e-Discovery Craftsmanship

e-Discovery software abounds, and more packages are coming on the market weekly. Gartner, an IT research and advisory organization, estimates that the e-Discovery software market in the U.S. will reach $1.5 billion by 2013. With many options to choose from, it seems that the key to running a successful e-Discovery project is to simply select the correct software package. Nothing could be further from the truth.

e-Discovery software is a tool. Like any tool, a skilled craftsman needs to wield it in order to produce a successful result. Given the complex nature and multiple nuances of e-Discovery, the skill level of the project manager is much more important than the software tool or tools selected to accomplish the job.

A case in point – de-NISTing.  NIST stands for the National Institute of Standards and Technologies, a U.S. government agency tasked with settings technological standards. Four times a year, NIST releases a library of software signatures (hash values) for system and other common computer files. This library is routinely incorporated into e-Discovery software tools to automatically filter out files that are not likely to be relevant to a matter, in order to reduce the number of records that need to be reviewed (hence the term de-NISTing). Since review costs make up between 60% and 80% of a typical discovery budget, using automated techniques such as filtering with the NIST library can result in significant cost reductions.

This all sounds great. However, a recent examination of the NIST library revealed that it does not include signatures for Windows 7 system files or Microsoft Office 2010 files. Current estimates indicate that over 350 million computers are running Windows 7, and over 100 million run Office 2010. This means that using the common de-NISTing technique on a Windows 7 or Office 2010 machine may not filter very much, leaving a lot of irrelevant records that need to be dealt with some other way.

If a project manager simply relies on e-Discovery software that incorporates de-NISTing to take care of irrelevant system and program files, without a clear understanding of what needs to be accomplished or any means of reviewing the results produced, the number of records subjected to subsequent review may be significantly higher, resulting in dramatic e-Discovery cost overruns.

For more information on the role e-Discovery software plays in the larger e-Discovery process, contact Wortzman Nickle.

Wortzman Nickle at North America’s Largest e-Discovery Conference!

On Monday, September 19, 2011, Sedona Canada, the Law Society of Upper Canada, the Ontario Bar Association, the Advocates Society and the Ontario e-Discovery Implementation Committee collaborated to present “The Ontario e-Discovery Institute: e-Discovery for All Cases and All Lawyers” in Toronto, Ontario. Reported to be the largest e-discovery conference in North America, over 610 people attended in person or by live webinar. It was a very diverse audience from across the country, illustrating a very real interest in all things e-discovery.

Susan Wortzman and Susan Nickle participated on panels on “e-Discovery Negligence” and “Cost Containment and e-Discovery”, respectively. Other panels featured Canadian and American judges and masters, members of the Bar from across Canada and the United States, vendors and litigation support professionals. This multi-perspective approach led to interesting and spirited discussions about privacy, cost-containment, emerging technologies, and other topical e-discovery issues.

Stay tuned to our blog as we feature some of these issues in upcoming posts!

Effective Records Management – Part 2

Part one of this series considered the current state of affairs that businesses in Canada find themselves with respect to managing records. This part outlines the steps involved in implementing a practical records management program.

The basic steps involved in developing a practical strategy that will be used by an organization’s employees are:

1. Assess the way records are currently managed.

2. Report findings and recommendations.

3. Draft policies and classification/retention plans that suit the organization’s records management culture.

4. Carry out a strategic planning session to determine how to implement the recommendations/create the implementation plan.

5. Implement the plan.

6. Train staff.

7. Audit and evaluate the records management program on a regular basis.

Assess the Way Records are Currently Managed

Every organization is different. Within each organization, business units, groups, and individuals all have their own ways of dealing with the vast amounts of information that pass their desk on a daily basis.

To interest people in managing records differently than they do now, the solution must satisfy the principle of local value. In other words, what they get out of the solution must exceed what they put into it. People have limited time, limited energy and limited enthusiasm. If they have to spend more time managing records, they must stop doing something else. The value it delivers must exceed what people have to put into it. Otherwise they will not bother.

Implementing an enterprise wide records management strategy is a change process. To be successful, we need to change attitudes and workflows and tools. People need to change how they see records from a personal attribute to a collective, from a source of personal power to a source of company power, and from something acquired in the classroom to something acquired every day through work. If people can understand this with their heads and grasp it in their hearts, then the change will be successful.

As this is a very personal equation, it is imperative that a clear understanding of how people are managing records is known. The only way to accomplish this is to speak to the people in the trenches. In our experience, this is most effective when the interviewer is from outside the organization – employees are less inhibited and more candid when there is no perceived threat of being singled out for “not following the rules”.

Part 3 of this series will delve into developing an effective records management strategy.

Effective Records Management – Part 1

Digital information in today’s businesses is threatening to overflow the banks of the information rivers. The 2010 edition of IDC’s Digital Universe report shows that information overload is not some future catastrophe waiting around the corner – it is here now, staring us in the face.

This explosive growth translates not only into higher cost related to storage, and with higher workplace inefficiency when searching for information. To compound the problem, records managers and CIOs must cope with a diverse and decentralized collection of both legacy paper and digital information. For example, a company’s payroll records may exist concurrently as reports in paper form stored at some off site facility, as Excel spreadsheets stored on centralized servers, individual employees’ computers, and as attachments to emails, and within a third-party, cloud based payroll system.

Most organizations are basically treading water right now – while the information tidal wave is upon them, their efforts are focused on plugging holes, not stemming the tide. To move forward in a proactive way, organizations need to develop an enterprise records management program.

Within most organizations, individual groups tend to develop their own way of managing records. In some cases, this is even left to individual employees, usually with difficult consequences when an employee leaves and someone else takes over that position. Although information is information, it is common to see the management of digital records treated differently than paper records. Organizations with long-standing records management strategies are struggling, as they try to force terabytes of digital records to fit within an archaic and usually complicated system original designed to manage a few 100 boxes of paper.

Lack of consistency and simplicity, combined with the abundance and ever growing volume of digital records, makes it difficult for even the most proactive companies to achieve compliance. The answer to this dilemma is simple – organizations must adopt a single set of records management policies coupled to a simple plan that governs all information, regardless of the data format or location. By implementing standard, enterprise-wide practices for classifying, retaining and destroying records, a company lowers its risk of non-compliance and increases its efficiency, reducing costs. These policies form the backbone of any compliant records management program.

In practice, implementing these strategies can be fraught with potholes. In part 2 of this series, we’ll discuss the steps involved in developing a practical ERM program.

Information Overload

Recent studies and articles make the case for better information management:

• Information workers, who comprise about 63% of the U.S. work force, are bombarded each day with 1.6 gigabytes of information through emails, reports, blogs, text messages, calls and more.

• U.S. companies lose an estimated $900 billion a year in lost productivity because of information overload.

• The average knowledge worker — from computer programmers and rocket scientists to administrative assistants and accounting clerks — spends about 25% of the day searching for information, getting back to work after an interruption and dealing with other effects of information overload.

Information overload is escalating. While IT departments look for solutions, relatively few companies have policies and procedures in place deal with the issue or help their employees do so.

Here are some tips:

Take Control

Gaining control over the information can help ease the sense of overload.

Relying on interaction through the inbox takes away an individual’s control of the information that comes to them – they are at the mercy of information that other people deem important.

An alternative way to interact that gives an individual control over information that is most important to them is through the use of internal social-networking tools, such as shared web pages (known as wikis) and collaborative sites, such as those facilitated through SharePoint.

Another way to focus on what’s important is to set up alerts and feeds from disparate sources, based on keywords. Of course, this means more email, so it’s also important to set up rules to direct less important messages into specific folders that can be checked only when needed.

Control can also be achieved by assuming a proactive, rather than reactive, work ethic. Organize the day into blocks of time that are quiet, focused work, where email is not checked, and specific times when you check email. During the quiet times, post a do not disturb message for instant messages.

Prioritize and Organize

Plan how to manage the messages as they arrive. Messages that can be dealt with in less than two minutes should just be taken care of and then deleted immediately. If the message requires more time, delegate it or defer it. If the message is deferred, move it to an action folder or a to-do-list (Microsoft Outlook has the ability to easily flag emails for follow up in the future).

Send Less

It’s a well understood principle – the more email you send, the more you get. Here are some specific ways you can better manage the information flow:

• Reduce word count. Sending concise email messages with clear subject lines.
• Put necessary tasks at the beginning of the message, to avoid the recipient being unsure what to do.
• Don’t hit “reply all” unless absolutely necessary.
• Send “thank you” emails, and never “reply all” for those.
• To decrease interruptions, turn off “new email” alerts and cancel the “new mail” alert on your desktop.
• Sort your inbox by sender, or create a rule to mark messages from key contacts in different colors.

While individuals can take control on their own, organizations that have well written, established and enforced policies and procedures will find that information management has been streamlined. These organizations will be rewarded with increased productivity.

e-Discovery Literacy

“The illiterate of the 21st century will not be those who cannot read and write, but those who cannot learn, unlearn, and relearn.” Alvin Toffler

Rapid changes in technology make this quotation particularly true in the e-discovery realm.  New approaches, different digital sources of information, new and improved technology, and the practical realities of limited resources all challenge litigators to approach each file in new and innovative ways to minimize the costs of discovery. In short, one size does not fit all.

The moral of this story is to stay flexible. Be adaptable. Don’t get tied down to one approach, one tool, or one piece of software. In the words of Toffler, “learn, unlearn and relearn” to ensure that all of the phases of discovery are conducted in the most timely and cost effective manner possible. This is simple but not easy. It requires e-discovery literacy - a commitment to stay current on new and emerging discovery approaches and technologies: early case assessment, processing, predictive coding. Your law firm and your clients will thank you.

If you don’t know what’s out there, ask your IT department, a forensic vendor, or call us. We’re always happy to discuss all things e-discovery.

Records Management 2.0

How do organizations manage their important business and legal records. If they have an information management systems (less than half of the top 1000 companies in Canada do), it is not deployed across the entire enterprise, Most are being used as repositories to store even more copies of the records. The conventional wisdom in most organizations is just to keep everything, since it’s cheaper to store electronic content than it is to dispose of it. This is proving to be a falsehood.

When asked, the vast majority of business executives do not even consider records management to be worth consideration. The reasons for this are complex, but a recent study by AIIM revealed that:

• Information with content that would classify it as a business record is being created by knowledge workers 24-7;

• Content is created on a variety of corporate and personal laptops and smart phones

• Content is often stored on external servers and social media managed by third parties

• The volume of business records is increasing exponentially

• Business records are less taking the form of traditional documents, and are more taking the form of conversations in instant messages, tweets, chat rooms, discussion forums, etc.

• New communication channels and devices are introduced into the organization by knowledge workers leveraging consumer IT since enterprise IT is considered slow and tedious

Traditional principles from “paper-based” records management don’t work anymore. Volume alone is killing the manual processes, and the nature of the records is preventing organizations from specify how they should be stored or managed.

This lack of vision, combined with a non-workable existing records management strategy, has led to a chaotic collection of digital records. Systems such as Sharepoint offer promise, but are not being utilized effectively (most shared drives and SharePoint sites look like a digital landfill with little or no control).

Email is probably the largest contributor to the current mess, but is by no means the only variable. Massive duplication of records is quickly becoming the largest source of headaches for enterprise IT personnel.

The key to solving this dilemma is to move beyond the paper paradigm for records management. But how can this be accomplished? One way is to give Records Management a direct connection to a C-level executives, so that decisions involving risk are mitigated. Records Management also needs to shift to more of a “disposition management” focus – managing risk (and storage costs) by thinking about what goes rather than what stays.

The first step is getting help to figure out how bad the mess is, and what can be done to clean it up. Wortzman Nickle can show you the way.

Web Surfing During Work Hours Increases Productivity

Concerned about declining workplace productivity, many organizations are implementing “no web surfing” policies. Intuitively, this seems like a good idea. However, in practice, current research shows that allowing employees to surf the net during work hours may actually increase productivity. In fact, banning the practice is actually counterproductive, as surfing time under such policies actually increases!

As reported in the Globe and Mail on Wednesday, August 17, 2011 (Report on Business/Careers B17), various studies confirm that surfers report “significantly lower levels of mental exhaustion and boredom and significantly higher levels of psychological engagement on a questionnaire”. Further, the study found that such surfing was found to be related to “such upbeat mental states as being excited, interested, alert and active”…as opposed to “negative mental states such as feeling distressed, fearful, hostile, and jittery.”

However, all web time is not created equal. The study confirmed that time spent by employees reading and answering email was found to produce negative rather than positive mental states. Ultimately, the article urges companies to compromise and to find a balance – to permit periodic web surfing while limiting time spent on personal emails.

Wortzman Nickle – All Now Equipped With iPad 2s

Wortzman Nickle recently equipped all staff with iPad 2s. These data consumption tools will help to further streamline and enhance the services Wortzman Nickle provides to our clients.

Apart from reading the Globe or playing Angry Birds, the iPad is revolutionizing the way we access digital information. This is especially true for information junkies. Compared to other tablet devices, the quality iPad design is unsurpassed, and it simply works better – its faster, less glitchy, and far more intuitive than the competition. Even our kids love it.

The usefulness of the iPad is directly related to how well it’s wielded. This is exemplified by the “Apps” that are installed. There are currently over 350,000 official, Apple-approved apps that can be installed on the iPad. While all of these have been vetted by Apple to ensure they do not contain viruses, Apple does not scrutinize Apps for usefulness or usability. No question, there are some real stinkers out there as well as some gems. To separate the wheat from the chaff, and help you to use your iPad to the fullest, we’ve listed some easy to implement tips:

• Security – although the iPad is relatively insulated from threats such as viruses and trojans, due to its portability and popularity, it is a frequent target of theft. To ensure that the valuable and confidential information you access from your iPad is secure, there are simple steps to implement.

1. Set up a passcode. The iPad allows you to configure either a 4-digit simple passcode or a more secure, alphanumeric passcode. Just like the password you use on your computer, for maximum security, your passcode should be alphanumeric and include both upper and lower case characters, as well as numbers and punctuation. A passcode of at least 8 characters is recommended.

2. Once you set up the passcode, you’ll also want to set the AutoLock time. We’ve found that 15 minutes is a good compromise between usability and security.

3. Finally, in case your iPad does go missing, Apple has create a useful little app called “Find My iPad”. Once installed and configured, you can log into Apple’s website from any computer, enter your username and password, and locate the exact position of your iPad. You can also remotely lock the iPad, or, in a worst case scenario, remotely wipe the iPad’s entire contents.

• File Sharing – There are a number of ways to move files between your iPad and your other digital devices. We’ve found two of the best are DropBox and Evernote. Dropbox is a cloud based storage repository. On your PC, it appears as a folder that you can drag files into and out of. On your iPad, the files appear within a foldered list, and can easily be transferred to other Apps for markup.

  Evernote is a note-taking App on steroids. It lets your photograph a document using the iPads camera, and will automatically OCR it. You can transfer text and pictures directly from websites, and use it to take notes.

  iAnnotate and Goodreader are PDF readers that are extremely popular with legal types. Both apps allow the user to enter fully integrated notes, highlights, sketches, drawings and more into PDFs. Both apps also work well with Dropbox. You may consider purchasing a stylus for your iPad to make the most of these apps.

• One obvious use for the iPad is as an e-Reader. Apple makes the iBooks App, but there are several others that outshine iBooks. If you have an account with Amazon, you can install the free Kindle App, essentially turning you iPad into a Kindle device. If, on the other hand, you obtain your eBooks from multiple sources, the app of choice should be Stanza. This is by far the most highly rated eBook reader for the iPad.

• Finally, the iPad is a superb email device. It will let you simultaneous view your email from multiple accounts, and will optionally group email threads together. The interface is very simple and easy to use. However, with that simplicity comes a danger – the trash can button is very easy to accidently push. To avoid deleting emails that you didn’t really want to delete, make sure you turn on the feature to prompt you before deletion – its located in the mail configuration section of the settings App.

It’s important to remember that the iPad is really “just” information consumption (rather than creation) device. In the context of document creation and manipulation, a laptop or netbook provide superior functionality. The iPad does not replace your computer or smartphone, but it is an amazing supplement and complement to those devices.

Predictive Coding Demystified

Predictive coding has received a lot of attention lately as the next great magical wand in the e-discovery bag of tricks. However, as with any new technology, there are a number of different implementations and marketing claims that are confusing the whole picture of how this system can help make the e-discovery process more efficient and ultimately reduce costs.

In a nutshell, predictive coding involves the application of sophisticated artificial intelligence to permit the computer to make suggested determinations based on human interaction and the content of documents.

All predictive coding incarnations basically involve the review lawyer coding a subset of the records in the collection. The system examines the decisions made by the reviewer and identifies properties of the documents that it can use to automatically make determinations. As the reviewer continues to code documents, the system predicts what the reviewer will code. When the system’s predictions and the reviewer’s actually coding coincide (within reason), the system has learned enough to make confident predictions on its own.

Predictive coding is being applied at several stages in the e-discovery analysis and review processes:

Culling: In this mode, a lawyer who is an authority on the matter makes relevance decisions on a subset of the records. Once a sufficient number of records have been reviewed (typically a few thousand), the system applies its predictive analysis to the entire set to cull out the records most likely to be relevant. These records can then be subjected to the normal, manual review process.

Subjective Coding: The predictive coding system examines the subjective coding decisions made by lawyers as they manually review records. When a sufficient number of records have been reviewed, the system will start to make coding suggestions for subsequent records to assist the lawyers.

Review Quality Control: Along the same lines as predictive subjective coding, the system uses the subjective coding decisions made by lawyers to predict how documents should be coded. However, instead of suggesting codes for un-reviewed records, the system will apply the predictions to all manually coded records and identify those records where its predictions and the actually coding diverge. This will enable reviewers to zero in on documents that may not be coded correctly.

Prioritization of Records for Review: Predictive coding can also be used to prioritize records in a review. Once a sufficient number of records have been manually reviewed and coded, the system can group un-reviewed documents based on its coding predictions. The review project manager can then group all documents likely to be coded relevant, for instance, and assign these to be reviewed first.

Predictive coding technology is also being considered in several electronic  records management solutions to permit automatic classification of records, removing the burden from individual users.

This technology is being incorporated into more and more e-Discovery software systems, and may soon become a standard way to cull and review electronic data.

For more information on this technology and other cutting-edge e-discovery solutions, contact us.