David J. Kearney

February 1, 2014

How to Prepare the Record for an E-Discovery Request

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

March 14, 2013

E-Discovery and Electronic Records: Healthcare Resource Guide to e-Discovery and Electronic Records

Filed under: e-Discovery,Litigation Support,Management — davidjkearney @ 9:47 am

Book Review: E-Discovery and Electronic Records

By David Kearney

Law Technology News

March 13, 2013

E-Discovery and Electronic Records book cover
Image: American Health Information Management

With electronic records becoming standard and government audits and litigation being common in the healthcare industry, two disciplines are merging. The healthcare industry, with its own unique set of regulations and industry standards such as the Health Insurance Portability and Accountability Act and the American Health Information Management Association, and e-discovery.

E-Discovery and Electronic Records: Healthcare Resource Guide to e-Discovery and Electronic Records, by Kimberly Baldwin-Stried Reich, Katherine Ball, Michelle Dougherty, and Ronald Hedges, merges e-discovery with the requirements of healthcare. With Electronic Health Records replacing paper records, e-discovery rules as prescribed in the Federal Rules of Civil Procedure will apply to healthcare organizations under government investigation or litigation.

The Guide does a thorough job of describing the e-discovery process for the healthcare professional or clinician, information technology professional, and risk management and corporate compliance departments. Also provided is an outstanding foundation of the healthcare industry for third parties that work closely with healthcare providers, such as those working in the legal industry providing counsel to primary healthcare organizations. This guide is much more than an overview of the FRCP and HIPAA; it is a bible to guide healthcare professionals through the processes of establishing a defensibly sound e-discovery and electronic records program, with policies and procedures, to respond to a request for “any/all electronic information” relevant to a legal or regulatory matter.

The Guide emphasizes that healthcare organizations must see their information as assets to be managed and protected and describes strategies, standards, and best practices that need to be discussed, adopted, and supported for managing patient and organizational information. Healthcare organizations risk losing time and money searching for records, evidence may be lost that supports the organization’s position in business negotiation or litigation, and the risk of court sanctions exists if an approach isn’t taken to properly manage Electronic Health Records. The Guide includes the following areas must be understood when developing protocols around healthcare data:

• How healthcare organizations must define their Electronic Health Record.

• How to develop an electronic records system in healthcare.

• Every healthcare provider and third-party service provider that stores or accesses an individual’s medical information is impacted.

• How Electronic Health Record Systems integrate with labs, pharmacy, and radiology applications.

• How to create and follow an effective and defensible approach to discovery.

• How to develop a litigation response plan.

When the topic of ESI arises, the discussion usually begins with the FRCP and the statutes or rules regarding electronic discovery. An organization is under a duty to preserve information under federal and state law when it knowns, or reasonably should know, it is in possession of information relevant to legal action. This guide thoroughly explains the aspects of handling and managing healthcare data with electronic discovery rules, including:

• The legal process.

• The Federal Rules of Civil Procedure.

• The Federal Rule of Evidence.

• Uniform Rules Relating to the Discovery of Electronically Stored Information.

• The regulations and governance of data in healthcare

• The challenges to the traditional practices of how a healthcare organization’s legal counsel and health information managers respond to litigation.

• The preparation needed in healthcare regarding litigation and litigation triggers.

• The litigation readiness strategies of data admissibility, authenticity, attestation, and integrity.

The Guide closes with invaluable appendices to supplement the five core chapters providing thorough guidelines, advice, and charts to develope an e-discovery protocol and electronic records system in healthcare. The 200-plus page glossary and glossary of websites is also a great place to find information on healthcare and legal terms, legislative acts, programs, organizations, standards, and related technology.

I found E-Discovery and Electronic Records to be an exceptional guide to applying e-discovery in the healthcare industry. I appreciate the combined complexities of both disciplines much more and I am confident that I can now apply healthcare industry practices to e-discovery with the solid understanding gained from this guide.

E-Discovery and Electronic Records is a go-to guide for the end-to-end understanding, design, and support of electronic records in healthcare in response to litigation and best practices for healthcare records management.

::::PRODUCT INFORMATION::::
Title: Discovery and Electronic Records: Healthcare Resource Guide to e-Discovery and Electronic Records
Authors: Kimberly Baldwin-Stried Reich, Katherine Ball, Michelle Dougherty and Ronald Hedges
Paperback: 688 pages (May 7, 2012)
Publisher: American Health Information Management
Language: English
ISBN-10: 158426229X
ISBN-13: 978-1584262299
Product Dimensions (inches): 8.8 x 6 x 1.4
Shipping Weight: 2 pounds

David Kearney is Director of Technology Services at Cohen & Grigsby, based in Pittsburgh, Pa. E-mail: DKearney@cohenlaw.com.

Copyright 2013. ALM Media Properties, LLC. All rights reserved.

Reprinted with permission from Law Technology News. Further Duplication prohibited.

February 26, 2013

One Small Step for Cost-Shifting, One Giant Leap for Ediscovery

Filed under: e-Discovery,Litigation Support — davidjkearney @ 8:36 pm

One Small Step for Cost-Shifting, One Giant Leap for Ediscovery

Each ediscovery development pushes the legal system farther into the digital frontier, and cost-shifting is the latest topic at the helm. As every lawyer in America knows, the default rule of attorneys’ fees is that each party must bear all of its own litigation costs regardless of the outcome of the case. But, in our expanding world of big data, and as judges begin to confront the increasing expense of producing electronically stored information (ESI), that rule is necessarily evolving towards a new paradigm based on cost-shifting.

To understand why cost-shifting has become an important topic in the legal world requires a bit of background. In today’s digital landscape, litigants must cope with seemingly limitless amounts of data during the discovery process, which can quickly dry up even the biggest of legal war chests.  One of the more visible and important decisions that helped begin to change the direction of the burden of costs for discovery was Zubulake. In that case, the court used its discretion, supported by Rule 26(c), to have the requesting party pay – at least in part – the cost of the discovery as it resulted in some level of “undue burden or expense” for the defendants.

According to research think tank IDC, over 99% of all documents are now created and stored electronically, and the ever-exploding data volume makes it more difficult and expensive for parties to manage massive amounts of data in a way that guarantees against the risk of sanctions. When hit with a complex discovery request, many corporations and law firms fall down the proverbial rabbit hole and find they simply cannot effectively manage large volumes of data. It is no longer uncommon for the amount in controversy to be trumped by ediscovery costs. That fact, on top of the massive burden associated with conducting ediscovery in a class action suit, recently compelled one Pennsylvania federal judge to defy convention by moving towards a more equitable allocation of discovery costs.

Vaughn v. LA Fitness International, a case of first impression nationally, explored the allocation of discovery costs before class certification. On this unique motion to compel, U.S. District Judge Michael Baylson of the Eastern District of Pennsylvania focused on the fiscal realities inherent in class action matters, stating that a class action “dramatically increases the economic pressure on the defendant.” The Judge further elaborated on the economic aspects of this particular case, taking special note of the asymmetry in the discovery process. He highlighted the fact that while some parties have relatively few electronic documents to handle, other parties – such as LA Fitness – must handle millions of electronic documents in a single discovery dispute, which significantly drives up discovery costs. When given a discovery request to obtain those many documents, the discovery process quickly becomes lopsided and often unfairly burdensome to the producing party.

Thus, upon the plaintiff’s motion to compel, and given the possibility for class certification and the extensive amount of material already produced by the defendant LA Fitness in discovery, Judge Baylson ruled that the cost of additional discovery would shift to the plaintiffs. Noting that the plaintiffs had plentiful financial resources at their disposal, the Judge wrote, “If the plaintiffs have confidence in their contention that the court should certify the class, then the plaintiffs should have no objection to making an investment [in the defendant’s discovery costs]”—a contention that flies in the face of the default rule of attorneys’ fees and traditional discovery practices. Moreover, the Judge indicated that “Where the burden of discovery expense is almost entirely on the defendant, principally because the plaintiffs seek class certification, then the plaintiffs should pay for that additional discovery.” In an interesting explanation of the mechanics at play, the order indicated that the plaintiffs must make a detailed request to LA Fitness for additional documents prior to motioning for class certification; then, LA Fitness will respond with cost estimates, to which the plaintiffs can reply as to whether they are willing to pay those costs.

The Vaughn case is certainly an interesting outlier. Until the burdens of ediscovery came along, courts have seldom taken advantage of Oppenheimer Fund v. Sanders, a 1978 case in which the U.S. Supreme Court authorized cost-shifting. Judge Baylson indeed acknowledged that it is because of increasing volumes of ESI and involved in discovery disputes, as well as the accompanying expense, that courts have taken a closer look at the issue. The Federal Rules, amended in 2006 specifically to address ediscovery, bolster this idea that the growth of ediscovery is a powerful engine behind the drive toward cost-shifting. Federal Rule of Civil Procedure 26 allows a judge to forego the production of responsive ESI if it is demonstrated that requested information is “not reasonably accessible because of undue burden or cost.”

More specifically, with the proportionality standard of Rule 26(b)(2)(C), the court balances “the burden or expense of the proposed discovery” with “its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Courts have wrestled with what constitutes “undue burden or cost,” and how to strike this balance. However, in the ediscovery era, an increasing number of courts, as in Vaughn, have sought to strike this balance by adopting the cost-shifting approach. While the fact alone that the defendant possesses more ESI will not automatically constitute cost-shifting, courts consider various factors in making the cost-shifting decision, such as fairness, the disparity of burden, budgeting of costs, and the level of appropriateness.

Interestingly, the move toward cost-shifting reduces the chance that malicious parties will use the ediscovery process as a weapon. In the midst of the recent dizzying onslaught of ESI, many litigants have buried opponents under expensive discovery requests in an attempt to abuse the preservation rule, using it to turn litigation into a “gotcha” discovery game, rather than focusing on the merits of a case. This trend has not gone unnoticed by scholars. For example, the Richmond Journal of Law & Technology recently pointed out that, along with the increase in e-discovery expenses, now in the billions of dollars annually, “e-discovery has become more than merely a discovery process; it has become an alternate method of trying a case.” Thus, using cost-shifting to reduce the ability for parties to heap on discovery requests without having to pay for them works to ensure that they will not take advantage of litigation loopholes. Cost-shifting, therefore, may be positive not only for litigants, but it may also be a remedy for the recent pandemic of exploding discovery costs that currently plagues the American court system.

Amidst the uncertainty about whether a court will join the cost-shifting “revolution,” parties in a class action case that face potentially burdensome discovery requests now not only have the proportionality standard of Rule 26 at hand, but they can also point to the Vaughn case as a way to calibrate a balance in costs.  While the Vaughn cost-shifting rule certainly does not yet apply in all jurisdictions, it is a critically important case that embodies the mammoth legal evolution that ediscovery is driving today and will continue to drive. It is imperative for all litigants in all types of cases to continue to operate as if the cost-shifting analysis will not be applied, and thus make a good faith effort to produce requested documents. However, legal practitioners must be aware of the changing tide on attorneys’ fees and litigation expenses and monitor this set of rules as that evolve in their jurisdictions. Only time will tell how hard this trend will shake the foundation of the American legal system.

The authors acknowledge Alicia J. Smith, law clerk at Kroll Ontrack, for her assistance in this article.
Dianne Humes serves as an account executive for Kroll Ontrack in Delaware, New Jersey and Pennsylvania. Her focus is providing clients with expert information management strategies and solutions to optimize cost efficiencies and ensure repeatable, defensible processes.
David Kearney is a technology and e-discovery professional with more than 15 years of experience managing technical staff throughout the U.S. and recommending and implementing hardware, software and workflow solutions and more than 10 years of experience in the litigation support arena, including ediscovery and project management.

 Reprinted with permission from the February 26, 2013 issue of The Legal Intelligencer.  (c)2013 ALM Media Properties, LLC.  Further duplication without permission is prohibited.  All rights reserved.

 

October 23, 2012

My First Marathon, Facing Failure & The White Flag

Filed under: Project Management,Running — davidjkearney @ 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…

August 28, 2012

Judge Scheindlin’s Collection Case and Florida E-Discovery Amendments

Filed under: e-Discovery,Litigation Support,Management,Project Management — davidjkearney @ 5:52 pm

Judge Scheindlin’s Collection Case and Florida E-Discovery Amendments.

One of the attributes that makes for a great e-discovery lawyer is the ability to wade through the digital mire that separates preservation from collection. The ESI Report’s Michele Lange, Attorney and Director of Thought Leadership at Kroll Ontrack joins e-discovery expert David Kearney, Director of Technology Services at Cohen & Grigsby, to discuss Judge Shira Scheindlin’s recent opinion in the case, National Day Laborer Organizing Network et al. v. United States Immigration and Customs Enforcement Agency, et al.

www.linkedin.com/in/davidjkearney

 

July 31, 2012

David Kearney Awarded CEDS Certification After Passing Rigorous Examination

Filed under: e-Discovery,Litigation Support,Project Management,Technology — davidjkearney @ 11:48 am

                                                                                          

 

Press Release
For Immediate Release
July 31, 2012

 

 

 Cohen & Grigsby E-Discovery Professional is Awarded CEDS Certification After Passing Rigorous Examination

 

David Kearney of Cohen & Grigsby based in Pittsburgh, Pennsylvania is among the select maiden group of e-discovery professionals to pass the rigorous Certified E-Discovery Specialists certification examination. David has now earned the right to use the prestigious designation, CEDS, as a Certified E-Discovery Specialist.

The CEDS credential is earned by individuals who pass the rigorous four-hour examination that provides a tough and objective measure of mastery of the challenging field of e-discovery. The certification program is administered by the Association of Certified E-Discovery Specialists (ACEDS), the premier membership organization of professionals in the field worldwide. Since the exam was first offered in November 2010, professionals in the United States, Canada, the UK, South Korea, Germany and China have earned the CEDS certification.

The CEDS certification is compelling evidence that designees are competent and knowledgeable in e-discovery regardless of their professional specialization—whether they are lawyers, litigation support staff, records managers, information technology (IT) specialists, technology officials, court personnel, paralegals or consultants. The credential is an assurance to employers, colleagues and clients that the CEDS-certified professional is serious about efficiency, cost-effectiveness, and risk reduction in all phases of e-discovery.

CEDS designation is powerful evidence of specialized expertise

“I don’t know what took so long for a certification like CEDS to come along. There needed to be a strong standard of competence. The exam was rigorous and thorough. You don’t just pay money and pass the test. This helps solve my hiring problems.” said Alvin Lindsay, a partner at the international law firm, Hogan Lovells, in Miami, who chairs the ACEDS Advisory Board and is often quoted in the media in matters regarding technology and litigation and electronic evidence…

CEDS exam is offered at 560 worldwide secure testing centers
The proctored CEDS certification exam is offered at 560 secure ACEDS-Kryterion Testing Centers worldwide, including 350 in the United States and 40 in Canada. The exam was assembled over eight months by a team of 40 leading e-discovery professionals under the guidance of the ACEDS management and an independent psychometric firm, Kryterion, to ensure the CEDS exam was technically sound and legally defensible. The computer-based examination has 145 items, and CEDS candidates receive results upon completion.

In April 2011 ACEDS began offering an online, on-demand CEDS Examination Preparation Seminar at its website at ACEDS.org.

For more information on CEDS certification, including how to apply and register for the exam, contact Member Services by email at memberservices@ACEDS.org or by telephone at 786-517-2701.

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