While products were not much changed, we did note a change in the way the products were promoted.  Many vendors began their sales pitch by telling us why their competitors’ products did not work, and only their own products could meet our requirements. Perhaps this was due to it being a primaries year in the U.S., or it was a result of the lack of progress in software design since last year. Whatever the reason, it did somewhat dampen our overall experience. We most appreciated the vendors who proudly demonstrated their own wares without slamming the product next door.

The lack of real innovation may be due to a maturing e-Discovery industry. But, we are still optimistic as both products and processes continue to improve.  The goal remains to develop solutions to reduce  the cost and effort to identify, collect, review and produce electronic information.

It is widely expected that cloud computing and social media will have a significant impact on the way e-discovery is conducted. However, the study showed that it’s not high on corporate IT’s radar quite yet. In fact, it was found that:

• Less than 16% of respondents put an e-discovery plan into place before moving data into the Cloud
• About 26% did not put a plan in place
• A whopping 58% didn’t know if e-discovery was considered when data was moved to the Cloud (which probably means it wasn’t considered)

While the number of players in this area is still quite low, this report should be a wakeup call that organizations need to consider e-discovery in conjunction with the adoption of new technologies.

Wortzman Nickle can help you navigate through the ocean of new technologies and their impact on e-discovery and records management.

1. Records Management is Everyone’s Role: the volume and diversity of business records, from emails to reports to tweets, means that the person who creates or receives a records is in the best to classify it. Everyone in the organization needs to adopt the records management programme.

2. Don’t Micro-Classify: having hundreds, or possibly thousands of records classification categories may seem like a logical way to organize the multitude of different records in a company. However, the average information worker, whose available resources are already under pressure, does not want to spend any more time than necessary classifying records. Have a few, broad classifications makes the decision process simpler and faster.

3. Talk the talk from the top on down: A culture of compliance starts at the top. Businesses should establish a senior-level steering committee comprised of executives from legal, compliance, and information technology (IT). A committee like this signals the company’s commitment to compliant records management and ensures enterprise adoption.

4. Walk the walk, consistently: For compliance to become second nature, it needs to be clearly communicated to everyone in the organization, and policies and procedures must be accessible. Training should be rigorous and easily available, and organizations may consider rewarding compliance through financial incentives, promotions and corporate-wide recognition.

5. Measure the measurable: The ability to measure adherence to policy and adoption of procedures should be included in core business operations and audits. Conduct a compliance assessment, including a gap analysis, at least once a year, and prepare an action plan to close any identified holes.

The growth of data challenges a company’s ability to use and store its records in a compliant and cost-effective manner. Contrary to current practices, the solution is not to hire more vendors or to adopt multiple technologies. The key to compliance is consistency, with a unified enterprise-wide approach for managing all records, regardless of their format or location.

Decades of technological advances (along with a few spoliation issues, problems responding to information requests, and a pending sanctions motion or two) have led the United States Government to plan significant records management reforms.

Noting that the proliferation of technology and electronically stored information has “radically increased the volume and diversity of information that agencies must manage”, the U.S. government plans to develop a “21st-century framework” for records management, citing the following benefits:

- performance improvement

- the promotion of openness and accountability by better documenting agency actions and decisions

- lower costs

- better management of records (fewer lost records) and easier to use and share

- reduction in redundant efforts

All of these benefits apply in the private corporate context as well. In any event, if the U.S. government can prioritize and execute defensible records management, your organization can too.

A shocking prospect?  Consider this:

Hearing reports that employees were spending hours each evening to manage their email, and that middle managers spend 25% of their time just searching for information, and estimating that only 10% of all emails are corporately useful, the company has taken the position that email “pollutes the work environment and encroaches into personal lives.” 

The CEO, Thierry Breton, notes that email has been largely substituted by social media solutions – leaving only 11% of young people (age 11-19) using email. In his view, this renders email “outdated”. Breton estimates that within two years, updates to and editing of existing digital information will create more than half of all new digital content.

To replace the email, Atos Origin is piloting a variety of social network solutions, most of which allow sharing and updating of information by employees.

What’s next? We’ll keep you posted.

When law clerks describe “a small document” collection, the usual approach is to either print everything out for review, convert everything to tiff images, or review the native files without any special, e-discovery tools. As anyone who reads this blog (and countless others on the net) knows, these are the least efficient, and most costly methods, regardless of the collection size.

While it will not cost hundreds of thousands of dollars to deal with a small volume of electronic information, e-discovery methodologies developed for large document cases, including near duplicate and email thread grouping, statistical sampling, predictive coding, and content analysis, can be equally applied to small cases to ensure that the overall discovery cost is as low as possible.

For example, a 10,000 record collection would require a review of about 400 records in order to apply predictive coding or statistical sampling. Given the current pricing of the various predictive coding solutions, it would cost under $500 to analyse this data. Combine that with about 10 hours of lawyer time to review the 400 documents, and you would have your records all sorted and prioritized. You can then shave off the ones that are likely to be irrelevant, skip the ones you’ve already reviewed, and probably spend another 10 hours or so reviewing the rest. Compare that to the cost to print out 10 bankers boxes of paper, along with the manual (and tedious) lawyer review, and you can clearly see how this approach can save thousands of dollars and millions of brain cells.

Wortzman Nickle can add value to any size case. Call us to find out how.

The New York State Bar Association has come to the rescue with comprehensive, practical e-discovery guidelines. These 14 guidelines, among the first of their kind at the state level, were designed to assist counsel in navigating the complex world of electronically stored information, and to prevent inadvertent spoliation.

The guidelines place considerable emphasis on preservation and legal holds. Given the number of spoliation cases in the state, perhaps this focus is understandable. Other aspects covered include the reduction of e-discovery costs through appropriate retention and collection strategies, and the importance of counsel understanding their client’s technology. Notably, there is a significant focus throughout the guidelines on the use of electronic tools, and counsel’s responsibility to understand and utilize technology.

While these guidelines do not deviate from known best practices for discovery, they are written in plain English and are very practical. Notwithstanding different rules of procedure in Canada, they have utility for Canadian lawyers as well. We will watch with interest as decisions emerge under these new guidelines.

Susan Nickle:  “The Rhino and The Mosquito” by Craig Postons.  This marketing book shows how to differentiate your business in large and small ways. The premise is – do you believe an action is too small?  Consider the impact of a mosquito in your room at night.

Susan Wortzman:  “Rules of Civility” by Amor Towles. Set in New York City in 1938. I was upset on the plane when my Kindle died….

Luisa Sicilia:  “Eat, Pray, Love” by Elizabeth Gilbert.  I am enjoying the way Elizabeth uses her humor and insight throughout her journey, and I am looking forward to continuing her journey to “pray” and “love”.

Chuck Rothman:  “Northwest Africa: Seizing the Initiative in the West” by George F. Howe. It’s a “riveting” story about how the U.S. Army entered World War II in Europe. It’s actually kind of boring….I hope it gets better (I hear the Allies win in the end, but don’t quote that – I don’t want to ruin the story for anyone else).

Rachael Chadwick:  Just finished “Legal Project Management” by Steven B. Levy.  A very practical read.  Now I’m reading “Half Blood Blues” by Esi Edugyan, which just won the 2011 Giller Prize.  I’m already loving it.

This tendency to save everything hampers an organization’s ability to properly manage those records that should be kept. Timely disposition of expired records ensures that information that should have been destroyed will not be swept up in a wide reaching legal discovery exercise during litigation or compliance exercises. Thus, de-duplication and timely disposition reduces potential liability risk while lowering operational costs, thereby benefiting the organization twofold.

Once business records are separated from disposable non-records and only one copy is maintained, they need to be classified for filing and applying retention periods. Retention schedules are determined by legal, compliance and operating requirements of the organization, must be consistent, apply the same classification system to both paper and electronic records.

Companies should implement a centralized records system to provide a single point of control and consistency for all of their records, be they on-site or off-site, paper or electronic.

With a single software solution, companies can:

• Manage records throughout their entire lifecycle
• Reduce their overall storage costs
• Mitigate legal, regulatory and compliance risks and provide clear audit trails
• Streamline record retrieval for both on-site and off-site records
• Generate standard and ad-hoc reports
• Extend enterprise content management or document management investments

Ultimately, to be successful, records management must be integrated into the daily operations of the business.

Reality Check: while all of these technologies help to wade through the continually growing volume of electronic information, they are really only options which must be considered by those charged with the management of large volumes of electronic data. Leading edge technology is not for everyone, nor for every case. Even where its application will reduce costs and effort, there must be a balance struck between technology and human resources.

Introducing new technology into any process is fraught with uncertainty. To alleviate some of this uncertainty and ensure that the proper tool is selected for each job, Wortzman Nickle systematically analyses new and existing technological tools that assist in large volume document reviews. We know what technology will provide real benefit in any given situation, and will actually assist, rather than deter, human reviewers to get the job done faster, more accurately, and cost effectively.

Whatever role technology plays in any litigation search, and however sophisticated it becomes, human review will always retain a place alongside the technology as a way of getting quickly and efficiently to the document set that matters. If we leave aside those who sensibly and genuinely see the need to consider all possible ways of handling documents efficiently, there are growing external pressures on the rest to do so; they include increasingly active management by judges, competition with others for client business and,  in some cases, mere survival as a litigation practice.

If you have any questions concerning litigation technology, reach out to Wortzman Nickle for help.