsourced. Once it is determined what functions need to be performed and how the service is delivered will determine the best application(s) for the job. Selecting an application should never be the first decision made when setting up the e-Discovery organization.

Clients – Are the firm’s clients acutely aware of e-Discovery and what their requirements are? Are the clients knowledgeable of their own electronic data? Have the clients previously paid for e-Discovery related processes and services? Are the clients aware that the proper use of technology, when fitted to a case, can actually help reduce costs due to less review time and quicker data assessment?

Cost Recovery – Are there cost recovery mechanisms in place to recover costs associated with the collection, processing/conversion/scanning, hosting, transfer, and production of data? Are the costs being captured hourly, are they task oriented, or both? Will the client base pay costs from 3rd party vendors, but not from the firm regarding e-Discovery services?

Training – Is there a training program in place? Are the attorneys, paralegals, and e-Discovery personnel enhancing their knowledge by learning about the latest techniques to manage e-Discovery, manage projects, collect data, reduce data, and process data? Who provides the training for the review and early case assessment tools being used? Knowing about the latest technology, best practices, and ways to better manage a project will certainly help manage costs, manage expectations, and better manage the case.

Firm Culture – Will the firm culture support the commitment needed to build an organization in-house? Is the firm in a position to invest significantly in an area that is not their core competency? Can the firm tolerate the learning curve and operational shift that will inevitably be encountered when building an internal department or outsourcing the function? Commitment is needed from firm management, practice groups, and even information technology (especially when building the technology infrastructure in-house).

Data Reduction Methods – Does the firm have an awareness of data reduction and culling practices? Beyond date range and custodian filtering, is the removal of system files & designated file types, and the use of clustering, deduplication, auto & predictive coding, etc. used to help reduce the amount of linear review needing to be done?

Vendor Relationships – Does the firm have vendors identified that can recommend solutions, process data, host data, and assist with productions? Is the vendor truly a business partner that recommends best practices, cost containment methods, and implements project management practices that are designed for the individual case? Does the vendor maintain an audit trail of how data was handled, processed, and delivered? Discuss with vendors the possibility of developing some sort of agreement and pricing model that can be applied differently to smaller and larger cases. Vendors have the ability and it is in their best interest to be creative when it comes to volume pricing, case type pricing, fixed-fee pricing, or usage pricing. Vendors realize each case is different and has different needs. There is no perfect solution, either internally or outsourced, so keep in mind that no vendor or vendor solution is going to be a panacea, but it is how the vendor responds to issues that will make or break the relationship.

Management of Functions – Is there a size limit, monetary value, or deadline threshold that dictates when and how an e-Discovery project is handled? There are times when additional help is needed by additional technology, more personnel, or outsourcing the entire project to a 3rd party that has the bandwidth to handle the complexities. Unfortunately, sometimes due to circumstances the project must be managed in-house with limited resources to the detriment of the client, firm, and case. Are there documented intake procedures? Is data chain of custody documented? Is evidence physically secured? Is having an in-house e-Discovery service a strategic advantage to the firm? Are the services provided value added, break-even, or profit driven? Value added e-Discovery services may not be sustainable in the long term due to the internal costs that are absorbed. A profit driven model may become a detriment because a firm may not be able to be competitive with 3rd party services.

The decision to in-source, out-source, or build a hybrid model is not an easy one to make. Most firms have some sort of quasi-hybrid model to outsource some services, but is there a defined process to manage client data from the onset of a case, manage it consistently throughout the life of the case, and have a set of operating procedures that can withstand any question of how the data was managed, processed, and accessed?

In some cases it may make sense to build an in-house e-Discovery department that is pretty much full-service if the firm is willing to assume the risks and invest significant monetary resources, personnel resources, and management support. It may also make a lot of sense to outsource the entire technology infrastructure and services needed to support applications, servers, backups, software and hardware upgrades, storage space management, processing and hosting data, case consulting, and 24 X 7 X 365 availability and support. It may also make sense to have a combination, or hybrid, model to perform some functions in-house and send others to a 3rd party.

All firms that practice litigation must have some sort of organization around handling e-Discovery. Software alone or a reactive plan will not position the firm to respond rapidly, consistently, or effectively to firm and case needs. Regardless of how the services are provided, a firm must look at all of the components required and decide upon the best approach that consistently fits the firm and its client base the best.

October 6, 2011

4 Simple Tips for Protecting the Real Business from Technology

Filed under: Management,Project Management,Technology — davidjkearney @ 11:26 am

4 Simple Tips for Protecting the Real Business from Technology

In today’s lean times with layoffs & attrition and voluntary & accidental departures, doing more with less can make an undesirable situation even more dire when a firm puts all of its eggs in one basket.  The loss of a single individual or department, such as network personnel, litigation support/e-Discovery personnel, development personnel, etc. can have a very uncomfortable impact on firm operations.  A core team member departure may not bring a firm to its knees, but it could certainly make the road very bumpy on the way back to normalcy.  Technology, in large part, is a critical element in law firm operations and a bit of planning can go a long way to maintain business continuity.  Most firms have at least a minimal recovery strategy in the event of data center outages/disasters, lost data, and protecting the perimeter, but is there a plan in place to quickly recover in the event of critical departures and those functions that the personnel provided.  Many times intellectual property, historical knowledge, and how things really work are lost when an employee exits.  Here are some things to consider when planning for those inevitable departures:

1.     Cross Train

Cross training can be a simple fix.  By showing others how to perform tasks in the absence of others can be a business-saver.  Unfortunately, it is not always possible to cross train team members due to the high demands of their current work schedule, skill level, or simple refusal to inherit any additional responsibilities.  Nonetheless, cross training is a simple fix and doesn’t require additional headcount.  Unfortunately, cross training can cause individuals to have insecurities since their job function is perceived as no longer protected & secure.  Some individuals are very much protective of their role that any attempt to get an individual to share their complete knowledge and to communicate is futile.  Also, there may be an expectation that the “back-up” individual can perform to the same standards as the primary personnel, which would most likely never be the case.

2.     Document Processes and the Environment

Something as simple as documented network diagrams with laymen explanations, project plans, processes required to perform specific functions, service provider contact information, common practices, and where data is saved throughout its life-cycle before a departure occurs can be a business-saver.  There should not be any assumptions that all systems are setup, configured, and maintained identically.  It should also not be an assumption that it’s easy to find a replacement.  Even when a replacement is found, it may take at least months for the replacement to get up-to-speed.  If the firm has to incur high costs to have a company or individual temporarily provide some level of service on a moments notice to get the processes flowing again until a replacement is found, the costs will be significantly higher than what it would have cost to have personnel document at least the most common routines and functions.  There aren’t too many people that like doing mundane documentation, but it captures important, maybe even mission critical, info for you or the next hire.

3.     Preemptively Outsource Some Functions

Before adding headcount to provide backup, overflow, or additional capacity functions, perhaps looking at outsourcing some functions will provide the firm with better business continuity options, such as personnel & function coverage due to departures, the capturing of the details of the environment, keeping headcount costs down, and having an alternative set of eyes on processes and functions.  It appears that outsourcing IT is still not mainstream in law firms, but some functions lend themselves easier than others to outsourcing, such as e-discovery services and some application development.  It may be a good time to test outsourcing pieces of a critical function before an entire function or department walks out the door.

4.     Evaluate the What-Ifs

What if the firm’s litigation support/e-Discovery individual(s) resigned tomorrow?  What if the firm’s core developer(s) that interacts with clients and designs custom applications submitted 2-weeks notice today?  What if the IT director that knew all of the band-aids that shored up the network and also protected their territory was in a debilitating accident?  Once an individual resigns there is a finite amount of time to gain any wisdom of the environment from the individual especially if he/she is expected to handle regular day-to-day tasks until their last day; any intelligence gained will be piecemeal at best.  Think about it.

Would you know what software is really being used?  What projects are open?  What projects have just been assigned verbally?  Where are the “bodies buried”?

Obviously, a firm would still operate as a business that provides legal counsel, but why not take some steps to proactively protect the core business from critical interruptions or sub par service.  As the saying goes, an ounce of prevention is worth a pound of cure.  The immediate costs should not be the only consideration when proactively planning for the inevitable critical departure.

Just as trying to rebuild years of data in the absence of back-ups, planning and having a strategy to recover from disaster/personnel departures can cost less and be much less of a disaster than what it would otherwise to limp along, figuring out how the infrastructure is setup, understanding the details of the platforms, knowing the maintenance routines, custom program development processes, and how the data and related systems is processed from various departments, while hoping that nothing severe happens to the environment during this transition.

For those firms that have a high tolerance for business disruptions and deep pockets to recover, the potential issues caused by critical departures may not be as much of a disaster, but from where I sit such an event could be business critical.

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