e-discovery 2.0

Today’s questionee is Monica Bay, editor-in-chief of Law Technology News. Not only is she the author of The Common Scold, Law Technology Now podcasts, and co-author of the EDD Update blog, but she is also a rabid New York Yankees fan (as you will see below).  Let’s get to the questions.

1) As a lawyer, what advice would you give litigation support professionals to them to help foster more successful and productive litigation support-lawyer relationships?

In June, I wrote “Can You Adapt?” in Law Technology News which explores the changing terrain of EDD support staff. Increasingly, vendors, law firms and corporate counsel are hiring lawyers to handle e-discovery, particularly the review phase. This is creating tremendous opportunities for both attorneys and non-attorney professionals to further develop their careers, and make a whole lot of money (we’re already seeing poaching).

As for advice, it is the same I would give anyone in any job. Think baseball:

• Be a team player: It’s about the team, not the individual. You win and lose as a team. (See, Derek Jeter).
• Play your position well: Make yourself indispensible… be reliable, accurate, prompt, and anticipate needs. Raise your hand when there’s a job nobody wants to do because it’s too complicated or detailed. Extra points for utility players (See, Miguel Cairo).
• Home runs are great, but small ball wins more games. Watch the details. (See, Tampa Bay Rays)
• Take pre-emptive strikes: If you screw up, tell your boss immediately. It is far better for YOU to bring it to your boss than the reverse. Don’t try to hide problems (See, Tanyon Sturtz).
• Bring answers, not problems. Don’t whine. Instead of complaining about problems to your boss, come to her with alternatives. Show initiative and ingenuity. (See, Derek Jeter, Joe Girardi)
• Be low maintenance. ‘Nuf said. Even Manny got traded for being a pain. (See, Jeter, Abreu, Nady, Posada, et al)
• Don’t sit back and wait to be noticed. Ask for promotions. Do your homework, know the market, don’t take the first offer - negotiate. This is particularly important for women, who traditionally haven’t been encouraged to be assertive. (See Joe Torre, Joe Maddon)
• Don’t exaggerate your own importance. (See, Scott Boras, re: B. Molina, Rodriquez, etc.).
• Be loyal, work hard, kind, considerate, passionate, diligent, and work smart (See, Derek Jeter)

2) Socha-Gelbmann abandoning their existing ranking system: Good or bad (or both), and why?

Good.  George Socha and Tom Gelbmann, creators of the Socha/Gelbmann E-Discovery Survey, have said that they are rethinking how they rank, because too many folks were “foolishly” simply relying on their reports rather than doing the necessary due diligence to be sure they were buying the right products. I applaud them and look forward to the next iteration.

3) Helping strengthen the legal technology community is obviously a big passion of yours. Any new issues you are championing?

My latest crusade is the result of recent disheartening news reports that document severe gender gaps in pay for members of our profession; as well as the latest statistics about how painfully difficult it is for minority lawyers to climb partnership ranks, especially in large firms. Even among paralegal ranks there is a gender gap, which is especially ridiculous because that’s an area dominated by women.

There are no easy answers to these problems, but we simply must address them. In our October issue, I challenged every law firm managing partner, vendor CEO and company GC to immediately remedy gender pay gaps in their shops. There is no excuse for those. Solving the issue of obstacles facing career growth for women, minorities, gays and lesbians is a more challenging and nuanced problem, but one that we simply must make a top priority and continue to address. We cannot give up. It is only right and just. I wrote about this in our November issue, and will continue to keep it front and center in LTN.

4) Since it’s Halloween, we’ll ask a scary question. In your view, is e-discovery in its current state a help or a hindrance to the legal system?

The short answer is that it’s both. But e-discovery is here to stay, and the challenge before us is to work to develop systems and protocols that help us attain the real goal - to resolve disputes in a fair, speedy, reasonable manner.

I worry that litigation costs have so escalated that disputes today are being resolved more based on risk management assessments (e.g., the cost of the litigation) than the actual merits of the dispute.

5) Finally, be honest with us: How do you REALLY determine who gets to be in the President’s Corner?

Narrowing it down to the most newsworthy releases of the month, and then finding the one photo among all the finalists that’s actually in focus.

Concept or content search continues to be a hot topic within the e-discovery community.  There’s a continuous stream of articles that discuss it.  Some that point out the positive.  Others that point out the limitations.  The courts have also gotten involved in the discussion.  Judge Grimm refers to concept search in e-discovery in Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008).  Judge Facciola discusses concept search in Disability Rights Council of Greater Washington v. Washington Metropolitan Transit Authority, 242 F.R.D. 139 and other opinions.  Despite (or maybe because of) all the commentary on this topic, I find that while a lot of people think that concept search in e-discovery is good, many are not fully sure of exactly what concept search is, and how it is practically useful in e-discovery.   It’s pretty clear that after several years of commentary and hype, concept search has become something of a buzzword associated with many myths and misconceptions.  In an effort to better understand what concept search is and how it can help in e-discovery, I want to dispel two of the most common myths I have heard.

The “Concept Search is Concept Search” Myth

The first myth around concept search actually revolves around what it is.  In my experience, people tend to lump two different technologies together when talking about concept search: concept search and concept categorization.  It’s very common, for example, to see commentators say concept search even when what they are really talking about is concept categorization.  To make matters more confusing, people also use a plethora of other names including content search, content clustering or concept clustering when what they really mean is concept categorization.

So, what are the differences between concept search and concept categorization?  First, let’s start with concept search.  Concept search technologies find documents containing “concepts”.  I think that the Sedona Conference’s “Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery“, provides a good definition of “concept” when used in a search context: “the combination of [a] query term and the additional terms identified by the thesaurus.”  In other words, concept search technologies find documents containing a specified term plus additional terms with similar meanings derived from a thesaurus.

Concept categorization, on the other hand, is actually not a search technology at all.  Concept categorization technologies do not “find” documents.  Rather, they categorize or group documents based on their similarity.   There are many different ways to group documents based on similarity.  Techniques include statistical (which assesses similarity based on word frequency), Bayesian classification (which weights words differently depending on factors in addition to statistical frequency, such as where the terms appear in a document), and semantic indexing (which takes into account the fact that many words used in a similar context may have a similar meaning).  It would take more time to describe these technologies in detail but the Sedona commentary has a good summary of these different technologies if you are interested in learning more.

As should now be apparent, these technologies are very different and using the same words to describe them is confusing.  It’s why it’s not surprising that a lot of the users of e-discovery services and software don’t have a strong understanding of what these technologies are or what benefits they can actually provide in practice.  Dispelling the myth that they can be lumped together is a critical first step in any conversation about concept search and how it can help in e-discovery.  This leads us to a second myth, that Concept Search is better than Keyword Search.  I’ll discuss this in my next blog post.

I was in Seattle this week for the annual Association of Corporate Counsel conference.  And, from all external perspectives it seems like the dour economic climate hasn’t dampened the spirits of the legal and litigation support communities.  There were lavish parties, including an extravaganza thrown by Womble, Carlysle at the Space Needle, along with no shortage of the usual tchochkies, giveaways and over-the-top promotions - even though the general consensus from exhibitors was that actual attendance was down from last year.

Maybe the legal community is in denial.  Or perhaps, the sentiment instead is that tough economic times will result in more litigation and governmental regulation.  While this is certainly the optimistic viewpoint, the recent Fulbright & Jaworski Litigation Trends Survey at least provides some foundation for this rosy notion.

In Fulbright & Jaworski’s fifth annual survey, corporate counsel stated that they anticipate a litigation spike next year in both lawsuits and regulatory proceedings.  Among U.S. respondents to the most recent survey, 34 percent expect an increase in lawsuits involving their company and 25 percent anticipate more regulatory proceedings.

Speaking on behalf of the glass half full contingent, Stephen C. Dillard, who chairs Fullbright’s global litigation practice, believes that the survey results illustrate the shift from a long period of prosperity to the start of “a period of serious economic challenge that is likely to fuel litigation over who is to blame and who should pay for the consequences.”

Whether this prediction comes to pass remains to be seen, but at least the participants at the ACC conference seem to drinking the same Kool-Aid.  Whether that sugary drink is actually good for you or not, will be the question.

Let me know what you think.  Do you think the financial crisis will force litigation to increase, decrease, or stay the same and why?

E-Discovery search has become a hot topic of late (in blogs and in the news), and I think it’s pretty clear that the unwashed (attorney) masses still don’t really grok the importance of using a defensible search protocol.  Neither do they seem to understand the enhanced scrutiny that’s being applied by the judiciary.

Kipperman v. Onex Corp., 2008 WL 4372005 (N.D. Ga. Sept. 19, 2008) is another in what will assuredly be a long string of cases that demonstrate how easy it is for litigators to get wrapped around the axel of e-discovery search.  In Kipperman, the defendant (Onex) presented several motions to the court, including attempts to obtain relief from the need to produce email identified after searching several backup tapes.

During a previous hearing the court ordered Onex to search all the mailboxes on two tapes, as well as on an additional tape selected by Plaintiff. The court determined that despite Onex’s objections and representations, the backup tapes were “producing meaningful discoverable information.”  The court was nevertheless sympathetic to Onex’s burden and therefore weighed in with some guidance:

“The court did suggest, … , that Plaintiff be more artful with its search terms and that Plaintiff utilize a list of the people, provided by Defendants, to review whether all mailboxes needed to be searched.”

The court also gave Onex the chance to narrow the search terms.  Unfortunately, they didn’t seize the opportunity to provide a narrower list or a refinement of their search terms.  “As such, they agreed to search and restore all the mailboxes with the search terms provided by Plaintiff.”

Not surprisingly, Onex then sought relief from having to review and produce all of the results from the search because the “broad search terms resulted in thousands and thousands of irrelevant hits.”  For example, the search terms included the word “republic” which used to elicit emails regarding Republic Builders Products, one of the companies involved in this matter.

“Defendants claim that the search captured thousands of irrelevant pages due to one occurrence of the word ‘republic’ often related to Onex business interests having nothing to do with Magnatrax in the ‘Republic of France,’ ‘Republic of Ireland,’ and ‘Czech Republic’.”

Again the court reaffirmed their sympathy with Onex’s burden and yet denied the requested relief, in large part because Onex was warned about not being more “artful”:

“[T]he court is not unsympathetic to the massive amount of discovery involved in this matter, the considerable burden of working with it, and the overproduction that often comes with e-mail production. Therefore, the court gave Defendants numerous tools by which to reduce the burden of e-mail discovery, including an opportunity to limit Plaintiff’s search terms and an opportunity to provide a list by which the number of peoples and the number of boxes being searched could be reduced. Defendants did not take advantage of these opportunities. Defendants must now lie in the bed that they have made. Thus, Defendants’ objections on the basis of relevancy and volume are DENIED.” (emphasis added).

Needless to say, Kipperman is probably not all that atypical.  Attorneys everywhere have historically used blunt e-discovery search instruments and haven’t often run afoul of the judiciary.  Now, post Victor Stanley, et al, the playing field has changed dramatically.  It’s important to leverage best practices (from Sedona and others), craft a defensible search strategy, sample the results and “show your work.”  Missteps along the way, especially ones that the court has tried to help the parties avoid won’t be met with much tolerance

Last month, for the first time, friends of mine who do NOT work in the legal industry starting talking to me about e-discovery. In the past, they had always taken on the glazed look of a bored 8th-grader whenever I spoke about what I do. But suddenly, they were strangely interested and full of questions.

The reason was two articles about e-discovery in the mainstream media which appeared within a week of each other. The first was in the Wall Street Journal, which wrote about how tech firms are at war with lawyers. According to the Journal, the fact that companies are saving money by using e-discovery software is bad news for lawyers, since they are “facing the loss of lucrative client fees.” In response, the lawyers are fighting back: “The attorneys counter that there are pitfalls to replacing them. Early this year, a federal judge required chip maker Qualcomm to pay rival Broadcom more than $8 million after it failed to uncover and share emails relevant to a case.”

I am sure there are lawyers who see technology as a threat, but the firms I deal with are actively embracing e-discovery technology, not fighting it. They see it as another way they can add value to their clients, and would prefer to have their staff focused on practicing law, not mindlessly reading irrelevant documents. So I ended up spending a lot of time explaining to my non-legal friends that there are two sides to the coin. As for my friends who do happen to be lawyers, they focused on the Qualcomm case, pointing out (as we have written before) that the problem was not technology, but rather poor processes and bad judgment on the part of the attorneys concerned.

The second article appeared in the Economist and took a different tack. It argued that the stratospheric cost of e-discovery is gumming up the court system and preventing justice from being served. According to one former justice from Colorado quoted in the article, even mundane landlord-tenant disputes “are now digital wars of attrition”; there are “cases that are settled only because one party cannot afford the costs of e-discovery”; and, many “plaintiffs cannot afford to sue at all, for fear of the e-discovery costs.”

I love the Economist’s tongue-in-cheek style and thought the article made many valid points. My one disappointment was that its spin was unequivocally negative, as though e-discovery is a self-inflicted wound on the American judicial system. Nowhere was there mention of the fact that electronic evidence often helps litigants get at the truth. Rather than incomplete recollections or “he said-she said” claims and counter-claims, there’s no disputing an email that captures a person’s words and actions in black-and-white. Nor was there any mention of how technology is solving the problems that it inadvertently created: today, there are many products that rapidly sift through electronic information, dramatically lowering the cost of e-discovery.

It is great for everyone in the e-discovery community for our domain to get more ink in mainstream, quality publications. I expect that the trend will continue as the industry grows, and especially once the investigations start into our current financial meltdown.