e-discovery 2.0

There has been no shortage of articles in the e-discovery blogosphere about the Qualcomm case (heck, we’ll even own up to jumping on the bandwagon and writing a couple ourselves). However, if in the rush of events leading up to LegalTech you haven’t had a chance to read the details of U.S. Magistrate Judge Barbara Major’s recent sanction order, it’s worth taking a few minutes to read through it (or, for an excellent overall summary, see this article on law.com).

The most striking aspect of the judgment, which is completely overlooked by many vendor articles seeking to spin it to their advantage, is the fact that this case wasn’t about a failure of e-discovery technology. It wasn’t about the attorneys not thinking enough about the best keyword strategy, or not understanding the need for conceptual search to ferret out additional responsive documents. Rather, at a key point in the trial, 21 highly relevant emails were discovered, but according to the order, “the Qualcomm trial team decided not to produce these newly discovered emails to Broadcom, claiming they were not responsive to Broadcom’s discovery requests.” Judge Major goes on: “The attorneys ignored the fact that the presence of the emails…undercut Qualcomm’s premier argument…The Qualcomm trial team failed to conduct any investigation to determine whether there were more emails that also had not been produced.”

Assuming that all of the facts are before us, this was not a computer algorithm problem. It was a human judgment problem.

Don’t get me wrong. Leveraging the right e-discovery technology is important, but not in the way that many vendors would have you believe. Search and analysis is becoming table stakes. What’s needed today are solutions that provide a system of “checks and balances” to track and monitor documents throughout the discovery process, making it harder for documents to be overlooked or ignored in the way that they seem to have been by the Qualcomm team – while enabling enterprises to have more ownership over all aspects of e-discovery.

Such technology will be the enabler, but in the end, it will be people – very likely in the form of an e-Discovery Team – that will save you from Qualcomm’s fate.

No, not him. I mean the other Barack from Chicago.

Two days, 4 customers, 7 journalists, 4 bloggers, 3 analysts, 5 partners, 3 breakfasts, no lunches, 4 dinners, 2 parties, many drinks, countless hallway conversations…and 2 aching feet. That’s what LegalTech 08, held in New York earlier this week, was like for me ⁽¹⁾. If traffic at our booth is any guide, then attendance was up significantly from last year. Despite having 3 demo stations, we frequently had people lining up to see the product. And the wait time for an elevator must have broken the 10 minute mark!

Fun as it was, LegalTech is anything but inexpensive. Even a medium-sized booth in an undesirable location costs over $11,000. Add to that the cost of travel, booth rental, and accommodation in one the world’s most expensive cities, and you can easily end up spending three times that amount. Hence the obvious question: is it worth it?

The answer largely depends on what you expect from the show. If lead generation is your exclusive focus, then most tradeshows are a poor investment. No matter how many contacts you zap with the scanner, the cost per lead is probably far higher than other methods of demand creation.

To my mind, the true value of an event like LegalTech is that it gathers everyone together, tears them away from their laptops (if not their Blackberries), and puts them in a frame of mind to think about new things. By simply putting yourself in the flow of ideas, you can identify new trends, explore new partnerships, learn what the competition is saying about you, and generally gather information that will help you make better decisions.

What price can you put on that?

⁽¹⁾ I’m sorry to say that the one item conspicuously missing from my LegalTech list is the conference sessions themselves, only because there was not time. I was particularly sorry to miss the keynotes given by our customers, Pallab Chakraborty from Cisco and Jay Brutz from GE, two of the most insightful opinions you can hear about e-discovery in the enterprise.