Archive for July, 2009|Monthly archive page

Migrating from Old Applications Is the New Challenge

E-discovery is now cutting across all the legal demographics of firm size, case values and attorneys but a significant number of lawyers are still unfamiliar with the requirements and characteristics of electronic discovery. No single vendor is dominating the market and national vendors are clearly splitting the business with local shops.

More important, although well known products such as Summation and Concordance have a high market presence, they are now being pushed by the rise of Web based applications. For years, the annual AmLaw Tech Survey has shown that large firms use both Summation and Concordance but are slowly moving to web based application. My surveys of small firms over the past two years have shown a similar trend.

Why is this? Although attorneys are always cost conscious, they are now rating both vendors and products on a number of other factors besides price. In the Chicago survey I ran earlier this year for the Law Bulletin Publishing Company, twice as many respondents found the effectiveness of their software more critical than the price.

What this means is that firms big and small are likely to have at least two and as many as a dozen lit support tools. Indeed, a survey last year by American Lawyer magazine queried firms IT Directors and litigation support managers about what litigation support applications they used.  The report showed a multitude of packages in use but revealed that the Lit Support Managers use the most popular packages far less than what the IT directors report. This discrepancy was most obvious with a few products: Summation (55 percent of litigation chiefs chose it, versus 82 percent of the IT directors), Sanction (20 percent versus 32 percent), Access (19 percent versus 63 percent), and Trial Director (18 percent versus 40 percent).

 

On the other hand, the litigation chiefs report that their staffs are using more products than the IT directors give them credit for deploying. Some products mentioned by LSM’s didn’t even make an appearance on the IT chiefs list. Likewise in small firms, the LBPC survey found 11% of the respondents saying they DIDN’T KNOW what Web application they were using.

It seems clear then that communication, not only between lawyers and tech staff but even internally among tech staff, is not good. “The truth is, nothing rules the day,” says George Socha, as quoted in an ALM Research article called Litigation Dogfight  .  Old programs compete with each other as well as new applications and often do not compare favorably. The same ALM Research article quotes Thomas Barnett, special counsel at Sullivan & Cromwell and head of the firm’s electronic discovery and compliance department, as saying “In technology terms, [the search tools used by older products like Concordance and Summation] are dinosaurs,”.

What is clear however is that the challenge facing firms today is incorporating both old and new products in their strategic arsenal. With the advent of electronic documents in a variety of document types such as multi-page TIFFs, PDFs, emails, excel spreadsheets and audio files, old approach of Bates numbered single page TIFFs in flat file databases on a PC has faltered.  The paradigm that worked for 10 or 20 boxes of documents is simply too cumbersome and prohibitively expensive for cases that routinely handle hundreds of gigabytes of electronic information. 

The task for the immediate future is working with and upgrading to newer programs while keeping active cases which use the older programs running smoothly. John Turner, Senior Vice President and Chief Technology Officer of Anacomp, owner of CaseLogistix, says that “A modern platform must be able to review native documents that are not just paper equivalents, but must directly enable review of any file that is in common use in business today.’  A strategy for balancing multiple applications until those applications emerge is the real challenge facing firms and lit support departments today.

Standards Debate

There has been a lively disucssion of search standards on the EDD Update blog recently.  Atty Eric Mandel, Director of E-Discovery and Litigation Support at Zelle Hofmann in Minnepaolis, first posted about the need for more precise  scientific standards regarding search technology. Herb Roitblatt and Craig Ball both responded with objections based on the fact that the legal process is not scientific in anture and trying to establish perfect technical specifications is pointless. As Craig put it , “that dog won’t hunt.”

It seems to me that the answer lies somewhere between Erics call for standards and the responses by Craig and Herb. As Craig says , there’s no such thing as a perfect process and as Herb says, it’s ALL about the process.  In fact I made that very point right here back in February when I quoted John Martin: it’s the archer not the arrow.

And really that’s the problem to my mind. We get so lost in the technology we forget that we’re not building a space shuttle here .. or a car or even a widget. We’re searching for truth.  Try to publish a standard for that.  OK and even if we’re not looking for truth we’re dealing with a process that is different every time. Different documents, different document types, different operating systems, different users … you get the point.

To push Craigs analogy, you don’t train a dog to hunt by just teachng him to do the same thing over and over. If you’re duck hunting, he has to swim. If you’re racoon hunting he needs to know how to tree. If you’re fox hunting he has to work with other dogs. If you’re bear hunting he has to know how to talk so he can tell you he’s not THAT stupid even if you are.

But I do agree with Eric that we need to have more public debate over these issues. Otherwise the dogs are running the hunt and not the hunters.

Support Your Local Independent Consultant

More and more I’m seeing corporations turning to regional firms to handle their legal matters, especially when it comes to e-discovery. Is this a national trend? Well last week Ron Friedmann noted anecdotal evidence of GC’s ” moving work to firms with lower billing rates” and now today in Law.com comes an article on a survey from BTI Consulting reporting that large corporations were reducing their outside firms from a 2007 level of two primary law firms, 10 secondary firms and 40 other firms they sometimes use to (by 2012) two primary firms, six secondary firms and 23 other firms. (The survey was based on telephone interviews made in December 2008 and again in May of this year of 550 companies with average revenue of $26 billion and average annual legal spending of $20 million)

 More importantly BTI reported corporate counsel are also indicating a reluctance to work with firms that aren’t flexible in billing, staffing matters and communicating with the client. This increasing demand for flexibility by GC’s creates opportunities for smaller firms, and BTI research shows those companies making a definite migration to smaller firms. According to the data, companies now have fewer relationships with Am Law 100 and 200 firms — exactly what I’ve been seeing.

The curious part is that the reason is not necessarily billing rates. BTI President Michael B. Rynowecer said in the report that corporations are cutting their own legal staffs by as much as 20% and are using fewer outside law firms because their newly short-staffed corporate legal departments simply don’t have the time to manage outside firms. Ron suggests that the answer is removing costs, by which he means “lowering the demand for legal services and, for those services still required, reducing the hours required to perform them.”

It seems to me this is exactly where consulting services come into play … by helping a business analyze their workflow and determine which part of their legal work can be reduced or eliminated. Corporations need to better manage their legal services and that involves a comprehensive look a how they work, including their use of outside counsel. The best person to make that analysis is an independent consultant who has no stake in the final decision.

So  improve how you handle your litigation workflow and support your local litigation consultant at the same time.  You’ll increae efficiency, improve your bottom line and  manage your litgation better all at the same time.

Cooperation from Another Perspective

I gave a presentation yesterday at the local ARMA luncheon meeting and we discussed document retention policies and the law.  AS always, I speak in an informal manner and encourage questions so we had a good discussion among the attendees about  litigation hold strategies and how they relate to document retention policies as well as new developments in e-discovery law.

In the course of the last topic, I mentioned the Sedona Cooperation Proclamation and immediately had reactions form the attendees about the need for internal cooperation in the enterprise setting.  Several attendees had read the recent New York Law Journal article by Adam Rosman which posited that the major problem with such policies is in the implementation and not the drafting.  And in fact, when I asked how many attendees had a policy, 2/3 answered affirmatively but more than half of them admitted they had problems with implementation and user compliance, which was directly in line with the 2006 study by NextPage on this exact subject. 

What was not so predictable was the reason the attendees gave for this problem. Virtually all said it was due to a lack of cooperation and communication among records managers, IT staff and legal departments.  One person specifically said ” I wish we had a Cooperation Proclamation to make IT and legal staff talk to each other”.  The sentiment was shared by all the corporate  people in attendance,. The opinion was the document  records managers fashion retention polices that neither legal nor IT staff felt were important, often because those two departments don’t sit down and talk with each other about how to implement policies.  In fact, after hearing about several of the court decisions I discussed, one manager asked ” What is MY liability if I fashion a policy which is never enacted by the Legal Department?”

Now the implications here seem staggering.  How can we expect a corporate client to convey to their outside counsel the information necessary to fashion the documentation for a meet and confer on electronic records when their isn’t enough internal cooperation to have fashioned and implemented ESI policies? And is the lack of cooperation among records managers, IT staff and legal departments really that prevalent?

I’m reaching out to other people in the market to see what they say   …. I’m curious as to what other people have experienced in this area.  If you have comments please post them here or email directly.