David J. Kearney

April 16, 2014

Law Firm Outsourcing of eDiscovery

Listen to Karl Schieneman, Founder and President of Review Less, a predictive coding consultancy and document review company talk with Dave Kearney from Cohen and Grigsby and Nick Reizen from Xact Data Discovery about how law firms view outsourcing eDiscovery tasks like collection, processing, hosting and reviewing data to technology oriented vendors. It is definitely a growth trend and there are lots of views on this topic depending on which lawyer you talk to. Some firms want to own the EDRM model. Others want to outsource. And others consider eDiscovery a distraction to the practice of law so they ignore it.

Recorded 04/16/2014

This podcast was first published at ESIBytes and is available here with permission.  For more information about ESIBytes, visit their website at http://www.esibytes.com and visit ESIBytes’ Podcasts  at http://esibytes.com/category/blog/category-4/

Podcast Audio:  https://app.box.com/s/wo1rmrheo4065vnsv53u

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March 4, 2014

Effective Service Delivery, Providing Client Value, and Applying Sound Decision Making to Matter Management

Today’s Legal Market Landscape

As lawyers and law firms continue to recognize the need to more effectively engage, manage, and retain clients, it is becoming obvious that the adoption of tools and models to gain new work and keep existing clients is a necessity.   Models that address the overall flat growth for legal services, the “new normal” economy since The Great Recession, the growing sophistication of clients, and new and non-traditional legal service providers in the legal market must be utilized to justify the traditional billable hour and also to be able to offer various alternative fee and service arrangements.

Regardless of the terms or concepts used, whether it is called legal project management or variants of client value initiatives, practice innovation, etc., it is becoming essential that when responding to an RFP or bidding for new work, lawyers must have at least a small arsenal of tools at their disposal to effectively price a matter, efficiently manage a matter to completion, while also producing value to the client.  Part of the arsenal of tools must include training in the new economies of legal services; the ability to track billable time at the task and activity level; providing, communicating, and analyzing metrics of the business and engagement; the ability to budget a matter based on a combination of internal metrics, the value of the service being provided, historical data, and intuition; and being able to provide alternative fee arrangements not based solely on hourly rates.

A lawyer or firm may not know what exact steps to take and each step may vary across firms, practice groups, or individual attorneys, but the following are some essentials to have an understanding of to remain competitive to upstream and downstream providers, and utilize resources that can provide guidance in helping to move your practice towards meeting client expectations in today’s legal services environment.

Training

An acknowledgement of how the terrain has changed over the past few years needs to be addressed at the organizational level, regardless of the size or client-base.  The elephant-in-the-room should not go unacknowledged.  An overall discussion of how the business of law has changed and how this may impact a practice group or firm is the first step in ensuring that there is at least anrecognition that change is on the horizon.  Looking a year or two down the road to peering five-to-10 years out and how the trends of today will impact the ability to gain new clients and retain them may make things clear that a strategic plan should be designed now; One that takes into account what is here & now and what other changes may be looming.  Examine project management practices, innovations in the delivery of legal services, and what clients expect beyond the initial services they need and how best to service these needs is a good place to begin.  Educate clients and practice groups and let them educate you in return.

Standardized Time and Activities

Consider keeping time utilizing the standardized categorization of legal work and expenses.  The Uniform Task-Based Management System (UTBMS) was developed by the American Bar Association, the Association of Corporate Counsel, along with corporations and law firms.  This standard will assists with electronic billing; the process of better understanding where time is spent on a matter, across matters, and within a practice; can be used to better prepare RFP responses; and enhance communications within your team and with your client…not to mention you will be prepared when a client requests that that these standards be instituted in their billings.  Implementing a standard time-keeping and task structure will certainly require change to how entries are logged and billed, but will enhance the data captured that wouldn’t be able to be accurately measured otherwise.  Some clients are already expecting this from their outside counsel and it is only a matter of time before other clients begin to expect this standard way of time and task accounting.

Workflow Improvement

Identifying workflows, identifying inefficient workflows, and automating efficient workflows where possible are ways of streamlining the work involved on a matter.  By analyzing what works and what doesn’t will help remove inefficient practices that can then be made more efficient to help drive down costs and meet client expectations.  Before any automation can be put into place, it is probably a good idea to make sure that workflows are efficient; otherwise an inefficient workflow will be automated.  Study workflows of matters and find efficiencies and implement practices that can take advantage of similar processes across matters to manage them more effectively, perhaps even as a portfolio.

Metrics

Examining the all-around costs of people, places, and things and how those costs impact the degree of flexibility that can be applied to pricing work is essential to knowing if a certain piece of work will be done at a profit or loss and by how much.  How much of a billing rate covers overhead, such as office space, benefits, staff, technology, supplies, etc.?  These costs have to be covered and accounted for.  When a matter is closed is an analysis done to compare the budgeted costs versus the actual costs?  Is there a communication model around a matter and/or client?  How is the status of matters communication to  the internal legal team and to the client?  Metrics analysis is vital to budgeting, managing, and improving the delivery of services…within scope and on-budget.

The Outcome

Once the systems are in place that keep the lawyers and legal team up-to-speed of legal market changes and client expectations, that standardize billing entries, that define efficient workflows, that account for costs and expenses related to a matter, the ability to utilize internal information, take advantage of the knowledge that is now available, the analysis of industry benchmarks against your practice, the examination of alternative service delivery mechanisms, and the application of project management tools and practices to the management of matters will allow for hourly rates to be based on the work needing accomplished and alternative fees arrangements that fit to the tasks required for the matter.

Hourly fee and alternative fee arrangements can be proposed more effectively when designed based on the analytics of an efficient process, based on historical data in-line with new work requirements, is consistent within a practice group and matter type, and in a way that is in-line with the goals of the organization or individual seeking a solution to their matter.

Change is never easy and the changes required to work in an environment that has changed significantly over a short period of time will require a long-term commitment, strategy, and team to ensure that client requirements are met head-on with transparent and predictable results.

David J. Kearney
www.linkedin.com/in/davidjkearney/

February 11, 2014

Podcast: E-Discovery in Healthcare: What Legal and Healthcare Professionals Need to Know

Filed under: e-Discovery,Litigation Support,Management,Project Management,Technology — David J. Kearney @ 5:11 pm

Consider This – David Kearney – 11.06.13
“E-Discovery in Healthcare: What Legal and Healthcare Professionals Need to Know”
Host: Bridget Novak
Guests: David Kearney, Director of Technology Services, Cohen & Grigsby, P.C.
Topic: e-Discovery in Healthcare
Discussion: Requirements for managing health related documents and records; the need for healthcare workers need to become much more familiar with the litigation process and the role the legal industry plays within the process.

“Healthcare organizations should identify the components of their legal health records and how they will ensure the legal integrity of the health record and its various components are assembled and maintained.

It’s the organization providing the care that says for every patient we are capturing this information that makes up the legal health record for our organization, so there is a consistent record captured for that organization.

It serves as a method of communication among healthcare providers caring for a patient and it also provides supporting documentation for reimbursement of services provided to that patient.”
– David Kearney

Podcast:  https://app.box.com/s/pvsxu58myx2s3fem7btr

Consider This – David Kearney

This podcast was first published at The Organization of Legal Professionals and is available here with permission.  For more information about The Organization of Legal Professionals, visit their website at http://www.theolp.org and visit OLP’s “Consider This” Podcasts hosted by Bridgett Novak at http://www.theolp.org/Default.aspx?pageId=1701543

February 4, 2014

Cohen & Grigsby P.C. selects Kroll Ontrack as its ediscovery portfolio partner

Filed under: e-Discovery,Litigation Support,Management,Project Management,Technology — David J. Kearney @ 12:41 pm

Cohen & Grigsby P.C. selects Kroll Ontrack as its ediscovery portfolio partner  

Firm adopts repeatable ediscovery approach to give clients process consistency, cost predictability and better overall case outcomes

MINNEAPOLIS – Feb. 4, 2014Cohen & Grigsby, a law firm with headquarters in Pittsburgh, PA, and an office in Naples, FL, and Kroll Ontrack today announced Cohen & Grigsby selected Kroll Ontrack as its preferred ediscovery technology and services provider. Leveraging Kroll Ontrack for its portfolio of ediscovery matters provides Cohen & Grigsby’s litigation and labor and employment departments with the benefit of a repeatable approach to ediscovery, cost predictability and Kroll Ontrack’s latest ediscovery.com technology platform to both review and project manage its matters.

“With increasingly complex legal requirements and growing volumes of ESI, ediscovery stakes are high. A smart approach is required,” said Partner, Anthony Cillo, Chair of Cohen & Grigsby’s Litigation Department. “That smart approach includes Cohen & Grigsby focusing on advocacy and managing the merits of the case, while partnering with an industry leader such as Kroll Ontrack to minimize the ediscovery risks and costs for the corporations we represent. We are not only minimizing ediscovery risks, but providing our clients with world-class ediscovery solutions at predictable costs.”

In addition, Cohen & Grigsby Director of Technology Services David Kearney added, “Kroll Ontrack and its ediscovery.com platform rose to the top of our partner selection process because they offered a standardized approach to ediscovery coupled with industry-leading predictive coding technology at a predictable price.”

“Kroll Ontrack is excited to partner with progressive firms like Cohen & Grigsby that recognize the value of a repeatable approach to ediscovery,” said Dean Hager, president and CEO, Kroll Ontrack. “By selecting our portfolio solution, Cohen & Grigsby now has access to the industry’s most powerful processing and review technology, the industry’s first tool to manage ediscovery as a portfolio, a dedicated portfolio case management team, and a pricing approach that encompasses a breakthrough concept of reusable capacity such that as additional projects arise, ediscovery costs remain the same.”

As part of the portfolio solution, Cohen & Grigsby will be taking advantage of Kroll Ontrack’s ediscovery.com platform, which was announced in October 2013. Ediscovery.com encompasses several products, including ediscovery.com Manage, which is the industry’s first solution for collaboratively managing ediscovery as a portfolio from any device, and ediscovery.com Review, which is a single tool that delivers unprecedented control of data volume and costs across early data assessment, analysis, review and production.

For more information on these products, visit: www.ediscovery.com.

About Kroll Ontrack Inc.
Kroll Ontrack provides technology-driven services and software to help legal, corporate and government entities as well as consumers manage, recover, search, analyze, and produce data efficiently and cost-effectively. In addition to its award-winning suite of software, Kroll Ontrack provides data recovery, data destruction, electronic discovery and document review. For more information about Kroll Ontrack and its offerings please visit: www.ediscovery.com or follow @KrollOntrack on Twitter.

About Cohen & Grigsby P.C.
Cohen & Grigsby represents clients across the spectrum of commercial and business disputes, including: business breakups, insurance coverage disputes, antitrust claims, theft of trade secret and non-compete agreements, securities law violations, accounting firm defense and shareholder issues.  Cohen & Grigsby results-oriented litigators have years of hands-on experience trying cases in the courtroom and before administrative bodies and arbitration panels. Our labor & employment attorneys defend employers in all types of cases, including discrimination, retaliation, harassment, wrongful discharge, wage and hour violations, defamation and breach of contract. Please visit www.cohenlaw.com.

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Media Contact: Kaitlin Shinkle, 952-516-3581, kshinkle@krollontrack.com

https://app.box.com/s/k05iqwsg6q3lshhp6dfs

February 1, 2014

How to Prepare the Record for an E-Discovery Request

Filed under: e-Discovery,Litigation Support,Management,Project Management,Technology — David J. Kearney @ 9:13 pm

Journal of AHIMA February 14

How to Prepare the Record for an E-Discovery Request
By David Kearney

AT A MINIMUM healthcare organizations should identify the components of their legal health record. The legal health record is a consistent declaration of what patient care information is maintained within an organization and what information would be released during a legal or investigatory event. It is the key to the consistency of patient health information across a healthcare organization. Consistent patient care information is the cornerstone of being able to produce this information completely and accurately upon request during an event without prejudice for business or evidentiary purposes.

Health information management (HIM) professionals are typically the custodians of health records and are responsible for the care, custody, and control of the records. HIM serves as a key component in knowing how health records are created, maintained, and used in the day-to-day care setting. It is vital that HIM professionals have a complete understanding of the official health record and its potential requirements. As more providers use electronic health records and manage health information electronically, HIM professionals must become familiar with e-discovery processes and requirements.

The Role of the HIM Professional
A recent requirement for health records that health information managers need to be well versed on is how these records are compiled and controlled as it relates to the litigation lifecycle or an investigation. HIM professionals need to be able to communicate with in-house attorneys, outside counsel, and even perhaps opposing counsel regarding the legal health record contents and the attestation of patient records for evidentiary purposes during a litigation or investigatory event.

Since most health records are now electronic, it is important that HIM professionals be aware of how electronic records are preserved, collected, processed, and presented during a lawsuit.  Electronic evidence has dictated guidelines that must be followed during the discovery process as prescribed by the Federal Rules of Civil Procedures—procedures that govern civil procedures in the US federal courts—and it is equally important to expect at least the same amount of rigor to be applied to electronic
evidence at the state or jurisdictional level.

The Federal Rules of Civil Procedure, specifically rules 26–37, provide guidelines to the discovery process of evidence, including duties of disclosure, topics of discussion between the parties involved, and how documents are to be produced.

Another great tool, while not mandated by court rules, is the Electronic Discovery Reference Model, also known as the EDRM (available at http://www.edrm.net). The EDRM depicts the flow and series of phases that electronic evidence traverses during the litigation process, including how the information is identified, preserved, collected, processed, reviewed, and produced.

First and foremost, data governance is addressed at the far left side of the EDRM workflow, as information management, which underscores the importance of properly managing data for the litigation/e-discovery process. This is the starting point where healthcare organizations have an opportunity to get it right and to be in an ideal position for any anticipated events.  This is also the initial phase where many issues can arise during discovery proceedings, positioning an organization at a disadvantage from the onset of any data retrieval exercise.

Know the What and Where of Your Data

Healthcare organizations must know what information they have, where data is located, the duration data must be retained, and what information is needed to respond to a legal, investigatory, or other event. Managing organizational information with sound policy and processes reduces costs, mitigates risk, and protects the organization’s personnel, patients, and revenue.

A second component to a litigation or investigatory event, once sound data governance strategies have been implemented, is the ability of health information management professionals to respond to an event or an anticipated event. It is vital that HIM professionals have a well-developed readiness plan to respond to a legal hold or preservation order of relevant information that is specific to a matter.

To avoid a claim of spoliation— the intentional or negligent hiding, changing, or destruction of relevant materials—healthcare organizations should have a strategy that facilitates preservation of potential evidence once relevant data has been identified. Depending on how information is stored and collected within the healthcare setting and how this information is managed and maintained, it will be necessary to plan on this information being used as evidence.

As such, health information managers must not only be intimately familiar with their organization’s electronic health record (EHR) systems, but how these systems can produce the
information in a legally sound manner. Preserving the data as it is maintained in the normal course of business, along with all of the detailed metadata contained within the EHR, is a must to ensure complete and accurate information. Doing this is a much more intricate process than typical metadata one finds in word processing, spreadsheet, and e-mail documents.

EHR systems were not necessarily designed with litigation in mind, so it is critical that HIM professionals become familiar with how data can and cannot be provided during an event and how that data is managed throughout the lifecycle of litigation or an investigation.

One of the other critical components necessary during an event is a data source map, or an information management plan, that for litigation purposes identifies expert users or custodians of the data, who knows what about the data, how it is maintained, and any associated data retention policies.

The process of event preparedness happens long before the triggers that may lead to a litigation or investigatory event. It requires organizations to have an understanding of responsibilities and to define policies for regulation and business needs. Policies and procedures that help actively manage data are not just an IT or HIM “problem” but a collaborative business initiative where organizations must develop a well-defined structure and process to understand, manage, and prepare for litigation.

Legal counsel, HIM professionals, clinicians, information technology professionals, and C-suite professionals should work together to successfully manage information for the ediscovery process, implement a litigation response plan, and develop or update organizational policies.

Technology alone cannot replace the joint effort needed to develop sound processes. The process and technology needs to be defined, adopted, and audited. Collaboration and coordination must exist to tell the story of the data from all stakeholder perspectives to define the policies, procedures, and practices, including regular auditing of such routines. People, processes, and technology are key to information management and event preparedness.

Credit Given for Showing Your Work

The courts are not out to get anyone, but rather look for a reasonable, well documented, thought out, and consistent approach to information governance. It is very similar to math
class in grade school where the teacher always wanted to see one’s work demonstrated, or at least have an idea of the level of logic a student used to answer a question. This can help justify when questioned whether an approach to legal compliance was at least reasonable. Credit may be given even though the resulting answer may have been unsatisfactory, or if a good faith effort was used to manage and produce data.

Conversely, if an organization doesn’t have policies and plans in place it risks exorbitant costs associated with additional technology and personnel needed to store unmanaged data, as well as heightened risks of compliance and regulatory violations and court-imposed sanctions.

Planning and readiness for litigation or investigation is another piece of the information governance puzzle, which is much like any business continuity and disaster recovery plans, with an understanding of data, where it is located, how data is managed, event response, and regular testing of processes and procedures for when an event occurs. Health information managers carry the responsibility to ensure that the data being managed maintains its integrity during a litigation or investigatory event.

David Kearney (DKearney@cohenlaw.com) is director of technology services at Cohen & Grigsby, based in Pittsburgh, PA.

This article was first published in the Journal of AHIMA February 2014 issue and is reprinted here with permission.  For more information about the Journal of AHIMA, visit their website at http://journal.ahima.org/ and the AHIMA website at http://www.ahima.org

Copyright © 2014 American Health Information Management Association

http://www.ahimajournal-digital.com/ahimajournal/february_2014

January 31, 2014

Client Value with Project Management and Efficiency Practices

Filed under: LPM,Management,Project Management — David J. Kearney @ 8:18 am

Client Value with Project Management and Efficiency Practices

The past few years have brought unprecedented change to the legal services industry and even the smallest of legal service providers are not immune to these changes.  The challenges that lawyers and firms are now grappling with are those never experienced in the industry.  The need for lawyers, law firms, and other providers of legal services to provide client-based value during any and all engagements has become a client expectation, with clients in many cases understanding their legal, resource, and cost needs like never before.  Providers of legal services need to embrace, or at least be prepared for, alternative ways of providing services and pricing for those services differently than how the majority of work has been handled in the past.  What has sustained providers of legal services in the past will not be the same to what sustains them in the future.

There are many factors beyond bottom-line pricing that clients now expect to understand.  Clients do have an expectation of cost management/cost containment, but also how a matter is staffed, the tasks involved in a matter, and alternative recommendations for providing the required services.  Providers of legal services need to be able provide alternatives to service delivery, which may include creative pricing models and even outsourcing some of the tasks.  In order to meet client expectations, a granular understanding of matters and associated costs are a must.  Scoping a matter correctly at the onset of an engagement is one of the key components to accurately agreeing upon what work is needed and what that work will “look like” when completed.  Once a scope of work is agreed to, clients expect  to know what risks may arise during a matter, what risks are most likely, and what impact those risks have to the scope of work.  Risk management is an area that needs to be a part of any engagement, so any risks that materialize are a part of the overall risk management plan and corrective action is no surprise.  Communication is another critical component of an engagement.  A communication plan and vehicle needs to be determined, so both the provider of legal services and the client knows how a matter is advancing when compared to the original scope of work.  Clients want to know the status of their matter(s) without necessarily having to inquire.  Counsel needs to provide threshold communications of resourced used, estimates to completion, and variances from original estimates on a regular basis.  Clients don’t want to be surprised by unexpected occurrences, bills, and task durations.

There is an opportunity for providers of legal services to truly reach beyond traditional hourly rates for, at least, some services driving efficiency and value and also providing a stronger relationship between counsel and clients.

Value needs to be identified by and for each client, such as efficiency, predicable processes, pricing, the services being delivered, and other items that the client sees as value.  To address what the client deems as being of value, legal service providers must utilize tools that help drive improvements in the business processes.  Tools are not exclusively software applications, but part of an overall strategy that includes matter management practices within the context of providing legal services.  Traditional project management techniques can be mapped directly to the practice of law to provide a more methodical process to matters including thoroughly scoping a matter, time needed on a matter, the costs of a matter/improved budget estimating, its work breakdown into tasks, human resource allocation, communication management, and risk management.  Project management practices applied to the practice of law, also known as Legal Project Management, is a way of enhancing the value to a legal engagement.

Project management practices are in no way a static set of sequential steps that can’t be elaborated upon, but a flexible way to help ensure that the provider of legal services can manage the matter as it evolves.  Legal project management can be implemented in a very disciplined and thorough manner and also in a customized way.  It can be implemented to take advantage of developing complete scopes of work, applying tools to manage risk, monitoring and controlling of a matter’s progress, and to develop and manage a communications plan.  Once the key components of project management are implemented, greater rigor can be applied to managing and tracking of tasks during a matter utilizing tools, such as a Work Breakdown Structure; estimating methodologies, and financial forecasting analysis.

Project management, continuous improvement, quality management, process  improvement, and efficiency methods are not new concepts, but these practices applied to legal services will be a large part of how legal services are priced, managed, and delivered.  There is no one-size-fits-all solution for providing client value, but  building transparency, cost predictability, efficiency, risk management, and communications into an engagement will undoubtedly resonate with clients of legal services

June 25, 2013

E-Discovery Education Options Revealed

Filed under: e-Discovery,Litigation Support,Management,Project Management — David J. Kearney @ 12:50 am

Finding and understanding e-discovery education and education providers can be a daunting task. There are many options delivered by different organizations, both free and for a fee, with a variety of classroom, online and conference-style forums. There are also vendor-specific and vendor-neutral programs, and those with certification examinations as part of their curriculum.

 

When looking at options to enhance your skills, you will first want to take into account your skill set, experience level and overall objectives. Then you’ll want to research which organization’s offerings are best suited to your goals and career path. Although there are probably a few resources missing from this list, we’ve got you covered on the research.

 

Organization of Legal Professionals (OLP)

http://www.theolp.org

The Organization of Legal Professionals offers educational content, various classes, certificate programs and certification exams. Members gain access to exclusive content and discounts on OLP webinars and other materials. In addition to OLP’s strong e-discovery and litigation support curriculum, they offer additional educational opportunities in other legal-related areas. Classes and webinars are conducted in an interactive Web-enabled environment that allows students to interact with the instructor and view the instructional materials. There are educational options for beginning, advanced and expert-level students. The OLP Advisory Board and Board of Directors are made up of an impressive roster of attorneys, consultants and technologists.

 

LitWorks

http://litworks.net

LitWorks is an educational organization owned by DTI and was the first training company dedicated to developing and sharing best practices in the litigation support and e-discovery industry. It provides classroom training at various LitWorks facilities or onsite at a location of your choice. Various education and certification tracks are available, such as Certified Litigation Support Professional Training, Certified Litigation Support Project Manager Training and Certified E-Discovery Specialist Training.

 

E-Discovery Team Training

http://www.e-discoveryteamtraining.com

E-Discovery Team Training is an educational program designed and taught by Ralph Losey, partner and national e-discovery counsel for Jackson Lewis, LLP. Ralph teaches e-discovery and advanced e-discovery at the University of Florida College of Law, is a member and lecturer for The Sedona Conference, and has written on e-discovery topics. The E-Discovery Team Training was designed for Professor Losey’s law students and provides in-depth training. The initial few classes are free, so you can get an understanding of the overall approach and style of Ralph’s instruction. E-Discovery Team Training also includes a final examination option that tests your e-discovery proficiency.

 

The Association of Certified E-Discovery Specialists (ACEDS)

http://www.aceds.org

This organization welcomes everyone with an interest in the legal profession, specifically in civil litigation and electronic discovery, and it isn’t just for “certified” e-discovery specialists. ACEDS offers educational materials, member access to exclusive content, an intense examination process to become certified as an e-discovery specialist, and an annual conference with an exhibition of leading e-discovery vendors/service providers and expert panels covering hot topics in e-discovery. ACEDS has also launched ACEDS University, which has created significant educational materials to help give students a very strong foundation in e-discovery. This interactive, online, self-paced course teaches the basics of e-discovery across the Electronic Discovery Reference Model. It is designed professionally and gives students the ability to gauge their overall understanding of each chapter. The ACEDS Advisory Board includes prominent attorneys, technology experts and other notable industry professionals to help ensure a high-quality, well-rounded organization and program.

 

ESIBytes and Friends of E-Discovery

http://www.esibytes.com

http://www.friendsofediscovery.com

ESIBytes was founded and Friends of E-Discovery co-founded by Karl Schieneman. Both are free resources for e-discovery knowledge. Karl has practiced as an attorney and a leader in e-discovery with a wealth of knowledge and experience and a great network of professionals who are happy to share information for a cost everyone can afford … free. ESIBytes offers podcasts that enable leaders in the field to share their e-discovery theories for free. ESIBytes makes it easier to listen to ideas on e-discovery, identifies and makes accessible national e-discovery experts, and provides a forum to find regional e-discovery experts who are also thought leaders. The goal of Friends of E-Discovery is to share ideas and problems among friends who are all interested in learning more about e-discovery. Chapters exist in Pennsylvania, Ohio, Minnesota, Indiana and Tennessee.

 

Georgetown Law: The Advanced eDiscovery Institute

http://www.law.georgetown.edu/continuing-legal-education/programs/cle/ediscovery-institute

Now in its tenth year, this institute has gained a reputation among judges, practitioners and vendors as running one of the leading e-discovery conferences. The two-day conference provides attendees the opportunity to learn at an advanced level from leading e-discovery practitioners and academics, and it also allows attendees to create their own curriculum from the general sessions and numerous breakout sessions.

 

Georgetown Law: The eDiscovery Training Academy

http://www.law.georgetown.edu/continuing-legal-education/programs/cle/ediscovery-training-academy

Georgetown Law’s week-long program gives students a total immersion in the subject of e-discovery. The academy has been designed to be a challenging experience, leading to a comprehensive understanding of the discipline. It is an intense program and gives students access to judges, experts and practitioners.

 

International Legal Technology Association (ILTA)

http://www.iltanet.org

ILTA is a membership-driven organization that hosts annual conferences, local and regional meetings, webinars, and podcasts. They also publish numerous magazines, white papers and surveys each year. As an ILTA volunteer City Representative in Pittsburgh, I have found one of the best benefits of ILTA is that your firm/ organization is an ILTA member, then you are an ILTA member. Find out if you are a member, and take advantage of ILTA. Even if your organization is not a member, take advantage of attending free locally sponsored ILTA meetings on e-discovery. Many cities have local volunteer city representatives that host meetings and discuss relevant technology, legal topics and best practices related to e-discovery. There’s also a peer group focused on delivering quality educational content related to litigation and practice support. This year’s conference, ILTA 2013: The Catalyst, is a four-day educational conference with over 200 peer-developed educational sessions, ample networking opportunities and more than 200 exhibiting vendors … including those related to litigation support and e-discovery.

 

LegalTech

http://www.legaltechshow.com

LegalTech is a biannual legal technology event, with one event on the East Coast and one on the West Coast. These events offer law firms and legal departments the ability to stay atop the evolving legal industry and improve their law practice management. LegalTech provides ways to earn CLE credits, learn about the newest advances in technology and network with industry leaders. LegalTech spans multiple days, includes a multitude of legal software vendors and service providers, and has an e-discovery education track that includes hot topics discussed by experts in e-discovery, litigation support and the law.

 

The Project Management Institute (PMI)

http://www.pmi.org

Although not exclusively related to the legal or e-discovery profession, the Project Management Institute has much to offer. Project management practices can improve litigation and e-discovery projects and can be a perfect fit for legal project management implementation in a law firm or corporate law department. With recent worldwide economic events and in-house counsel demanding a more methodical, transparent and collaborative approach to managing matters by outside counsel, the legal profession can certainly benefit from a standardized and structured approach to project/matter management. PMI is one of the world’s largest not-for-profit membership associations for the project management profession, with more than 650,000 members and credential holders in more than 185 countries. PMI has numerous project management certifications available, such as the Certified Associate in Project Management (CAPM), Project Management Professional (PMP) and Risk Management Professional (RMP). More specific to the legal field, PMI has a Legal Project Management Community of Practice that is geared toward the legal industry and generates newsletters, blogs, webinars and other educational materials. PMI also has many local chapters that are engaged in the community and host regularly scheduled events.

 

The Sedona Conference

https://thesedonaconference.org

The Sedona Conference is a nonprofit research and educational organization, founded in 1997 by Richard G. Braman. Contributors discuss how the law should move forward on issues in the areas of antitrust law, complex litigation and intellectual property rights. Working groups produce principles, best practices and guidelines for these specific areas of law. The amendments to the Federal Rules of Civil Procedure that include the rules on electronically stored information were based on the Sedona Conference’s Sedona Principles. Get acquainted with the publications the conference generates on e-discovery and civil litigation. The Sedona Conference also has a membership program for those interested in supporting the conference’s mission and interacting with others in the areas of antitrust law, complex litigation and intellectual property rights.

 

Electronic Discovery Reference Model

http://www.edrm.net

First launched in 2005 and released publicly in 2006, the EDRM was developed by a group facilitated by George Socha and Tom Gelbmann to provide a standardized approach to e-discovery-related activities. The model helps visually depict the movement of e-discovery components in phases. The EDRM contains nine phases of the e-discovery process that everyone working in the field should be fairly familiar with. Accessing the knowledge of the EDRM is free and a very worthwhile model to fully understand — it is the foundation of nearly every component of e-discovery. EDRM also has designed a computer-assisted review reference model, a talent task matrix, a model code of conduct and the information governance reference model. Corporate counsel, corporate IT managers, law firms, software providers, consultants and service bureaus can join EDRM to share best practices for managing e-discovery processes. From the initial management of electronically stored information to the presentation of that information, followers of EDRM can offer insights to others and help improve e-discovery processes and the industry.

 

Education at Every Level

 

Keep your eyes and ears open for free live and on-demand education sponsored or led by leaders in the industry, such as FTI, Kroll OnTrack and Fios. There are free e-discovery and legal-related podcasts that can be downloaded easily via iTunes and The Legal Talk Network and listened to anywhere. You can also find blogs by e-discovery practitioners. If you are starting out in the industry or you’re a seasoned lawyer or legal professional who needs a stronger foundational knowledge of e-discovery practices and principles, take it slowly … register for some free webinars, download podcasts and even sign up for a basic OLP or ACEDS membership. A basic membership to either organization, which are both fairly reasonable in price, is a good way to get a feel for their particular approach to e-discovery education. If you have some foundational knowledge and experience in the field, explore some of the other higher-level and more intense programs, such as E-Discovery Team Training, Georgetown’s

 

Advanced eDiscovery Institute and the certification programs offered by ACEDS, the OLP and LitWorks. Also, take some time to network and find out who your local experts are in the industry; you might find e-discovery educational opportunities are just down the street. Improving your skill set and keeping up with the changes in the law, technology, best practices and new approaches to managing discovery is a worthwhile investment for you, your employer and potential employers. Regardless of whether education is self-funded, employer-funded or a blend of both, remember: you are worth the investment!

 

David Kearney is the Director of Technology Services at Cohen & Grigsby, P.C. He is a technology and e-discovery professional who has implemented, managed and supported a litigation review platform for a global law firm and worked for a service provider/vendor of legal solutions. David has led classes roundtable discussions on e-discovery and related technologies.

 

He can be contacted at dkearney@cohenlaw.com or http://www.linkedin.com/in/davidjkearney.

 

Get Certified: E-Discovery Education Options Revealed

 

This article was first published in ILTA’s June 2013 issue of Peer to Peer titled “Emerging Careers” and is reprinted here with permission. For more information about ILTA, visit their website at http://www.iltanet.org.

 

Original article:

http://read.uberflip.com/i/139453/6

http://www.iltanet.org/MainMenuCategory/Publications/Peer-to-Peer

Peer to Peer Magazine – June 2013

May 17, 2013

e-Discovery IN, e-Discovery OUT, or Somewhere IN-BETWEEN…

Filed under: e-Discovery,Litigation Support,Management,Project Management,Technology — David J. Kearney @ 2:12 pm

e-Discovery IN, e-Discovery OUT, or Somewhere IN-BETWEEN…

 With the exponential increase in ESI collection sizes, the rapid changes in technology, the high expense of qualified personnel, and smaller firms with very conservative case budgets and perhaps limited resources 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 plenty of banter between highly regarded e-Discovery practitioners, including those from law firms as well as those within service providers arguing which approach is best.  There is no one-size-fits-all approach.  Firms need to take an individualized approach when designing e-Discovery processes, workflow, and technology solutions 

Organizations need to face the possibility that they will be more closely examined & scrutinized on how their data management practices and e-Discovery processes and procedures are designed and followed.  With many options available, now is the time to examine or re-examine how things are currently being done.

Most of us have seen either fits and starts, or the back-and-forth between outsourcing certain services and business processes within law firms, however, deciding on an e-Discovery model is not an easy one to make. Many factors need to be considered and areas understood before committing to any one departmental business model.  You must understand where you are and what make sense for you and your firm.

Thinking along the lines of a business plan may be a very good starting point that includes projections, expectations, risk management, profit/loss/break-even, scheduling, capacity handling, workflow, and personnel.  E-Discovery and aspects of Litigation Support is a business process and should be managed, operated, and supported as one. 

 Culture

Culture has a lot to do with how a firm operates…from a management, to a support, to an operational perspective, to what the firm decides to focus its resources on, such as technology spend, people spend, and other investments.  Any kind of organizational change will bring some levels of discomfort, so knowing the culture will help determine the direction and who in the firm’s leadership might provide internal guidance and support.

Regardless of approach, firms need to establish or re-establish a foundation as to how they will handle and manage e-Discovery and, to a greater extent, support litigation.  Litigation Support/e-Discovery needs are not “run of the mill”…the technology is different, the requirements are non-standard, and the urgency is heightened over most other practices.  As you proceed with an analysis of e-Discovery models, you may want to include the following questions:

  • Will the firm culture support the commitment needed to build, run, and manage an e-Discovery/Litigation Support organization in-house?
  • Is the firm in a position to invest significantly in an area that is not a core competency?
  • How will the firm tolerate the learning curve and operational shift that will inevitably be encountered when building an internal department or outsourcing the function?
  • Is there commitment from firm management, practice groups, and information technology (especially when building the technology infrastructure in-house)?

 Organizational Maturity

If the firm is mature, there is probably a well-defined understanding of technology, people, and overall processes related to the aspects of supporting litigation.  If not, the process to determine a more focused strategy might help, including how services are delivered and sustained.

An example to consider when evaluating an e-Discovery strategy is that there are times when additional help is needed by using additional technology, more personnel, or outsourcing the entire project to a 3rd party that has the bandwidth to handle the complexities.  Sometimes due to a lack of understanding projects must be or are forced to be managed in-house with limited resources to the detriment of the client, firm, and case.  Consider the following questions when analyzing the overall firm’s maturity regarding e-Discovery: 

  • Are there documented intake procedures?
  • Is there a size limit, monetary value, or deadline threshold that dictates when and how an e-Discovery project is handled?
  • Is data chain of custody documented?
  • Is evidence physically secured?
  • Is having an in-house e-Discovery service a strategic advantage to the firm or section?
  • 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 truly competitive with service providers.

Technology

Providing e-Discovery/Litigation Support services typically requires a significant investment over and above typical technology infrastructure.  Often times, bandwidth, desktop PCs, servers, and processing devices have greater specifications than might be typical for an organization’s IT department & user-base.  Frequently, software needs include review, processing, and culling tools.  Litigation discovery data can increase exponentially, without too much advanced warning, so scalability also needs to be part of the infrastructure plan

Many technology departments are already operating lean, so having a technology team/I.T. Department responsible for handling the demands of litigation and all of the moving parts may be very difficult.  Analyze the technology aspects of an e-Discovery model by asking the following:

  • What kind of technical infrastructure will the firm support?
  • Is the current network bandwidth sufficient to handle the network traffic between locations?
  • Is the solution scalable?
  • How scalable is the software?
  • What software application(s) will the firm support?
  • 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?
  • What tools are needed for the firm’s common cases, such as processing, culling, clustering, and technology assisted review?

 Disk space, servers, backup technology, disaster recovery locations also need to support the amount of data that you may house.  The technology infrastructure costs to support a robust application suite and usage demands requires a significant monetary investment.

 

 Data Security

If non-firm personnel need access to the case data (co-counsel, experts, contract attorneys), you can certainly export the data, databases, images, etc. for the 3rd parties to import into their platform, but in this instance, there would be various versions of the data making it nearly impossible to keep the various versions of the data synchronized.  So, it certainly makes sense (assuming this is agreed to by all parties) to give outside organizations access to the same data.  Many applications do have the ability to granularly assign levels of security so only data that you want certain parties to view or edit can be assigned.

If data is hosted in-house on a platform that can be accessed by external sources:

  • Does your firm have sufficient security protocols in place to ensure that data is secure? 
  • Is the data secured among other different case related data? 
  • Is the security protocol documented?  Can it withstand an audit?  Can it withstand an attempted security event?

 People

As it has been said, good people are the heart of any great organization.  If a firm is considering building some level of expertise in-house, the following questions need to thoroughly vetted with regards to the proper needs assessment, acquisition, selection, on-boarding, and retention of personnel. 

  • What positions within the firm will be designated for Litigation Support/e Discovery?
  • What department will the position(s) report? IT, Litigation, Practice Support, KM, etc.?
  • 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, more technical, 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)?
  • How will non-business hours support be addressed? 
  • How will PTO/vacation coverage be addressed?
  • How will quality control be handled (1 person can’t effectively Q.C. their own work)?
  • Is there a defined Service Level Agreement?

 Workflow and Process:

The following are workflow components that need to be thought through and decided upon:

Intake – Does the litigation and litigation support team know the details of an incoming case?  New matter tracking and alerts based on certain thresholds can be very helpful, such as value of case, amount of discovery anticipated, type of case, what attorneys/partners have been assigned to the case…originating attorney, etc.

Consulting – What consulting is available, internal or external, with regards to best practices & approaches to preservation, collection, pre-culling, processing, review and production?  Who it is done by?

Solution Evaluation & Implementation – How are various solutions evaluated for each matter/case?  How are they weighted?  Is it the vendor that brings you candy bars?

Project Management – Are there standard PM practices in place?  How are projects initiated, planned, executed, monitored & controlled, and finally closed.  Is all project knowledge managed in a silo?  Is this knowledge/lessons learned held tightly with one individual?  Using only one common project management framework isn’t necessarily the answer, but adopting a project management toolkit that captures the project life cycle is always a good approach

Tracking of Requests – Are requests tracked to import data, produce documents, burn CDs, alter the database schema, endorse discovery data?   Or, is it just walking down the hall and giving a disk to an individual and saying “deal with this”.  Tracking of requests are also a very good way to document Chain of Custody.

Tracking of Discovery – Is there a protocol as to what happens with discovery when received and when it is handled?  Where does it go?

Quality Control – Are there Quality Control practices in place and a way to address any errors, whether it be for image conversion or inaccessible documents (legacy, password protected, proprietary), etc.

Productions – Although litigation sometimes happens quicker than the speed of light, does your organization have the manpower and production capabilities to handle aggressive deadlines?

Archival, Closure, Destruction – Is there a closure process implemented when a case settles, a practice to archival case data for future use, a practice to destroy or return data to the client?  If you are a law firm are you following the data remediation/retention policies of you client with regards to the discovery in your possession? 

Ultimately, the firm needs to be protected by implementing repeatable and sound processes.  Firms may not be equipped, or even interested, in designing and supporting a robust platform that is needed for maintaining internal resources for parts or all of the components of the e-Discovery process.

In some instances it may 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.  In other instances it may make sense to only outsource some components of the e-Discovery process. 

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.

There is no perfect solution, either internally or outsourced, so keep in mind that no one solution is going to be a panacea over the other, but it is how the design of the solution is modeled and maintained that will make or break the initiative.

March 27, 2013

ACEDS Conference Testimonial Video

Filed under: e-Discovery,Litigation Support,Management,Project Management — David J. Kearney @ 3:53 pm

ACEDS Conference Testimonial Video

Conducted in its trademark interactive style, the ACEDS Conference gives attendees powerful training, practical guidance and actionable intelligence from top experts. Beachside networking events gather colleagues, leading e-discovery professionals, and suppliers of the best products and services in one unique setting.

LINK:  https://app.box.com/s/c0n19ajm89hlr1dt81uz

October 23, 2012

My First Marathon, Facing Failure & The White Flag

Filed under: Project Management,Running — David J. Kearney @ 5:22 pm

All-in-all my training plan to run the Columbus Marathon on October 21, 2012, was pretty sound and I was tolerating the long runs well. I was slightly ahead of the traditional schedule with a little wiggle room in case of injury or unexpected life events that may have prohibited a weekend long run. After reaching mile 19 in my training I began feeling a little bit of knee pain, but I really wasn’t too alarmed, in fact I planned for this (see my previous marathon planning post). Sure enough after some rest and easing up on my shorter daily runs, I was back and running 20 miles in a little over 4 hours. Again, after the 20 mile run I began feeling even more unfamiliar pain in my knees, hips, chins, and ankles. Again, no major worries…I figured I’d pull back a bit and let my body heal. Since I was basically a novice runner having only completed a half-marathon, I thought I would slow my pace up and just relax and continue to plan to complete the marathon. I figured if I wasn’t meant to run that I would be given a sign. Facing failure wasn’t really in the plan, since my goal was to finish 26.2 miles, not to match or beat any time.

The sign came, but certainly not in a way I expected or planned for. About a week-and-a-half prior to the marathon I started feeling like I was coming down with a cold. Again, not a big deal in my mind…a few days and I’d be feeling better. We’ll a few days later I was progressively getting worse and decided to Throw in the Towel 5 days before the race. The pain I was feeling in my throat was unbearable…a feeling of swallowing razor blades every time I swallowed and eating was excruciating, speaking almost impossible. On the day that I was to be running 26.2 miles I was diagnosed with severe Strep Throat, to the point where my throat was beginning to close up due to the infection and swelling. There was some talk about that if it gets any worse that I would need to have an abscess drained in my throat.

Now that I am beginning the healing process, I am reflecting on the lessons learned about marathons, marathon training, and testing one’s limits. Here are a handful of my thoughts:

1. Evening though you can’t plan for everything, thorough planning is a must.
2. Marathon training does involve much more time than just running time. After runs of 4+ hours, the rest of the day is pretty much shot. When running 10, 15, 20 miles, the energy used really impacts activity for the rest of the day.
3. Running long distances is more mental than physical. I heard it said before, but until you need to keep yourself mentally stimulated for hours while running, it is hard to image that keeping your mind going is more difficult than keeping your body going.
4. Getting going is hardest part…or as I heard before “the first mile is the hardest”. There were many early mornings that dragging myself out on the road at 5:00 AM was very difficult, but once I got going, it became easier.
5. You must have support of your family.
6. You must learn to consume calories consistently during long runs.
7. Training for a marathon needs to almost be exclusive over any other life activities. I think I had too much going on with my day job, family activities, career activities, and other life stuff.
8. If one does not push themself to an extreme, at least on occasion, you may never move forward.

At this moment, I have hung up my shoes to let my body and mind heal since starting this marathon journey. Although I don’t have the bragging rights to say that I completed a marathon and overall failure of the goal, I think I gained most of the benefits…better health, better acknowledgement of who I am, knowing I can push through thoughts of wanting not to run for 3 – 4 + hours, and knowing I can push myself to physical & mental limits.

Time for a much needed break…

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