The Estrin Report

"The Data Boom: Can Law Firms Profit?"

Yeah, oh, yeah! Read how in this Legal Technology article about how MoFo responded when a small client was hit with a huge discovery request:

"In the fall of 2005, a small Israeli technology startup came to San Francisco's Morrison & Foerster with a lawsuit -- and, soon enough, a problem.

[snip]

"The stakes weren't particularly high -- just a few million dollars. But after the case was filed, the defendant hit back with an electronic discovery request -- every relevant e-mail, Microsoft Word file, spreadsheet, you name it -- so onerous that its cost alone would take a fair chunk of any judgment.

"'We saw that it was going to take several hundred thousand dollars to do this,' says Oz Benamram, director of knowledge management and Israel practice counsel at MoFo. In fact, there was nothing terribly unique about this situation. As more correspondence and information is stored electronically, e-discovery is requiring more time, and more dollars, than ever before.

"What was different was MoFo's solution. Realizing that the standard way of reviewing documents -- having teams of associates, or lower-priced contract attorneys, sift through anything that could be relevant, deciding what was responsive and had to be turned over, and what was privileged and needed to be kept -- wasn't going to cut it, the firm suggested a radical approach: automate almost everything."

Be sure to read the PROFIT CENTER? section at the very end of this article.

"The authenticity of a found document:

Hmm, interesting problem that can torpedo a case. Does your firm's IT department employ effective document management policies?

"What seems to be the problem? Your IT organization has put in place proper procedures [PDF] for deleting electronic documents, including e-mails. So it is no surprise when as a result of litigation your e-discovery process cannot turn up a particular document. However, to everyone's surprise the document turns up on your CEO's laptop. This is a very possible scenario. You must know whether the document is admissible as evidence in a civil lawsuit.

"What do you need to know? Evidence is admitted in court only if it can be shown that the evidence is authentic. Authentic data must follow a chain-of-custody. So how does this work with a lost document that has now been found?"

Find more key questions for IT in the balance of this article from Storage. 

Author David Hill is the founder and principal at the Mesabi Group...an industry analyst firm that focuses on networked storage and storage management.

"Consultant Compatibility: Take the Quiz"

Always good to have thoughtful checklists for hiring vendors, I say. And this quiz from Legal Technology looks very helpful:

"There's a saying that starts, 'You know you're in trouble if ...' But sometimes, by the time you know you're in trouble, it's too late to start asking 'Why?'

"One example of such a time is with e-discovery and legal technology projects. If you're halfway through the project and run into trouble, backtracking to correct the problem usually isn't an option. A nearly ironclad way around that problem includes proper preparation and having the right team. These are key elements to the success of any legal technology project, from e-discovery to product-implementation schemes to training sessions.

[snip]

"In this article, we offer the nitty-gritty for attorneys and others involved in e-discovery and other legal technology projects. Start the process of answering key questions by taking the consultant compatibility quiz...."

Authors Christin Martin and Kelly Lumpkin are consultants with Simpson Neely Group Inc., which provides technology consulting services to corporate law departments.

"EDD-ucating Yourself About Electronic Discovery"

Not a new article  (Oct. 2006) from the ABA's Law Practice Today, but someone just pointed out that it says something nice about this blog. (How did I miss that!?)

"It was back in July 2004 (http://www.abanet.org/lpm/lpt/articles/slc07041.html) when Tom published the first Strongest Links article on the subject of electronic discovery as part of an influential EDD-themed issue of Law Practice Today.  Since that time, the electronic evidence landscape has changed considerably, and EDD is more important that ever.  With December 1 -- the date the amended Federal Rules of Civil Procedure will take effect -- fast approaching, we thought it would be a good idea to revisit those links, and provide an update to those of you who are still learning about the intricacies of e-discovery.  Which, really, is probably all of us.

[snip]

"Weblogs -- Surprisingly, there have not been a lot of weblogs on the subject of EDD.  However, those weblogs that do discuss the topic are terrific. 

[snip]

"The Estrin Report is a group blog created for professional paralegals that often covers electronic discovery topics."

If you're a litigation paralegal, be sure to read the complete article -- it's chock-full of very helpful links!

As as regular readers know, The Estrin Report is all about finding & posting news & other items of interest to you! Your comments, suggestions, even complaints, are appreciated.

Houston's State-of-the-Art Electronic Data Discovery Lab

Ths news sounds wonderful doesn't it? I'd sure like to take a tour!

"UHY Advisors today announced the opening of its newly constructed electronic data discovery lab, a state-of-the-art facility for processing large volumes of electronic evidence and conducting sophisticated computer forensics investigations, at a secure location in downtown Houston.

"The lab is unique for its flexibility to be used for both high-volume electronic data discovery -- including data processing, culling with search terms, de-duplication and file conversion -- and complex digital forensics activities. The facility is  [PDF] secured with biometric locks and the evidence storage 'vault' is also secured with advanced motion detectors."

"Making Forensics Elementary at Your Firm"

Here's another career choice -- computer-forensics examinaton -- in which a paralegal background can be most helpful:

[snip]

"Attorney and e-discovery expert Tom O'Connor, with the Washington, D.C.-based nonprofit Legal Electronic Document Institute, says that judges in the cases he consults on are ordering e-discovery and computer-forensics investigation much more frequently than ever before. O'Connor is seeing the effect of this change on all kinds of cases.

[snip]

"For civil domestic cases such as divorce proceedings, there's an enormous amount of forensics investigation occurring. O'Connor says that PCs are being examined to prove or refute claims by one spouse that the other has been engaging in extramarital affairs or hiding financial assets. Forensics experts are trained to search for e-mail exchanges in which the parties are setting dates and carrying on other communications. They can also:

• Uncover questionable online purchases;
• Track credit-card transactions; and
• Detect whether credit cards unknown to one spouse are being used to make illicit purchases.

"Stephanie Simons Neal, litigation-support [PDF] project manager in the New York office of Weil Gotshal & Manges, attests to the burgeoning need for forensics expertise at her firm. Simons Neal's caseload consists of a number of patent cases, along with other corporate-litigation matters.

"'We've definitely noticed an increase in request for forensics, as well as requests for review and production of documents in native form as opposed to paper,' she says, adding that while the requests continue to come in, the expertise to meet those requests is lacking and there is a growing 'disconnect' between what cases actually require and what the law firms are equipped to provide.

[snip]

"Trial attorney and certified computer forensic examiner Craig Ball of Austin, TX, has seen a marked increase in the use of forensically qualified imaging to preserve data prior to litigation rather than in reaction to it."

NOTE: This article also says: "Computer forensics is still a young science that's being shaped by the electronic-discovery rules as they continue to evolve and change. This expanding industry simultaneously presents huge opportunities and great responsibility."

"Exterro Gets E-Discovery Down to Business"

Quite readable article about new litigation software -- "centralized management of litigation lifecycles" -- with helpful "show & tell" screenshots:

"Exterro isn't the first software vendor to apply a business-process-management approach to the legal discovery process, but with the launch of its flagship product Fusion, it is breaking new ground with a solution that combines BPM with collaboration capabilities and centralized management in an integrated environment.

"Aimed at law firms and corporate legal departments, Exterro's newly unveiled Fusion is essentially a portal for controlling the discovery process. However, Exterro's chairman and CEO, Bobby Balachandran, prefers to call it a litigation-support-management platform, from which his customers can monitor progress, track costs, set and manage schedules, and evaluate vendor performance.

"'During complex litigation, negotiations or time-intensive governmental investigations, the process of managing legal teams needs some automation, otherwise it all just gets away from them,' Balachandran says. 'We're trying to bring reliable management control and predictability to a process that is typically loaded with surprises and unexpected costs.'"

BTW, there's currently an open position for Litigation Support Consultant (scroll down; position is in Chicago or Portland with flexible work hours!).

ALM Event: Trial Tactics & Technology

Hey, the name alone, T3, makes me want to attend this ALM event. An then there's that ediscovery mock trial:

"The American Lawyer, Corporate Counsel and Law Technology News, together with ALM Events, present T3: Trial Tactics & Technology.

"T3 will be held in Chicago on May 31, 2007. Due to high demand, it will also be presented in London and New York City in November 2007."

"EDD Rules: Fact or Scary Fiction?"

What do you think about all the EDD news? Too much hype? Or information you really need?

"Wherever you turn these days, there seems to be a new CLE seminar being offered or white paper being written on the 'sweeping changes' to the Federal Rules of Civil Procedure as they relate to the discovery of electronically stored information.

"And most of them are tied together by a common thread: an alarmist air of hype.

[snip]

"Many e-discovery vendors would have people believe that the landscape surrounding electronic discovery has completely changed. From this author's perspective, that's a gross exaggeration of the truth designed to stir up angst (and business) in the legal marketplace. That said, the amended rules do offer important guidelines about the relevance, discoverability, production and costs associated with electronic discovery. The trick, as in much of the legal game, is to know how to separate fact from fiction."

Author Sean M. Byrne is a business development manager with UHY Advisors FLVS Inc. Since 1998, Byrne has worked as a practicing litigator and litigation consultant.

"E-Lawyering Requires Rethinking Technology and Law"

Great article about the new federal discovery rules, describing these changes in an understandable, even humorous way:

"This changes everything."

"Those three words, wafting on the familiar, buoyant tones of the actor saying them, have staying power. No survivor of the dot-com boom of the 1990s could forget William Shatner's ubiquitous ads on behalf of a certain online travel company.

"Indeed, online booking did change the travel industry. When was the last time anyone had a paper ticket, or called a human travel agent just to check flight times? Buyers and sellers of books, music and news all have seen the same cataclysm in their business models -- a subtle but certain shift from dialing a phone number or visiting a store to signing in, logging on and clicking a mouse.

"And, in fact, e-commerce lawyers are included in this migration to technology. Just as e-commerce has disrupted the travel, music, book and news retailing industries, the influence of technology on business and the law has also wrought havoc on our legal system. [Emphasis added.] Certainly, the law has always had to adapt specific rules for new technology.

"Today, the pervasive role that technology has assumed in business and legal practice, as more and more of our daily lives are lived online, provides a more fundamental challenge to how attorneys practice business law. In an age when 'paper file' has become an anachronism and an oxymoron, business law and the way it is practiced have required more than just tinkering with particular rules."

Author Stanley P. Jaskiewicz, a business lawyer, helps clients solve e-commerce, corporate, contract and technology-law problems, and is a member of the Board of Editors of Internet Law & Strategy \'s sibling newsletter, E-Commerce Law & Strategy.