Pre-Review or Pay More


shutterstock_120719548 by David S. Cochran

It’s a pretty basic proposition. Reduce data sizes earlier in a matter and you will save money. It’s that simple. But, as the recent presidential debates make clear, there is always nuance to every message.

Cost avoidance, by implementing a data mapping process prior to custodial interviews, ensures that the legal team will know where data resides. This reduces potentially non-relevant data prior to actually collecting it. Then, applying a targeted data collection process reduces the data even further.

So, the data has now been reduced through interviews and collection techniques. What’s next?

There has been great discussion on how predictive coding and other forms of technology can save a client time and money. What’s missing? The nuance. These approaches don’t go far enough early enough in the process. They don’t make as much of an impact as they could at being efficient and reducing costs. And, these approaches are built for large matters and are not a fit for every project.

Traditional early case assessment is not enough. A Pre-Review Technology or “PRT” solution goes above and beyond by including a comprehensive tool set to drastically and efficiently reduce the data volumes earlier in the process regardless of the size.

1. Search completely processed data. Without completely processed data, (embedded objects, image types OCRd, spreadsheets formatted correctly, etc.) there is no confident process to ensure the data is all there to search.
2. Conceptual searching to perform analytics. Applying analytics earlier in the process provides more knowledge about the collection.
3. Email threading. View the conversations of custodians with email and attachment analysis.
4. Mobile data inclusion. Mobile data collection is an emerging component for every matter. There must be a seamless process to collect the data and import it into the PRT solution.
5. Tagging data to promote to a managed review platform. The tagging at this stage can then be loaded to a managed review platform to make the review even more efficient.
6. Detailed reporting. Validate your approach and defensibility. Detailed Search Analysis Reports provide a chain of custody during the culling and filtering process as well as defensibility so you know how you did, what you did.
7. No additional costs. There should be no charge for accessing these tools in a PRT solution.

One or two legal team members can drill down into the data and potentially reduce the data by 90% before it even gets to the expensive managed review portion of the project.

Pre-Review Technology should be used for all types and sizes of matters. Through PRT, a legal team can be more efficient, better understand their data, reduce its size, maintain it for future need, analyze it and do it at significantly reduced costs.

Exego Select is the leader in Pre-Review Technology and incorporates all of these tools and functionality.

Mobile devices are not just for saying hello anymore…

Written by Howard Reissner, CEO at Planet Data

Not many years ago there were basic expectations of personal privacy in the United States. Of course we had the 4th Amendment to the Constitution since 1787, which prohibits unreasonable search and seizure by the government relating to suspected criminal activities. And in 1965 the Supreme Court ruled that the Constitution implied a basic right to privacy from governmental intrusion in Griswold v. Conn., 381 U.S. 479. However, these protections applied only to governmental intrusion, and did not address the issue of privacy protections from corporations, individuals or other entities, with several categories of exceptions, notably health and financial records (e.g. HIPAA, Gramm Leach Bliley legislation).

Before the invention of the internet and mobile devices, there was a general sense that your personal information (e.g. papers and photographs), communications and daily activities (especially in the privacy of your own home) were generally immune from third- party intrusion, save for the small likelihood of civil litigation discovery. Neither the government (without a warrant) nor parties to litigation could simply invade your home or office and view your files and personal data.

Then we began to create information in electronic formats, such as word documents, and a bit later, email. This data was stored either on computer hard drives or in the case of email, at third party storage facilities. Personal and employment related electronic data were generally separate; created on different devices, and maintained in different storage locations.

So, what has caused the separation of personal and company information to erode over the past decade? In a nutshell, the rapid evolution of mobile devices and all of the accompanying technology has changed the manner in which data is both created and stored. Today, information – often both personal and work related – can reside on a single device (either employer provided or employee owned) that is in effect a repository of enormous amounts of information about the user and others.

In this new environment attorneys face significant new challenges when utilizing mobile devices for creating, storing and transferring confidential client information.  How should they counsel their corporate clients regarding policies and procedures governing the use of mobile devices that may contain vast amounts of both company and personal information?

The ABA Model Rules of Professional Conduct (Model Rule 1.1) require attorneys to maintain the requisite skill and knowledge to competently represent a client, which includes the benefits and risks associated with relevant technology.  The requisite level of knowledge should extend to protecting the confidentiality of client information (Model Rule 1.6); counseling clients on Mobile Device policies; and the myriad issues relating to the identification, preservation, search and production of information during the discovery process.

The protection of the confidentiality of client information is of paramount importance. Attorneys must be proactive in establishing physical and administrative controls to prevent the inadvertent unauthorized access or loss of this data.  A key first step is to make certain that client data is physically segregated and access restricted, with strong administrative controls implemented within the firm. These controls should include policies, procedures, training and ongoing monitoring.  Technical measures such as firewalls, virus protection, encryption and incident response protocols for mobile devices also need to be addressed.

Attorneys also must be capable of properly advising their clients on issues of data privacy and security as it relates to corporations and employees.  With the proliferation of mobile devices (both employer supplied and BYOD) in recent years, the overlapping of personal and work related data has the potential to intrude on the individual’s privacy while also potentially causing security issues for the employer.

While in general under state law employers have a right to monitor employee email, it is advisable for the employer to have a corporate policy in place to give clear notice to the employee that information created or disseminated on devices utilized in the work environment do not enjoy an expectation of privacy. While a few court decisions have upheld the right of privacy in specific situations (e.g. email to individual’s attorney on personal matter), the basic premise of minimal privacy rights in this context have been upheld. Nonetheless, the employer should also receive employee consent regarding mobile device tracking, incident protocol (i.e. remote wiping, geo-location), and actions to be taken upon termination of employment.

The employee’s expectations of privacy must be established by the employer in a clear, concise policy.  The policy should denote permitted uses of both employer provided devices and employee owned (BYOD). The policy should describe employee training, usage, and tracking procedures. It should also clearly state protocols that will be implemented if there is a risk of data breach, such as a lost or hacked device. In the event of anticipated litigation in which a preservation order must be followed, it should inform the employee of the procedures that will be utilized to preserve the data. Employee consent to the policy should be in writing, and should waive any action against the employer for loss of personal data in the event that the device needs to have the data wiped.  Finally, procedures and control of the data upon employee termination should be acknowledged in the policy.

These policies and procedures should be regularly evaluated and updated, as new technologies and monitoring software are continuously enhanced.

The growing inclusion of mobile device data in the litigation discovery process is an additional source of potentially relevant information that must be addressed by lawyers.

Pursuant to FRCP 34 (a) 1, items under “possession, custody or control” of the responding party (e.g. corporation) are discoverable. See: E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., 2012 WL 5430974 (D. Colo. Nov. 7, 2012), where the court allowed discovery of class members’ social media, text messages and email.

Recent cases addressing the issue of preservation of potentially responsive data on mobile devices have levied sanctions on attorneys who failed to identify and preserve client data (see: Small v. University Med. Ctr. 2014 U.S. Dist. LEXIS 114406 (D. Nev. Aug. 18, 2014; In Re Pradaxa (Dabigatran Etexilate) Products Liability Lit., 2013 BL 347278 (S.D. Ill. Dec. 9, 2013).

Clearly, we are in the midst of a vast expansion of the potential sources of data subject to the discovery process, with new methods of data creation seemingly materializing by the week.

The proliferation of the use of mobile devices in the workplace has radically altered the boundaries between personal and company information. Both employer and employee need to be aware of how this dynamic could affect the relationship in unintended ways.  This is a rapidly evolving intersection of the law, technology and human interpersonal interactions. They are all moving at different speeds, and are constantly being realigned.

Sensitivity to these issues would be a wise decision.

Guest Blog – An Interview with William Wang of the AABANY

Planet Data is proud to announce that we are the exclusive eDiscovery vendor partner of the Asian American Bar Association of New York (AABANY) for 2015!

We recently had the chance to sit down with the organization’s President, William Wang at their Annual Dinner. William shared his thoughts on the AABANY, recent eDiscovery trends and new challenges the legal industry faces today.

PD: Congratulations! We understand your term as President of the AABANY began April 1, 2015. What goals do you have for its members?

WW: I am very excited to take on the challenge of being AABANY President in 2015-2016. AABANY has grown tremendously in the past few years and I follow the footsteps of many great past AABANY presidents. Our membership recently eclipsed 1,100 in our last fiscal year. In terms of goals, I will focus on increasing member engagement. While our membership has grown, I would like our new members to get involved with our committees, which are the backbone of our organization. With a diverse and engaged membership, we can continue to thrive as one of NYC’s specialty bar associations. We have big plans for our Fall Conference in 2015, which will be hosted by Cleary Gottlieb, and some special community events planned as well. I don’t want to give too many spoilers, but this will be a very exciting and cutting edge year.

PD: A recent survey reported that law firms are seeing an increase in total case load over last year and that those cases are much larger than ever before. How does this affect the eDiscovery process from your point of view?

WW: I think the growth in the size of cases just makes an efficient e-discovery process that much more important. I’ve worked on enormous-sized cases where discovery takes several years because of the terabytes of data exchanged. If the process is run efficiently and appropriately, things can move at a much more palatable pace.

PD: Do you feel the upcoming FRCP rule changes will have any effect on discovery and litigation moving forward?

WW: Yes. I believe the new FRCP rule changes will focus on speeding discovery up, making sure e-discovery is proportionate to the needs of each case, and ensuring compliance with maintaining ESI. Hopefully, the process will be improved, with discovery being narrowly tailored enough to allow cases to proceed and not so broad as to bury matters in litigation for years and years. I do believe the FRCP is being modernized to reflect the unmistakable influence of ESI and eDiscovery in modern litigation.

PD: What are the common challenges you face when dealing with international cases with regard to privacy, language or data?

WW: (I don’t deal in international cases very often). The challenges I face are usually language and when clients come from foreign countries and their rules with respect to civil litigation are different. Translations can also be challenging, when you are dealing with handwritten notes scanned into PDFs. The collection of data is tricky of course, in foreign language, because you are really limited in what you can do with respect to search terms.

PD: Do you feel law schools are generally preparing future attorneys for the technological life they might eventually lead at a law firm?

WW: No, I think law students are not exposed enough to e-discovery. I think a class covering this topic as part of a basic litigation skills course would be great and needed.

PD: Please offer a few words of advice to tomorrows litigation attorney.

WW: Think strategically. You may be bogged down in a document review and you may be drafting basic responses to discovery requests, but always think about the big picture. The documents and data play a major role in strengthening or weakening your case through discovery. If you case is strengthened, your client gains leverage in settlement negotiations and of course at the summary judgment stage. Think big picture, and think about how certain search terms can accurately and efficiently net you the correct documents without getting you terabytes of useless data. Prepare, prepare, prepare. Think about the right custodians and search terms before delving deep into discovery. Go broad to capture what you need, but tailor requests narrowly in order to not be inundated with data. Good Luck.

PD: How much snow did you get while at Binghamton and was it more or less than we’ve had in New York City this year?

WW: It snows in Binghamton until May. People escape from hibernation around Memorial Day. It snowed on the first day of Spring in NYC!

PD: What was the first concert you ever went to?

WW: I didn’t go to a lot of concerts when I was young. I was more into sports than music. My first concert was in college. I drove with friends to Ithaca and Cornell University to attend A Tribe Called Quest concert.

More Cases With More Data Create More Challenges

Written by Howard Reissner, CEO at Planet Data

Recent Industry reports have emphasized the issue of law firms claiming higher volumes of eDiscovery case workload and larger raw data sets.  The underlying theme is that attorneys and support staff are undoubtedly and increasingly stressed by this situation.
This information has made me consider why this is occurring and what does this trend portend for corporate clients, law firms and litigation support vendors?

To address the first point, these trends are likely correlated to the improvement in the US business environment, low interest rates, and the ever increasing volume of data creation and retention.

I have heard from many industry participants that towards the middle of this year the pace of litigation began to significantly increase.  Some of this activity was due to increased corporate budgets for discretionary litigation (especially in the IP area) and an additional bump was derived from the flurry of M & A activity  resulting from extremely low interest rates and the ability to finance acquisitions on favorable terms (i.e.: lots of cash sitting around earning nothing).

These combined factors have enhanced the competitive position of law firms and their support teams that can properly handle and manage these complex data collections in an accurate and timely manner.  The life cycle timeframe for many of these cases is often quite truncated.  What has changed is the raw size of the data collection, and the complexity and diversity of the data formats (i.e.: cell phone, text and social media originations).  And, believe it or not, we are seeing the same trend with Lotus Notes databases, which still gives many data processor’s headaches.

So it is no wonder that the workload has increased for law firms and their vendors.  Today law firms are challenged greatly by not only more work, but finding a way to do that work with the same amount (or fewer) staff.   Unit pricing has declined significantly over the past two years, but demand for a high level of client service and support has not.  With the music playing much faster now, it will be interesting to see who can dance at these speeds.  People expertise, efficient work- flow, and a scalable technology platform (that you own, can control and customize for specific solutions) will be more crucial than ever for success.  Clients will not be very tolerant of missed deadlines, data processing errors and a declining level of client service and support.

So in sum, what advice would I offer those firms that are facing the  new paradigm of much larger (and complex) raw data sets, tighter timelines, and financial pressures to reduce (or not increase) the net costs of discovery?  Whether or not you decide to bring the entire process in-house or outsource to a third party vendor, the key issues are the same.  Does your staff have the expertise, technology platform and work-flow than can quickly and accurately identify, process, search and produce large volumes of complex data? Is the system flexible (i.e.: can it quickly incorporate new types of information) and is it scalable, so that ever increasing volumes of data can be managed without slowing down the process, thereby failing to meet deadlines? And most importantly , can you provide a high level of on-going project management while unit pricing for all of these functions continues to face market pressures?

It could get interesting, very soon.

Data Retention, Storage, and the IRS

Observations about the political issues relating to the Proposed Changes to FRCP Rule 37

Written by Howard Reissner, CEO at Planet Data

Over the past few weeks we have seen the issues involving the IRS’s inability to produce emails pursuant to a Congressional inquiry re: Lois Lerner and other IRS staffers grow in complexity. The initial reaction from much of the public has been disbelief that this data was not properly retained and archived, especially in light of the fact that a litigation hold should have been implemented when a lawsuit was filed against the IRS by a tax exempt group, in 2010! The agency claims that Ms. Lerner’s computer crashed in 2011, well after the time the relevant data should have been preserved. I have read multiple explanations of why the IRS’s claim to no longer have that data could in fact be valid, due to the utilization of outdated storage systems and a lack of funding to acquire additional resources to retain the emails on a network wide basis. As such, the IRS is sticking with the claim that the only copy of the emails were on the computers of Ms. Lerner and her associates.

What I find most interesting is that the Congressional inquiry into this matter is being led by the Republicans. They are upset that the information that they seek to further their review of possible improper IRS conduct is being hampered by a failure to adequately maintain a large, complex data creation and storage enterprise.

Over the past year, there have been numerous comments and policy positions taken as the new proposed amendments to FRCP Rule 37 winds its way through the legal and political process. Not surprisingly, the Republicans are sympathetic to the final proposed amendments which should enable corporations to more comfortably reduce data preservation expense and lessen the risk of sanctions when reasonable steps have taken to preserve relevant data. I do find a bit of irony in the fact that the IRS is claiming that its failure to properly identify and retain the emails sought by the Republicans was due to a lack of adequate resources, thereby inadvertently allowing the destruction of back-up tapes that may have contained the requested information.

So, to date, the Congressional inquiry has been hampered by the inability to obtain the information requested of the IRS. This is the type of argument made by Democrats who believe that the proposed FRCP Rule 37 will make it more difficult for plaintiffs to obtain potentially relevant data from corporate defendants.

All of this should make for some interesting developments over the next several months as these issues mature.

Read more from Howard ReissnerDownload Planet Data’s latest legal analysis — a candid review of the proposed amendments to the FRCP Rule 37 — authored by nationally recognized consultant, Anne Kershaw, Esq., with commentary from eDiscovery expert, Howard Reissner, Esq. and prominent industry analyst, David Horrigan, Esq.

Law School Today – Not for the Faint at Heart……or Wallet

Written by Howard Reissner, CEO at Planet Data

A recent article in the New York Times addressed Brooklyn Law School’s decision to substantially reduce the tuition for its next entering class. Brooklyn Law acknowledged that it was responding to the market pressures of a continuing decline in the number of applicants to law school in the United States. This law school is one of the first to take such a radical step in an effort to maintain its academic standards and to enable its graduates to face a somewhat reduced level of potential debt in an extremely challenging legal job market.  Quite possibly the next course of action by law schools will be reductions in class sizes. Clearly, some of the best and brightest are less enamored of a legal career than just a few years ago, and are looking elsewhere for financial and spiritual fulfillment.

These dynamics have left all but the top fifteen law schools scrambling for the shrinking pool of highly qualified applicants. As such, in a reversal of fortune, the schools are now courting potential students with financial aid packages approaching the signing bonuses for star athletes. However, most schools do not have the ability to exist without high tuition fees. Alumni contributions and endowments cannot sustain this model long term.  A contributing factor to this situation is that too many new law schools have opened their doors over the past thirty years, significantly increasing the job seeking pool. Clearly, the law schools that thrive over the next decade will either have to be in the top fifteen, or re-think how they train their students and prepare them for this altered legal environment.

Until recently it was generally believed that the enormous rise in law school tuition over the past decades would be accompanied by high paying “big law” jobs, enabling student debt to be eventually repaid. However, since 2008, the number of such positions has declined dramatically (but not tuition or debt), and it is unlikely that we will return to that economic model. Why? Because the recession of 2008 begat the necessity for attorneys to become more efficient due to client’s smaller budgets and the transparency afforded to the legal process by technology enhancements. As such, large firm clients would no longer pay for young attorneys to be trained on “their dime”. The result has been a dramatic reduction in the number of “big law” positions available to graduates that will allow them to pay off high loan balances.  Big law firms partners can no longer leverage that economic model with impunity; witness the number of firms that have failed or are in economic duress.

So, faced with these macro and micro issues what actions should law firms take to remain competitive and what should law students and junior attorneys do to enhance their career prospects?

Law firm clients are demanding more services for less billing, are better able to audit the work product and time required to complete the services, and are aware that technology is driving down the necessity to create legal documents from scratch for many “commoditized” types of assignments. Law firms need to implement technology and develop work flows that are sensitive to the present economic environment. Even basic document review, which has been a reliable generator of revenue for many firms, is subject to technology enhancements that are sharply reducing the number (and hourly rates) of attorneys required for a case.

Junior attorneys will have better job prospects if they enter the work force with a basic level of technological competence and obtain practical skills through prior full-time work experience, internships, clinics, and summer employment.

While clients will no longer pay for associates to learn to practice law, domain expertise will still be important in the future. If possible, junior attorneys should utilize knowledge from other domains (and prior careers) to create a niche in their skill sets.  A few examples would include technology innovation (business and patent), entrepreneurship, healthcare, biotech, information management, communications, government contracts, privacy, security, and transnational issues. These types of substantive domains are less likely to be impacted by software that can replace lawyers performing more basic legal functions. I have seen demonstrations of contract document building software that can substantially reduce the time required to draft, review and revise both simple and more complex agreements. This is a good thing for clients, not so much for attorney billings.

Not to be under-appreciated are the practical and ethical requirement for attorneys to have basic skills in technology and communication. These core competencies will allow them to be efficient and more valuable to their firms and clients. Pursuant to the ABA’s Model Rules of Professional Conduct, a lawyer should keep abreast of changes in the law and its practice, “including the benefits and risks associated with relevant technology”. Attorneys are daily presented with issues pertaining to social media, communications, security and privacy. Knowledge of how technology interacts with these areas is critical for future success in the legal profession.

To summarize, the practice of law will not disappear anytime soon. However, it is likely that the unbridled growth in the number of new attorneys will rapidly taper off, and the promise of the golden “big law firm” ticket to prestige and riches will be less of a reality for many. The days of just “studying hard,” “showing up,” and “doing well” and are over. Nonetheless, there will still be many opportunities for professional growth and achievement for those who grasp the new legal paradigm and align their skills and expectations accordingly.

Things We Can’t Wait to do at Legal Tech 2014

shutterstock_147839372Legal Tech is always a great time to see clients that don’t get to the city much, and friends you haven’t spoken to in a while.  At Planet Data we also look forward showing off our newest Exego features which this year includes a review module.  We’ll be located in Booth 2123 and are ready to show you a 10 minute demo of Exego Early Case Assessment and Review.  Please stop by to see one and we’ll give you a $10 Starbucks Card*.  We also have a private suite if you prefer a more in-depth demonstration.  Please contact Laura Marques to set up a time.  We look forward to meeting you.

There is, however, one other thing that we are particularly looking forward to – and that’s the invite-only Cowen Group luncheon on Project Management that we are proudly sponsoring, The Evolving Role of the Legal and eDiscovery Project Manager. 

Planet Data COO, David Cochran and The Cowen Group Managing Partner, David Cowen got together to chat about some of the hottest topics that will be covered.  The core group of this panel has had several sessions together since the August 2013 ILTA conference to develop a practical end result.  A strong mixture of large and small law firms, corporations and vendors discussed every job description under the sun to come up with the key line items for the ideal project manager candidate.  This luncheon is not only to show gratitude for all of the participant’s time, but will end with an incredible action item – a real interview guide for hiring the kind of project manager your firm needs.

What does a Project Manager actually need to know? 

Cochran:  2013 was definitely the year of the Project Manager discussion.  This position continues to be the critical foundation for any firm, corporate legal department or supplier and identifying qualified and experienced Project Managers is a challenge.  The panel identified several key attributes and collaborated on what is important for a successful Project Manager.

Cowen:  The role of the eDiscovery Project Manager is rapidly evolving and becoming more advisory and consultative at many law firms, corporations and vendors across the country.  It’s not enough just to know the law, the technology or the workflow.  Today – top talent will be judged by their Business, Social and Political IQ along with the expected legal and tech knowledge.

Challenge: Finding the right candidate.

Cochran:  With complex “Big Data” requirements, (including, success or failure of e-discovery collection, review and production, information governance implications, managed review requirements, focused data collections and more) being the “norm” now, how do you qualify candidates?

Cowen:  Career opportunities are always a hot topic at LegalTech and I expect this year will be no exception.  Law firms, vendors, corporations and consulting firms each continue to invest in critical talent and the demand for experienced eDiscovery Project Managers, consultants and attorneys has accelerated in recent months as the vendor landscape gets more competitive and corporate clients continue to raise expectations.

Hiring and Training

Cochran:  The skill set requirements continue to grow year after year, and without sharp individuals in place to understand, facilitate and execute on these ever-changing requirements, the lawyer would be in dire straits.  We consider proper training, re-training and support mission critical, and do not take it lightly.

Cowen:  In 2014, the ability to hire, train and retain this unique talent will prove more critical to success than ever before.  The difference between those that will lead the pack and all others over the next two years will be more about the talent, then about tools and technology.  The biggest difference will be made by the talent that innovates, disrupts, and creates better ways to use those tools, thereby creating productivity and efficiency, which leads to increased, market share, revenue and profit.

In Closing

Cochran:  Whether it’s consulting on a project strategy with a client, working with a client on collecting data, ensuring that data is processed correctly, working with experienced suppliers, or providing their overall expertise to the lawyers, these individuals are professionals and the bedrock of any project.

Cowen:  I predict the winners will be those organizations with the best hiring plan, career path, retention strategy and leadership. We hope this skills assessment checklist helps you in evaluating your current talent strategy and in making better hiring decisions in order to become that organization.

*While supplies last.  Distribution at the discretion of Planet Data.

The Technology Bar Has Risen and Attorney Competency Must Move to Meet It

The Essentials of Understanding Technology on a Practical and Ethical Level


What is one of the most important issues to affect the legal industry over the past decade? Yes, changes to the FRCP and the 2008 recession would certainly rank highly, but more fundamentally, the explosion of technologically enabled methods of data creation, and the practical implications, and communication of these developments on the practice of law.  Over the past year or two there has been a groundswell of attention pointed directly at attorney technology knowledge and skills.  More specifically, the focus is on the higher standards now required for professional competency. Or to put it another way, there is an increasing focus on just how lacking many attorneys are in deploying technology skills.  Not just with the more specialized technical practice areas (such as IP or litigation), but even in the fundamental skills required for day to day efficient practice, such as basic competencies in the use of the Microsoft Office suite of software.

To put this in proper perspective; this applies to all of us. With few exceptions, lawyers at all levels of experience will to some degree be affected by their ability to demonstrate basic technology skills. For example, an attorney often needs to request and receive information from a client. Since data and information is now created and stored in so many different forms and places, a basic understanding of these tools is required just to posit the questions correctly. If you are involved in litigation, due diligence, investigatory or compliance matters, there are fundamental skills required just to understand the key issues and facts of the matter, and to properly utilize this information for your client’s benefit. To clarify, this does not mean that you need to become an expert in computer programming and IT systems. What it does mean is that you need to develop a fundamental understanding of how to use and implement these technologies and systems so that you will be able to identify the key issues and appropriate experts to support your efforts.  The incentives? In addition to fulfilling your ethical requirements, going forward, technology competency may distinguish between those who prosper, and those who do not.

The legal services industry has fundamentally shifted from an era of minimal client knowledge about legal work requirements, quality, or billing standards, to one of increasing transparency; even prior to project engagement.  The industry has become the most competitive we have ever seen, and that trend is likely to continue. There are several major factors that are primarily causing this shift, of which the most important may be that for many types of non-complex issues legal services are becoming commoditized. Nontraditional service providers are offering legal services at lower costs, and the billable hour is no longer routinely accepted; with clients increasingly demanding predictability in legal fees. Let’s face it, one of the reasons that routine legal matters are becoming viewed as commodities is directly due to the advances in technology that allow ideas and documents to be efficiently repurposed, thereby reducing the need for each document to be an original piece of legal work.

All of us are painfully aware of the impact that technology is having on our daily existence. We have moved in a very brief historical span from writing on yellow pads, sending snail mail, and land line telephones to an ever changing environment of personal computers, laptops, email (both business and personal), smartphones, tablets, iPads, texting, Twitter, Facebook, Vine and others that haven’t even debuted yet.  It seems as if there is a daily creation of new social media methods of communication, and the manner in which the information is stored. Proliferation of technology, data creation and information transfer is accelerating at ever increasing speeds.   I am fortunate enough to have a 14 year old consultant at home. She recently brought me up to speed on which social media technologies are gaining traction with her age group.  But what do you do if you don’t have a 14 year old?

Although many of these amazing innovations have been incorporated into the basic fabric of our economy, the practice of law has not changed dramatically over the past century, and continues to be a lagging sector in the implementation of technology based efficiencies.

Lawyers, out of practical and economic necessity, are being forced to rapidly adapt to this growing paradigm of massive information and data creation and the expectancies of a marketplace that places a premium on efficiency. Unless you have a unique set of professional skills that are highly differentiating, both senior and more junior attorneys will be evaluated by clients and colleagues in some measure, by their abilities to master and effectively deploy technology skills as one of the core components in their toolbox. In the most practical terms, for an experienced lawyer, it may mean the difference between obtaining a new client, or in the retention of an existing one. For a junior attorney, it may be a factor in career advancement. For a new lawyer, it may be the differentiator in getting that first job.  Technology is changing the practice of law, and in a profession that is seeing minimal growth, it is becoming another method to screen and evaluate the competitive pool.

Some of us probably went to law school (with the exception of course, of IP attorneys) believing that the practice of law would not require a significant amount of technical knowledge or expertise. But in reality, there are now basic levels of technical knowledge required of all attorneys. While there are specific types of domain expertise demanded of litigators, for example, there are general levels of technical competency that all of you need to attain in the second decade of this century. There are few practice areas today that do NOT encompass the need for these minimum levels of knowledge. Compliance, contracts, security, privacy, due diligence, investigations, human resources, etc. now all require attorney knowledge of how their clients manage their information systems and where they store and share their data.

What has changed the most over the past few years is the expectation of clients, who are demanding that the practice of law incorporate these productivity enhancement tools. There is a new focus on “efficient = proficient”. Our difficult economic climate has necessitated corporate clients to demand competency in practice management, and in fact, are more frequently retaining consultants to analyze the comparative value obtained from their outside counsel.

The knowledge of basic technology concepts and a good facility with baseline technical skills is no longer optional; it is mandatory for attorneys that desire to prosper in the decade to come.

In 2012 the ABA made amendments (and revisions to the comments) of its Model Rules of Professional Conduct, reflecting the practical realities that technological competency is no longer just a desirable skill for attorneys, but in fact an ethical obligation to their clients. We are likely at the beginning of a period where clients may challenge negative outcomes of matters based upon their counsel not exercising the expected levels of technical competencies. These types of situations will likely not be helpful for practice development.

Whether you are a senior attorney, in mid-career, or just starting out, these standards have risen and will continue to evolve.

From Music to Mars…To ILTA

From Music Indsustry to e-Discovery

by Laura Marques
VP, Marketing and Communications
Planet Data

Five years ago I was in the music business, and never thought I would ever be anywhere else. However, that industry was in worse shape than most at the time and I knew I had to make a change. So I did…to the Legal Technology sector. Natural progression one would think. NOT. I honestly had never heard the word algorithm used in a meeting before.

But it’s a platform, not a punk band

So how do you market a platform instead of a person? It was easier than I thought because after all, what you really need to work with is something cool, and that I do. For one thing our platform – Exego – is a game changer. It’s a processing workhorse, with an efficient ECA solution, flexible workflows and a brand new review feature. Super smart and super simple. Exego combines the best of ECA and Review in one place, which helps our clients save money and do better work. What’s not cool about that?

A showcase is a showcase is a showcase

When you are working on something new and amazing, you can’t wait to showcase it. At LegalTech we conducted some sneak previews of Exego Review and shared some behind-the-scenes work with our clients. We took notes on what was most important to them, continued development and set our sights on ILTA.

Fast forward through the longest winter EVER, and we are now ready to officially introduce Exego Review. Planet Data representatives will be on hand to demo both Exego ECA and Exego Review for you.

Main stage, side stage, back stage

We’ll have Planet Data representatives all over Caesar’s – at Booth 524, in Forum Ballroom 3 and at the Relaxation Station where you can have a massage and a few minutes with no sales pitches – unless of course you want one.

Pass by our booth 524. You’ll get to meet Lori, one of our Project Managers, or Steven, one of our Review Experts. I’ll be there too. Drop your card in the fishbowl, and you’ll be entered to win a $250 Amex Gift card.

Then visit us in Forum Ballroom 3 for a little more interaction. Meet more of our staff, like Zoltan, Planet Data President and Dave, our COO. Mike, our CTO, company wizard and Exego creator, will have a short presentation of Exego Review ready to go whenever you have time to stop by. Brad, our VP of Consulting Services and Adam, our Regional VP of Business Development will be there to help you test-drive Exego ECA so you can see how simple it is to use. And, if you sit with us for a 20-minute Exego Review demo we’ll give you a real redeemable Caesars casino chip (while supplies last and at the discretion of Planet Data). Oh, and you can enter to win a $250 Amex gift card here, too.

As you walk, walk, walk through the conference center be sure to find our Planet Data Relaxation Station near the Augustus Ballroom. After all, Planet Data’s Exego delivers stress-free eDiscovery; so why not deliver a little stress-free convention time. And, like the booth and demo room you can enter to win a $250 Amex gift card here, too.


And finally, we’ll be hosting Happy Hour in Forum Ballroom 3 on Tuesday @ 4:30, and sponsoring all the meals and breaks on Wednesday. Again, all our people will be mingling around so please introduce yourself. We all look forward to meeting you.

Thank you, good night!

Thanks for your time today. I look forward to seeing you in Vegas. In my next blog before LegalTech, I’ll tell you how the New York Hilton was once the home of a hugely popular 1980’s music convention.

Until then, yours in marketing….
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Standards for Competency in eDiscovery on the Rise – What’s Your Best Defense?

By, Howard Reissner, Esq., CEO Planet Data

The recently issued opinion in Branhaven, LLC v. Beeftek, Inc.  et.  al., 2013 WL 388429 (D. Md. Jan 4, 2013) highlights the requirements for attorneys to continuously keep abreast of changes in professional standards of competence in their fields of practice. The bar for minimum competency is rapidly rising in the e-discovery universe.  A significant percentage of federal judges have become well enough educated in this area to confidently determine which attorneys that appear in their court are both complying with the FRCP and have adequately investigated their clients data systems and infrastructure.

In “Branhaven” the court sanctioned both the client and counsel under FRCP 26 (g) for the incorrect certification of a signed response to a request for production. In fact, counsel had as of the date of the certification not made a reasonable effort to assure that the client had provided all of the information and documents available to him that are responsive to the discovery demand, yet he represented that he had done so.  The decision noted that pursuant to Rule 26 (g) (3) “if a certification violates this rule without substantial justification, the court….must impose an appropriate sanction on the signer of the party on whose behalf the signer was acting or both…”

In a second recent Federal Court decision, In re Delta/Air Tran Baggage Fee Antitrust Litigation., 846 F. Supp. 2nd 1335 (N.D. Ga. 2012), Delta Airlines was sanctioned pursuant to 26 (g) for failure to make sure that all relevant hard drives and other ESI were searched after making many assurances to the court that a reasonable inquiry had been made.

“Branhaven” and “In re Delta” are another clear signal to practicing attorneys that they will be measured against a higher standard of professional competence and scrutiny of their behavior by a judiciary that has become much more educated about technology and e-discovery over the past few years.

Along the same line of reasoning, counsel may not escape potential negative consequences due to having relied upon an outside vendor to manage part of the discovery process. In Brookfield Asset Management, Inc. v. AIG Products Corp., 2013 U.S. Dist. LEXIS 29543 (S.D.N.Y. Jan. 7, 2013); the defendant was allowed to claw back documents that had been inadvertently produced because a FRE 502 (d) agreement was in place. However, due to vendor error, the damage was done. The redacted text was visible to the plaintiff when viewing the metadata. I believe the lesson here is that an attorney should be confident that they have the knowledge to retain vendors that have significant professional expertise, utilize high quality software, and have developed work-flows and quality controls to minimize these types of painful errors.  See also: Peerless Industries, Inc.  v. Crimson AV, LLC., 2013 U.S. Dist. LEXIS 2985 (N.D. Ill. Jan. 8, 2013), where counsel was held responsible for the incomplete collection of data by a vendor. 

As a reminder to in-house counsel that they are responsible for monitoring the actions of their outside law firms, in Coquina Investments v. Rothstein, 2012 U.S. Dist. LEXIS 108712 (S.D. Fla. Aug. 3, 2012) the court imposed sanctions under Rule 37 against both the defendant and outside counsel. The findings of fact in the judge’s order will likely have substantial negative impacts for the defendant in future litigations brought by other plaintiffs.

As a participant at many legal educational forums over the past year it has become apparent to me that the federal judiciary has significantly enhanced their expertise in many of these technical areas; perhaps well beyond that of many of the lawyers that appear before them. I believe that it is good advice to encourage litigators who are still unfamiliar with their fundamental obligations in e-discovery to quickly get themselves up to professional standards. It should be apparent today that a large percentage of litigation will include some aspect of ESI. Lack of technical knowledge or the inability to employ others who do is no longer an excuse for discovery lapses.  In addition to the various types of sanctions and malpractice actions that can result from these professional lapses are the real possibility of incurring disciplinary proceedings from the state or federal Bar. See:  In re Disciplinary Proceedings Against McGrath, 174 Wash. 2nd. 813, 280 P. 3d 1091 (2012).

Although there has been a steady climb up the technology learning curve for many federal judges, there still is a wide disparity in expertise within the group. As such, an attorney is well advised to spend some time researching a particular jurist’s level of e-discovery knowledge and the professional standards that have been imposed in their courtroom.  A review of the judge’s prior published opinions (and other precedent from the jurisdiction) should be a mandatory requirement. Over the past two years a substantial number of opinions have addressed attorney cooperation, data preservation, litigation holds, processing, searching, technology assisted review (TAR), and production. 

So, what actions should an attorney take prior to commencing a case before a judge for the initial encounter? At the most basic level, all of the judges published opinions that include discovery issues should be read. In addition, any speeches, articles or other publications authored by the judge should be reviewed. Does the judge attend CLE and other professional conferences that address e-discovery? It would be prudent to seek out other counsel who had appeared before that court to seek out their experiences with that judge. Inquire as to the level of the judge’s technological savvy.  Does the judge become directly involved in discovery disputes or does she keep a “hands off” approach and let the parties work it out between themselves? Is the judge a proponent of TAR and has she allowed or mandated its use in prior cases?

So, what steps can an attorney take to get off on the right foot with the judge? First, cooperate with the opposing counsel from the outset as much as is practicable. Recently, the judiciary has taken a more active role in encouraging cooperation between counsels; see: Carrillo v. Schneider Logistics, Inc., 2012 WL 4791614 (C.D. Cal. Oct. 5, 2012), where the court awarded monetary sanctions for defendants repeated failures to cooperate in the discovery process. Also see: Easley v. Lennar Corp., 2012 WL 2244206 (D. Nev. June 15, 2012), where the court urged direct personal contact between counsel prior to filing motions to compel discovery. Finally, see: Kleen Products LLC v. Packaging Corp. of Am., 2012 WL 449865 (N.D. Ill. Sept. 28, 2012), where the judge commended the lawyers and their clients for conducting discover in a collaborative manner.  

Judges have made it clear that they do not want to be involved in “ministerial” discovery disputes. Attorneys who appear to be taking the extra steps to avoid these types of conflicts will have elevated themselves in the mind of the judge.

Secondly, take the effort to carefully consider your discovery requests, both as to scope and form of production. As the raw size of data continues to accelerate, the issue of proportionality has taken a more central role, see:  Boeynaems v. LA Fitness Int.’l, 2012 U.S. Dist. LEXIS 115272 (E.D. Pa. Aug. 16, 2012), ordering Plaintiffs to pay for additional discovery costs prior to class certification, and Juster Acquisition Co. v. North Hudson Sewerage Authority, 2013 U.S. Dist. LEXIS 18372 (D.N.J. Feb. 11, 2013), where the court granted plaintiff’s discovery request as being reasonable and not creating a cost burden that outweighed the benefits of defendants compliance as considered within the scope of the case.   These decisions emphasize that judges want cases to be decided on the merits and that discovery requests should take into consideration the value of the cases and issues under dispute.

Finally, if the judge is not as sophisticated in the technology issues as you would prefer, then provide educational resources and professional support that will validate your positions.