The Corporate Intelligencer

The Proposed Amendments to the FRCP, What's All the Fuss About?

2006-09-06T15:09:00.000-04:00

I have read enough articles about the proposed changes to the FRCP to make me believe that there is an impending litigation discovery equivalent of a Y2K style disaster (which never happened) in the making. In many ways, the perceived uncertainty of the amendments' impact is not unlike the uncertainty that swirled in the healthcare & financial communities when HIPAA and SOX were enacted.

Given the flurry of legislation in the past few years, and the cottage industries they've generated, one can see how the hype and hysteria has led to self serving sermonizing in some quarters. To be fair though, there is a lot of uncertainty and confusion about the impact of the changes to the FRCP, which will affect different organizations in palpably different ways.

I suggest, respectfully, that much of the concern (on the law firm side) arises out of a lack of understanding of client infrastructure. This is compounded by little to no awareness of the regulatory and discretionary frameworks that govern how many entities manage their data. One way to counter the hype and fear is to have an overarching data management strategy that encompasses a deliberate and cogent risk management plan for on line, near line and "dormant data sets" (arguably the single greatest corporate data threat today) electronic document collections.

One notable distinction between the FRCP changes and HIPAA / SOX example, is that the latter 2 pieces of legislation are "vertical specific" and thus more narrowly tailored in scope, whereas the proposed changes to the FRCP are not domain specific and they touch and concern every conceivable industry, organization and individual that could possibly envision being a party to litigation. The fact that this is the case should not cause fear or irritable bowel syndrome, rather it should cause us (namely the internal legal, IT departments, outside counsel & consultative experts) to step back and take a closer look at the issues that the amendments are intended to address.

At the core of the changes is the fact that the American regulatory and legal framework, has by and large been slow to deal with the electronification of corporate data stores and the proliferation issues that come with them. During the 80's and for a significant part of the 90's, data creation & lifecycle management mechanisms were geared towards data equipment reliability, data availability & serviceability (RAS). The issues that have taken on greater proportions in recent years are data security, accessibility & accountability (ACCSEC) while maintaining RAS in the face of exponential data volume growth.

At the risk of oversimplifying the process, discovery efficacy is ultimately direct function of the organizational processes & mechanisms that result in the creation, storage, use, retrieval, retention, archival, restoration and destruction of data. The bottom line and practical reality is, the amendments don't really require you to do that which you should not already have been doing with electronic discovery data! Under the new rules (even prior), counsel should understand the implication of and follow the recomendations below:

Don't panic.
Understand the client organizations non discretionary regulatory framework governing document management.
Understand the processes and mechanisms that result in the implementation of the non discretionary document management paradigms.
Understand your clients business model (discretionary document management) framework and the document management requirements they mandate.
Understand the processes and mechanisms that result in the implementation of the discretionary document management paradigms.
Put the onus on the client to be proactive in the implementation of measures that will reduce the risks (provide defensible responses) related to departures (inadvertent and otherwise) from the protocols that relate to 2 and 4.

I've studied the issues extensively and consulted with a number of organizations about various approaches. The approach I feel generates the most bang for the buck is that of client based "discovery enablement" as it relates to helping organizations assess, develop and execute cost effective Managed Information Request and Incident Response plans based on the recommendations above. The beneficiaries of this approach include everyone from the boards of directors, internal legal/IT departments and outside counsel. The benefits that accrue from a corporate and outside counsel perspective are in short, significant and quantifiable disbursement costs savings which translate into more room for attorney time. This sounds like a win-win to me.

In summary, complete, cost and time effective data collection, analysis and production done in a (forensically) defensible manner is what all this fuss is about.

Applied Artificial Intelligence in Litigation and Compliance: Is it Really Ready for Prime Time?

2006-06-01T06:37:00.000-04:00

Over the years, information management disciplines have evolved through several discrete stages. What began centuries ago as rudimentary manual document indexing systems, have developed into complex taxonomical hierarchies and classifications that afford individuals and organizations the ability to classify massive amounts of data and information with extraordinary degrees of granularity. The most commonly used of these systems have followed a natural path across various industries and disciplines, in large part because they make sense. They take into account the most basic elements of the natural creation, aggregation, storage, use, retrieval and disposition of information.

Much of the methodology which forms the foundation of what is colloquially referred to as Artificial Intelligence (AI), originated years ago. Arguably, the fathers of AI could be considered to be the mathematicians Sir Thomas Bayes and George Boole. These gentlemen are responsible for Bayesean algorithms and Boolean logic. They were prolific contributors to statistics, probability and logic theories. Today there are viewed retrospectively by many as the founders of computer science.

Skipping the nauseating description of the informational evolutionary tree, we segue to June, 2006 to discuss Artificial Intelligence in the context of litigation and compliance. In 2001: A Space Odyssey, Hal, the omnipresent sentient computer, was constantly parsing, running calculations and analyzing what at the time, would have been considered unthinkable amounts of data. The result of Hal's computations were outputted as information in a form from which immediate qualitative and substantive decisions can be made and actions taken. This is effectively the state of the technology today.

It is not uncommon for complex litigation document productions to generate multiple terabytes of responsive data from which relevant evidence must be culled. To whittle data collections down to manageable size, there are a variety of methodologies. For years target searching comprised of Boolean, fuzzy, stem, proximity searching has formed the basis of common textual analysis. However concept searching, much more closely related to how we as humans make an association between evidence and issues, has evolved and matured to a point where its practical application in the context of litigation can generate a significant ROI. The next most important question is, "How? Show me an example of how it helps me in managing this litigation or conducting the risk assessment in this merger, acquisition or divestiture for the purposes of due diligence."

While I could pose several answers to this question myself, I've chosen instead to invite the industry leading litigators and technologists, and you, the avid lover of the practice and litigation support disciplines, to weigh in and comment.

"Remember...that which you know, irrespective of your role as the prosecution or the defense, is a lot more valuable than that which you don't, so try to learn as much as you can about what you don't know. - Perry Mason

Ediscovery & Computer Forensics; Some Similarities & Distinctions

2006-05-30T13:27:00.000-04:00

In any litigation document collection, retention or restoration initiative, the 2 words, "cost containment" is a mantra that resonates in the minds of the CIO's, GC's and Outside Counsel. What is sometimes inconsistent with this mantra is that at times there is a tendency of Corporate IT and Legal Departments, the very organizations charged with facilitating cost containment, to see little distinction (or conversely similarities) between the tools, methodologies and processes that are used in electronic discovery and computer forensics. These distinctions, however small they may seem, are important to consider as they can have significant implications.

Defining terms in ways that are universally understood, is always a great starting point. Discovery is a legal methodology grounded in the FRCP. It includes the exchange of information, in electronic and other forms, between parties in a dispute that is deemed responsive to a particular request. The term "electronic discovery" tends to conjure up images of complex, esoteric processes as it relates the exchange and analysis of various incarnations of evidentiary information that are digital or analog in nature. Information gleaned from electronic discovery processes, may be used in trials, hearings or in alternate dispute resolution. In rare instances, electronic discovery has been known to cause hives, nausea, cold sweats, fainting and other psychosomatic symptoms in parties that are involved in significant exchanges of data.

Computer forensics is not a "legal process" (as contemplated by the law) nor is it grounded in the FRCP. It is a broad set of investigative technical processes that are geared towards the preservation, recovery and identification of information stored, lost or deleted (intentionally or inadvertently) from some form of electronic media or device. Examples where computer forensics are often used include but are not limited to the following examples: a criminal action (i.e. child pornography, industrial espionage), an "Act of God" (a disaster, foreseeable or otherwise), a civil action (patent infringement), damaged media; your 3 year deciding it would be a good idea to share her chocolate milk with your laptop. Increasingly, CF is being used in a Corporate Governance capacity, for example, a forensics process may be run in a pharmaceutical organization to ensure that IP that relates to things various people are not working on, is not on their computers.

The lions share of litigation or compliance related discovery that I have encountered does not necessitate a "computer forensics" solution. However as the CF tools that are currently on the market mature downstream and take on more of an enterprise electronic discovery solutions orientation, the distinction becomes increasingly blurred.

For now however, it is my experience that the distinction should be the basis for selecting the tools and processes that are used for the initiatives at hand. Failure to choose the appropriate tools given the infrastructure can result in significant costs of collection. For example, a company that has to collect data from thousands of computers in their enterprise for the purposes of compliance may use a forensics tool if the volatility, integrity or availability of the systems used to access the data is an issue. If the data is fairly uniform in terms of format, location and accessibility, a simple indexing and search tool may suffice. The long and short of it is, there is no panacea, think it through with the right resources and you'll be sure to contain your costs.

What "I" need from a Litigation Support Document Review Repository - "An Open Letter to the Litigation Support Market Leaders

2006-05-23T20:01:00.001-04:00

First of all, "I" want to say one thing. We've come a long way from BRS and the DOS versions of Summation. Back in the day, these document review applications "rocked," they were effective, they were all we had! Today, the plethora of document management tools of the market is enough to give any sane person a reason to take a purple pill. Its great to have choices, but we can't spend the rest of our days, perusing tools that are constantly releasing new versions with features to exploit what the marketing mavens see as the competitions shortcomings and trump what they consider to be the next big thing the other guy is coming out with.

Did they forget something?

Did they ask me what "I" need (where I=Litigation Support Manager + Legal Assistant + Associate + Partner + Client)? Forgive me, but perhaps"I" am being too presumptuous and perhaps my expectations are unrealistic. If so, then "I" need someone to help me readjust my expectations to something reasonable. But remember now, "I" am the client. "I" am the quintessential customer, and "I" have many different incarnations, a few of which have been identified in the ad hoc WHO AM"I" formula above.

As the Litigation Support Manager, I need to have a tool that is:

Robust
Easy to maintain
Easy to troubleshoot
"Open," i.e., SQL back end and a front end with ample API support and have interconnectivity with other tools commonly used for data management.
Should I also mention, the company that meets the criteria above should also be around next fiscal quarter?

As a Legal Assistant, I have extraordinary pressure. I have to prepare for depositions, create witness prep. kits, do document pulls, complex searches and groupings, hearings. I need a tool that has:

A flat learning curve; it's intuitive and easy to use.
The functional logic flows with my workflow; you need to understand what I do and the order in which I do it from a best practices perspective.
Is reliable; in other words, I should not find undocumented features sometimes known as bugs.

As the client of the law firm that has chosen the tools that will host my documents for the matters in which I pay them handsome fees, I expect that:

I should be a able to collaborate with my chosen counsel, whenever and from wherever I choose.
I should be able to up to date progress and billing get metrics on the litigation matters they are working on as well.

Since for the most part, I am the General Counsel or some branch of the Legal Department that reports in to the GC's office, the Corproate Board of Directors is also peripherally interested in how we collaborate.

How will you help me shine?
How will you keep me in the know?
Can you help me with the compliance aspect of the information in my litigation document collection?
How will you help me take the large sums of money that have been spent on the particular matter, embodied in the work product that is in the repository (your repository) and turn it into a institutional knowledge based capital asset?

What I mean by the lofty statement is, how can you help me create post litigation (or representation) based value and utility in the documents and work product that might otherwise be destroyed pursuant to a protective order?

"I" know some of these questions can be construed as challenging, but if you think you've got the responses that make sense, that get the juices flowing in each of my alter egos, them please take up the challenge by pointedly responding to each of the concerns delineated above.

Yours truly,

The Universal "I"

Call Logging Systems: The New Frontier of e-Discovery?

2006-05-23T17:02:00.000-04:00

For a couple of years now, the litigation support industry has been almost exclusively focused on email and electronic documents. We've been gorging ourselves on metadata to the point where we're suffering from electronic gout. Ok, I concede that electronic data is where we as litigation support managers, consultants and the industry needs to focus, because the issues related to "conventional" electronic data and records management are here to stay for the conceivable future.

Nonetheless, we should be ever vigilant for the specter of dormant liability on the horizon. What I am I talking about? I'm referring to the next frontier of e-discovery - call (voice) logging systems. Yes, the ubiquitous, omnipresent voicemail box on your cell phone, in your office, in your home are all potential evidentiary records. At first blush you might not think so, but the federal government does. Just ask Gen. Michael V. Hayden, President Bush's choice to lead the CIA, who is a staunch advocate of domestic surveillance and probably the worlds leading expert in the value of voice logging systems. In the governments arsenal of tools are powerful classified voice transcription programs that convert and parse hundreds of thousands of calls simultaneously while extracting metadata as it relates to the conversations tracked. The metadata that is included in these calls and their associated logs can include the origination, routing and switching information, start, end times and call/message length, and this is just the beginning.

Sophisticated computer algorithms can scan transmissions and recordings for speech patterns, inflections, intonations and nuances that identify not the just the language that is spoken, but the speakers identity (assuming a voice profile exists for a particular user) and, unbelievably, age and likely education levels. Military technology tends to be de-classified over time as new technologies supplant them. When this happens, that which was once classified, can be exploited in the public domain or private sector.

The possibilities go on, but the purpose of this piece is not tout Big Brothers capabilities, but rather alert the reader to the fact that while we are currently focused on terabytes of digital evidence, we have yet to be deluged by petabytes of analog systems data that currently exists as discoverable information in the archives and on the active systems of the corporations that are the clients of the firms we work with. When one really thinks about it, how many preservation orders have you seen that contemplate the preservation of "...any volatile but potentially discoverable material, such as voicemail..."? Well George Socha's model preservation order does, see http://www.sochaconsulting.com/orders/model_data.html ...but come on now..., as a practical matter, how many times have you ever seen something like this used against parties that have failed to comply? What's more, how many of your colleagues or forensics companies are you aware of in our industry that have had occasion to make a forensically sound digital copy of the vm's from a corporate 512 channel voice logger?

Will the deluge ever come? Are we on the precipice of the next frontier? I invite you to comment on what your experience has been and share your thoughts with the rest of the industry.

Litigation Support Staffing - Grow Organically or Import?

2006-05-23T12:24:00.000-04:00

Litigation support staffing...yes, these days it presents an interesting quandary, but not one that cannot be solved with a little out of the box thinking.

There is no doubt there is a dearth of mature talent in the marketspace. Fortune 1000 Corporations and the AMLAW 250 have been fishing in the same finite Litigation/Practice Support talent pool for a few years now and as to be expected, the mature stock has been depleted. So, the question, so aptly put by so many litigation support managers is , grow organically or import? If you grow organically, there are largely 2 groups from which to pull talent, IT and the Paralegal Corps. One can certainly groom a tech savvy legal assistant for the litigation support role and the same is true for IT folks that have the aptitude and desire to learn more about the Litigation Data Lifecycle issues and processes. I doubt there is little argument against this approach, in fact its the right thing for many organizations that want to fill the traditional litigation support role.

I think the last 4 words of the above paragraph should trigger some thinking. If you are grooming to backfill a role, fine. If you are grooming to have competitive advantage and differentiators that affect the bottom line, perhaps a slightly different approach might be in order. Lets face it, given the ever increasingly technical and procedural complexities brought on by legal precedent and legislation, in the litigation support data lifecycle management field and the role of the litigation support department is increasingly advisory. Once upon a time (its still the case to a large extent), litigation support personnel were perceived as data jockeys.

Today, its not uncommon to have litigation support personnel assist with FRCP 26 planning and conferences. Obviously, this level of assistance is of a highly consultative nature, notwithstanding the fact that the personnel that render this kind of assistance have the corps competencies of their more traditional predecessors. The "new" litigation support professional bills (to the extent this is the model used by the firm) at a higher rate, and is a client facing person who can also help clients with litigation response plans.

Where might one find the profile for this type of person? Law schools. What qualifications may they have? When I was in law school I met lots of folks that had MICROSOFT certifications, networking experience and the like - I was one of them. A good complement of these folks are seeking the kind of career paths that many law firms could and should offer them, but the out of the box thinking that facilitates these types of dialogs, simply have not gained significant ground yet.

At the end of the day, the point is as follows; yes...its great to cross pollinate from the existing stock, but if we use nature as a guide, enhancing the gene pool with an infusion of characteristics and traits from non traditional human capital resource pools that create a new litigation support phenotype (I was a bio major once) and skill set profile. I think this is probably where we'll see the industry heading.