Archive for September, 2009|Monthly archive page

Top Ten Tips for E-Discovery

Yesterday morning I spoke on a webinar for The Masters Conference called “Top 10 Tips for Working with E-Discovery” in which I shared the 10 tips I give to clients at our first meeting.  The idea is give a better understanding of e-discovery and basic obligations under the current state and federal rules.  Hopefully this begins my consultative engagement with the first step towards best practices e-discovery and a better discovery strategy.

My top ten tips are:

1. Read The Rules

2. Read The Decisions

3. Know The Terms

4. Know Where The Data Is

5. Talk To The IT Staff

6. Talk To The RM Staff

7. Help Clients With RM Policy

8. Develop A Litigation Hold Strategy

9. Enforce The Litigation Hold Strategy

10. Talk With Your Clients

You can hear a recording of the prsentation by going to the Masters Conference webinar page to  and don’t forget to stop by the Masters Conference itself, Oct. 13th and 14th at the Ronald Reagan Building in Washington, D.C.. I’ll be there as will Chuck Kellner and all the Anacomp folks, who will be happy to answer your questions about e-discovery and how best to handle the challenges you are facing.

Certification ALSP Style

Joe Howie, an old friend and prinicpal at Howie Consulting, is active in the Association of Litigation Support Professonals.  In that capacity, her recently posted the following about the ALSP Certification Program.

This posting is being submitted on behalf of ALSP by Espe Rebollar, Windy Brown and Deborah Coram

There’s widespread recognition that certification would be a positive step forward for litigation support in general and e-Discovery in particular, for both the certified individuals and the organizations that employ them. However, not all certifications are created equal and the value of any particular certification process is directly related to the rigor of the certification development process and the characteristics of the sponsoring organization. As co-founders and leaders of the Association of Litigation Support Professionals (ALSP) we’d like to describe the value that ALSP brings to the certification process and share our vision of certification.

About ALSP. One of the primary reasons that ALSP was formed was to provide for certification. This is set forth very clearly in our by-laws which, in keeping with the ALSP policy of transparency, are set forth on the ALSP Web site (www.alsponline.org).  Recognizing that we had to build credibility before we presented ourselves to the industry as a qualified certifying agency, ALSP has spent the first year of its incorporation building our organization and laying the groundwork for a rigorous and thorough certification program. Milestones we have completed include:

· Became a not-for-profit, legally incorporated 501(c)(6) corporation.

· Contracted SmithBucklin, the world’s largest association management firm, to provide administrative support and guidance. This means that the staff reports to the ALSP board as part of the contractual relationship and that the staff receives guidance, training and oversight from their employer, Smith Bucklin which manages 320 trade associations, professional groups, technology user groups and government institutes/agencies, thereby assuring quality and continuity.

· Established over 15 local chapters including several in Canada.

· Developed membership benefits including a monthly newsletter and free educational Webcasts.

· Completed the organizational governance framework like electing officers, assisting chapters in becoming separately incorporated, setting up bank accounts, accounting systems and auditing processes.

· Obtained liability insurance for the benefit of ALSP officers, directors and staff.

· Developed the framework and plan for the independent certification process (more below).

ALSP has an inclusionary membership policy which specifically encourages participation from the entire litigation support industry.  Our members come from leading law firms, corporate legal departments, government legal offices litigation support software development companies and service providers from all over North America, Europe and .  ALSP encourages this inclusionary policy as it believes a certification process must be appropriate, valid and approved by the entire industry.  We believe that the skills, knowledge and experiences gained by working in the various sectors vary considerably and the only valid certification process would be one that actively incorporates the views of all sectors.

Australia

 

Statistically-Valid and Legally-Defensible Certifications. SmithBucklin has guided several professional and industry trade associations through the certification process and has experts in certification on staff. Their advice and guidance for this process has been invaluable, particularly around the specifics of certification.   We have learned that as certification becomes increasingly valuable to individual professionals and the organizations that employ them, certification applicants who fail to become certified could file law suits challenging the validity of the certification process, exposing the sponsoring organization and potentially its officers and directors to liability.

Accordingly, it is essential that the certification process has to be statistically valid and legally defensible. While everyone would like to have a certification program in place now, the reality is that building a proper certification program is a four-step process that ought to involve the services of a highly qualified psychometrician from a specialized test development company.

Here is a brief summary of the steps in a certification development process which conforms to guidelines established by the National Commission for Certifying Agencies and the National Organization of Competency Assurance:

1.    Job Analysis:  A panel of subject matter experts from a broad cross-section of industry writes up what they do at their jobs, what they need to know, how often they do it and how important those tasks are.

2.    Test Specifications: The results of the job analysis survey are tabulated and analyzed by the psychometrician and subject matter experts to create a final report —the basis for the test specification or the exam content outline.

3.    Test Development: Working from the exam content outline, a panel of subject matter experts prepares items or questions and answers for the topics on the outline. After the initial items are prepared, the test development panel meets as a group to assess the various items to check for ambiguity and correctness of answers so that one optional answer doesn’t tip off the correct response, make it easy to eliminate an incorrect answer, etc.

4.    Cut-Score Study: After the exam is administered the first time, another panel determines the cut-score; i.e., the score that will be used to determine who passed or failed the certification.

To read about the development steps in more detail, please visit www.alsponline.org. This process is rigorous, time-consuming and expensive. ALSP issued an RFP to testing companies for the certification process, reviewed the responses, selected several potential companies, interviewed them and selected one which provides a good fit for ALSP objectives.  ALSP has also done private surveys of key individuals within law firms, corporate legal departments and software and services providers to validate the interest in certification.

An appreciable amount of money needs to be raised by a certifying body in order to implement this process.  When the economic downturn hit with full force early this year, ALSP opted to delay the beginning of a funding drive until the economy started to improve, which it appears it is now doing.  ALSP will in the near future be launching a funding drive to cover the costs of a statistically-valid and legally-defensible certification program.  We will be asking organizations, individuals and chapters to contribute to this important project; all money raised for this purpose will be kept in separate funds and used only for certification.  The funds raised will be reported and administered in a public fashion so as to maintain full accountability to the entire industry.

The training or course work required to pass the certification exam/s is an entirely different area.   ALSP will not be offering a “course” that results in certification of those who pass the course; while ALSP will offer educational programs as part of its member benefits, those people who are directly involved in the certification program will not be involved in developing an ALSP program to help candidates pass the exam.

In summary we would like to highlight the following:

· ALSP is an existing, functioning not-for-profit corporation with staff members that are highly qualified in the certification process.

· ALSP has demonstrated its commitment to transparency and inclusiveness; it welcomes the participation of all qualified individuals, groups and organizations in the certification development process and it welcomes any suggestions or guidance on how to ensure the development of a certification process that truly measures the ability of professionals to perform.

· ALSP has spent a long time establishing the correct foundations, administration, expertise and independence to become an independent and accountable certifying body to the litigation support profession.

· ALSP is a long way down the path of creating a certification program including the upcoming launch of  fundraising efforts to acquire the funds to commence the certification process — we will be releasing details within the next month and are happy to speak to individuals or companies wishing to contribute.

 

ECA: The New Buzzword

Early Case Assessment (ECA) is the new buzz word in the e-discovery world but really only the word is new. Attorneys have always tried to identify and collect the specific  documents they need for a particular matter soon after talking with their client. The difference now, of course, is the often immense volume and electronic nature of the documents which make narrowing their scope problematic.

The key to ECA, at least to my mind, is recognizing that is a process and not a product.  True ECA services should that offer law firms and corporate counsel the ability to gain early insight into cases, help determine case strategy, and predict, control and minimize the costs, risks and time of electronic discovery. Ideally, this would involve metrics, methods and technologies to empower litigators to make optimal decisions as early as possible pertaining to case strategy and budgets.

These services would include defensible search methodologies to reduce the volume of electronically stored information (ESI) required for review, and the means to slash indexing times and nearly all reprocessing prior to review. This, in turn, would offer litigators the ability to bring predictable, reasonable costs to electronic data discovery processes, reduce unnecessary capital expenditures, and eliminate spends typically made under tight deadlines or resource constraints.

Browning E. Marean, Senior Counsel and co-chair of the Electronic Discovery Readiness and Response Group at DLA Piper, says ” The ability to gain early insight into the facts of a case, determine case strategy, and predict, control and reduce costs is exactly what law firms and general counsel departments are looking for.  A vendor’s strategy of approaching ECA as a process, and offering the right combination of consulting services enabled by proven technology should be the right one for addressing these challenges and differentiating itself from other providers in the marketplace.”

Chuck Kellner, Vice President of eDiscovery Consulting at Anacomp, explains how his team  provides ECA services by saying . ” We realize that ECA can mean different things to various stakeholders, so we offer a consultative approach and a scalable solution that is flexible in how it acquires data. Our services ensure lawyers and litigation support professionals’ satisfaction with the defensibility of search methods, and the speed and continuity of litigation processes. By leveraging our proven processes and technologies, Anacomp’s ECA services offer litigators the ability to gain early visibility into ESI and make smart, budget-conscious decisions about what to review and how to negotiate the scope of data discovery.”

So when you hear a vendor say they “provide ECA services”, ask them if by that they mean a process which provides faster operations, higher capacity processing, intelligent data collection and superior search, analytics and processing abilities to provide defensible, best-practice and cost-effective solutions to eDiscovery obligations. If they don’t, you may be speaking with the wrong vendor.

New Organization to Promote ED Certification

In response to the growing requests for standards in the e-discovery field, renowned legal educator (and old friend) Chere Estrin has formed the Organization of Legal Professionals and asked me to be a member of the Board of Governors.  Her statement regarding her reasons for forming OLP and an explanation of the immediate goals is set forth below. I encourage everyone to read this statement and visit the OLP site.

One of the most important single observations from the most recent Socha-Gelbman survey is the shortage of expertise in the market-place with providers, law firms and corporations reported as “fighting each other for the few people who actually understand what is involved in handling electronic documents”. That is significant because the lack of qualified professionals can only grow as a problem. Predictions of 20% or 25% growth in the field does not guarantee that a generation of skilled and knowledgable people are simply going to pop up.

 Most litigation support staff learn on the job. Even as a vendor recruiting candidates from major law firms, you run a risk that the candidate does not have core competencies. Many are victims of degenerative on-the-job training. That is to say, the person training them received inadequate training; the new inadequately trained person goes on to train another person who becomes inadequately trained and so on and so on and so on.

For the most part, vendors do not have substantive training programs geared toward the e-Discovery individual. There’s plenty of continuing ed and in-house seminars but no real comprehensive long-term courses nor exams to certify competencies in eDiscovery. Your reputation, career and business remain at risk.

In this tough economy, vendors hesitate to spend money on training. Firms and vendors alike may hire a person from another position i.e., litigation paralegal; computer technician or someone from outside the field, to transition into the lit. support field. Only after plenty of trial and error (possibly on your clients’ cases), are they called an “expert”. There is no test, certification nor standards to enter or stay in this relatively new profession.

As a result of this crying need from judges, law firms and vendors alike, a new non-profit organization, The Organization of Legal Professionals (www.theolp.org ) has been formed for the purpose of providing an exacting and tough certification exam to establish core compentencies for vendors and law firms alike. This organization has assembled a stellar Board of Governors and Advisory Council to assist them. The names of these legal icons are the best in the nation and beyond.

We need your help. We need you to join and support us. We need you to help spread the word. The lack of qualified people in the fastest growing arena of litigation is unprecedented. And now, there is a way to manage and control the problem.

Please go to www.theolp.org  and join as a member, sponsor, student member or affiliate partner. We are also in need of Member Benefit Providers. You can also become a Subject Matter Expert and get in on the ground floor of this exciting adventure in solving a major problem in the legal field today.

The enormous challenges that have already been met by lit. support stars and hard-working, dedicated and persistent individuals in this field today should not be underestimated nor dismissed. It’s simply time to take a look at the future and who will be entitled to call themselves an e-discovery expert and why.

I look forward to your thoughts. Please feel free to contact me or anyone on the Board of Governors or Advisory Council directly.

Chere Estrin

chere.estrin@theolp.org

www.theolp.org