The Changing Legal Industry

Transcription

1 The Changing Legal Industry Hiring an E-Discovery Expert Can Make Sense AND Save Money Managed E-Discovery If you aren t an expert in e-discovery that s okay In a recent e-discovery ruling Delta airlines was ordered to pay $2.7 million dollars in sanctions for failing to turn over the appropriate Electronically Stored Information (ESI). See In Re Delta/AirTran Baggage Fee Litigation. These penalties were in addition to over $4 million that they have already paid out over the four-year life of the case for failing to produce the requested ESI. How did this happen? Were they intentionally trying to hide documents? It doesn t appear so. However, the court noted that Delta delayed taking two important actions that should have been taken more promptly in order to preserve evidence. First, Delta waited until May 13, 2009 to instruct CSIRT to move the custodians accounts from Delta s standard server onto its litigation server to prevent automatic deletion of their s. Second, Delta did not instruct IBM to suspend its practice of periodically overwriting server backup tapes until sometime between May 19 and June 5, In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299, 1305 (N.D. Ga. 2011) ( Delta 2011 ). Unfortunately, outside counsel represented to the court from the outset that all of the requested information had been produced. Indeed, the Court went so far as to say that it would be impossible for Delta to have been more forceful in its assurances that it had fully complied with Plaintiffs document requests and the DOJ s CID. But just days after the Court entered its February 22, 2011 order, it became clear that Delta s rhetoric was far removed from reality. In re Delta/AirTran Baggage Fee Antitrust Litig., 846 F. Supp. 2d 1341 (N.D. Ga. 2012) ( Delta 2012 ). The court found that Delta had not provided the requested information but stopped short of finding that the misrepresentation was intentional. It appears that Delta was in the same situation that many companies and law firms are in when it comes to e-discovery, legal holds, collection and production. They were doing the best they could with what they had but it might not have been good enough. And when it s not good enough the costs and implications can be staggering. Perhaps if communication between the correct people at Delta and their outside counsel had been better the outcome would have been different.

2 How can you protect your company or your client from this type of costly penalty? Make sure that you understand what is expected by the court and the other parties from the outset. In many cases, if you take the time at the start to make sure that ESI and the document review process is being taken care of, you will find yourself miles ahead of the other parties and can take the lead in directing the process and production. There are many valuable resources to get you started, including numerous conferences that offer Continuing Legal Education Credits (CLEs) that can keep you up to date on the most recent developments and issues in the e-discovery world. Well known e-discovery conferences are sponsored by The Sedona Conference, The Electronic Discovery Institute, Association of Certified E-Discovery Specialists (ACEDS) and The Consero Group. If you don t have time to attend a conference, one of the leading online resources (and most comprehensive) is The Sedona Conference organization website. Here you can find publications on various topics including e-discovery that can be downloaded for free. However, in this fast changing world of e-discovery and technology you might also want to consider hiring an expert to save both time and money. Whichever route you decide is the best course of action, here are some guidelines to get you through the process and/or make sure you have selected the best vendor/expert to assist you throughout this quickly evolving phase of litigation. Tip 1 Make sure that you and your client understand what is being asked of them so that they can collect accurate information. Take the time for all of the parties involved to sit down and outline an e-discovery plan. Meet with the in-house counsel and make sure that they understand what the other side is requesting. Don t get caught in the trap of thinking that someone else is doing it or that they know more than you do. As the outside counsel handling the case, you will be speaking to the court and advising them that everything has been collected and that the request for production of documents is complete. To that end, make sure from the start of the conversation with the other parties, the court and your client that everyone is on the same page regarding what information is being collected, how it is being collected, and the timeframe for production. Questions to discuss with your client: 1. What is the time frame for delivery? 2. Will there be one delivery or rolling deliveries? 3. Expected data types? i. LEF ii. PSTs iii. NSF iv. edocs(ms) v. Image Based vi. Other 4. Do you expect to have any non-english language characters/documents 5. Are there any foreign-language search terms? Taking the time to discuss these questions at the start can save you and your client time and money. With the potential added benefit of getting the case off to a smooth start and having the 2 August 2015

3 judge and other parties looking to you for guidance. Not only is it important to gather this information, it is vital that you are able to explain, to opposing counsel and the court, the process that either you or your expert vendor went through from the start of collection to the production. TIP 2 - If you aren t an expert in e-discovery that s okay. Today it is becoming common to hire specialized vendors and non-attorney consultants to assist the parties and the courts in providing technical expertise with the collection, review and production of ESI. The right technology offers a variety of software and services that can assist throughout the ESI process. When looking at experts or vendors everyone asks about the cost of the service. While cost-containment is important, don t forget to consider the experience of the vendor, the project management and the defensibility of the process. The details of the process and the defensibility of the process is what you can hang your hat on when the other side or the court starts asking questions. To start with make sure that the vendor is ISO certified and that the technology meets SSAE16 Type II audit requirements. ISO certification is a set of standards for providing guidance in Information Security Management Systems. Periodic audits are performed to ensure that the standards are being met and that the organization has a system in place to manage sensitive information. Another important thing to look for is a vendor with a clear understanding of the e-discovery process from start to finish. A one-stop shop can assist you from the initial intake of ESI from the client all the way to the production phase. A vendor that can take you from start to finish should be able to provide expertise and direction to make the process easier and more efficient. They should have checklists in place to ensure that all of the questions are being asked to the other parties, outside counsel and in-house counsel to make sure that nothing falls between the cracks. The vendor should be able to offer the technology solution that will host the documents. They should be able to provide a review team to assist with the document review once the documents are processed and be able to prepare the documents for production to the other side. Although a one-stop shop is becoming more common these days, these vendors/experts should also be willing and able to offer a la carte services as well. Don t let them lock you into using their technology if your firm or company already has a technology solution in-house that will do the job. Tip 3 - Once the data is collected and uploaded onto a platform make sure you know what is in the data. Technology today is powerful. It is even more powerful when you know how to use it. Early Case Assessment (ECA) is an invaluable tool to give your legal department or outside counsel access to the information that they need prior to going into the first Rule 26 hearing or meeting with opposing counsel. Unfortunately, most lawyers don t have the time or experience that allows them to easily access the information that the technology platform has to offer. If that s the case, it may be another reason you might want to consider hiring an expert to assist you. It can save you, and your client, time and money. In fact many technology vendors and Legal Process Outsourcing (LPOs) companies are the leading experts in the industry and can offer you assistance and guidance as part of their suite of services. 3 August 2015

4 Be on the lookout for advanced analytics functions that will allow expert users to perform many functions directly within the review tool to help eliminate import/export time, increase review accuracy and streamline the overall workflow. Vendors should be able to help you create review batches based on clustering to generate more precise document coding that will help to streamline the entire review process. The technology should also be able to find and batch tag near-duplicate documents and/or review s by threading. All essential tools that can help you significantly reduce the number of documents that have to be manually reviewed saving both time and money. These ECA tools can also provide invaluable information for you to take to the initial Rule 26 hearing regarding the amount of documents that should be reviewed, the custodians that likely have pertinent information, the time to review the documents, and the cost for the review. Tip 4 If you hire an expert it s important to know what they are doing. A vendor should provide you with the information that you need to know what has actually been done by every person on your project. For example, you should not be receiving a bill from a vendor that charges 10 hours for technology time, and you should not be waiting for weeks to hear from your vendor regarding the status of the collection or the document review. Rather you should receive an invoice with detailed information regarding each expense and you should receive timely updates from the vendor regarding the status of the work and the time frame for the next steps. Only work with a vendor that keeps you involved throughout the process. There should not only be checklists in place, but there should be constant communication throughout the project to allow you to monitor the decisions and actions of your vendor at every step in the process. Continue to look for ways to improve the process whether it be a more efficient review or a more defensible detailed review. You can use the time saved by hiring an expert vendor/lpo to keep your eye on improving the process, using the technology to its fullest capabilities and finding the best available resources for the task at hand to get better results for your client. Some vendors have developed a dashboard that gives clients transparency and real time universal access to track and report on the metrics that are crucial to evaluating a vendor s performance. With a powerful dashboard on your desktop, even the smallest legal department can regularly review the performance of individual attorneys and vendors as a whole. Information gives you control over the project and access to reports that will help defend your legal team s decisions whether it is to your client or to the court. How many people do you need on your next project? Who are the best reviewers? Real time metrics give you access to reviewer rates each day. Can you meet the deadline of the court? The transparency that universally accessible metrics gives your legal team goes a long way to reduce potential issues before they become costly problems. 4 August 2015

5 Tip 5 Contracting for the Document Review = Quality Experts - Process It s important to realize when lower prices and expert services of a LPO are exactly what you and your client need. A good LPO company can provide you with a team of expert attorney reviewers. These teams are often experienced with the document review process from start to finish and have been working on multiple technology platforms for years. A reputable LPO will have a standardized process in place to handle a project from start to finish. Staffing, deliverables, hosting, processing, production, protocol and communication plans should all be mapped out at the onset of a new project. Project Management will follow and includes the orientation phase, first pass document review, quality control process and daily reports. All of this work occurs while the US team is sleeping, ensuring that valuable time is never wasted. Another overlooked advantage of hiring an LPO to perform the document review work is the added benefit of the process of having multiple layers of review for the documents. This process allows multiple levels of review for each document while keeping costs to a minimum. With each human that reviews a document different questions are raised to allow for more conscientious decisions on the most important documents. This provides your clients with the most reliable review process at the most cost-effective rate. Another advantage to the use of an LPO is the ability to supplement your current staff with the outsourced review team, this supplemental and periodic addition of resources might allow your office to take on a project that is larger than they could normally handle. Being able to scale up and add additional resources to your team without hiring 10 to 20 new employees is a tangible benefit to using an LPO for this fluctuating phase of the litigation. Tip 6 - Customizable pricing models a la carte and start-to-finish services Finally, a vendor should offer multiple pricing models to fit every client s needs. It is common these days to offer hourly rates, per document rates, volume discounts for hourly rates, flat fee pricing, monthly pricing, a la carte pricing and bundled discount pricing. A vendor should be willing to work with you to put together the type of pricing model that fits your client s needs. In the ever changing legal world it is clear that law firms and lawyer rolls are continuing to change. The most efficient model will likely be some combination of technology and outsourcing of legal support services to qualified and reputable vendors. These types of relationships will allow both Legal Departments (in-house), Outside Counsel and LPO s to do what they do best and embrace the improvement brought about by technology and leverage technology and manpower to the client s advantage. A win win for all involved. 5 August 2015

6 Lee Holcomb is the Chief Operating Officer (COO) of Cobra Legal Solutions. Lee has been with Cobra since 2010 when she started working with the team in Chennai, India. In the two years that Lee lived in Chennai, she lead document review projects and worked directly with the attorneys to improve quality control and educate the attorneys on the US Legal system. Lee is committed to providing every client with the most cost effective and leading-edge solution in this rapidly developing area. In order to do so, Lee is focused on providing case and client-specific advice about e-discovery methods and best practices for each individual matter. When Lee returned to the US she continued to work with the team in India and took on the added roll of COO. Lee is a member of The Sedona Conference Working Group 1 and The Tennessee Bar Association. Prior to joining Cobra, Lee was a partner at Leitner, Williams, Dooley and Napolitan in Knoxville, Tennessee. Lee received her BA from Rhodes College in Memphis, Tennessee, and her JD from The University of Memphis. Lee is originally from Murray, Kentucky but currently resides in Boise, Idaho. After completing her Undergraduate and Graduate degrees in Memphis, she lived across the State of Tennessee residing in Nashville, Chattanooga and Knoxville, Tennessee. In 2006 she moved abroad with her family to live in Poland, India and Paraguay. Cobra Legal Solutions, LLC 1214 West 6 th Street, Suite 203 Austin, Texas August 2015