With the high number of eDiscovery vendors and the huge amount of ED conferences, webinars, and seminars, you might ask why we would talk about eDiscovery for “the rest of us”. eDiscovery was initially seen as the exclusive domain of large firms with large cases in Federal court but now the fact is that firms of all sizes must know how to handle electronic discovery efficiently and cost-effectively.
Why? Because, as Craig Ball says, “That’s where the evidence is”. In all types of cases. Domestic, criminal, business ventures, SEC investigations, M/A deals …. eDiscovery is not just for big firms anymore.
80% of the firms in this country are considered ”small” as defined by organizations like the ABA and ILTA. But the majority of vendors spend most of their time pursuing cases with high volumes of data and multiple users, an attitude that leaves the 80% … the rest of us … searching for solutions.
This book will help you in that search. It’s available on Amazon for only $45.00 at the link below:
ILTACON attendees who weren’t at the ACEDS reception sponsored by Everlaw on Monday have been asking me about the toast I gave to Browning as we marked the 8th anniversary of his death.
So, for this who weren’t there, above is the picture I brought, a get well card a number of attendees at ILTACON that year signed and sent to him, and here is what I said, at least as best I can recall.
I started by saying that it was especially bittersweet for me to be at ILTACON this year since it was the first year I was here without Gayle. I noted that she particularly loved the Monday night vendor hall reception since she loved any excuse to costume and it reminded me that the first time I ever saw her was at a Halloween party in a restaurant lounge near my apartment in Seattle where she worked. She was wearing a Wonder Woman costume and I thought to myself, “my goodness that woman has a great, ah, tiara.”
Well, we met and became friends, and not long after we moved to first Sacramento and then San Diego on a very large case I was working on. We met Browning at a tech conference held at the Hotel Del Coronado and we all became fast friends.
It was an unlikely seeming friendship. I was a South Boston Irish Catholic working-class Democrat; Gayle was a Seattle rock & roller whose politics were closer to the Wobblies than any other party while Browning was a north shore of Boston Protestant Republican. But we had a shared love of Bob and Ray, the two and only, the Boston-based comic team who had started in radio back in the days before TV took off. Browning and I were both old enough to have grown up listening to the radio for home entertainment and our love of that old technology was our first common bond.
He was a great friend and mentor not just to me but to countless numbers of other people in the field of legal technology. He was never too busy to give advice and was courteous and kind to everyone. His sense of humor was notorious … I remember him saying about a technology expert with whom he disagreed on just about everything, “often wrong, but never uncertain.” … and of course, his list of swear words that he contributed to firms for their use in searching documents for offensive language was legendary.
He was the type of attorney I wanted to be when I was a young man. Learned and articulate without being pompous or overbearing and always polite and cordial. He was a great friend, colleague, attorney and technologist and he will be missed by us all.
I noted several of the people in the room who had been close to Browning and also a few other friends besides Gayle who have left us, including Jim Keane, Nigel Murray and Ross Kodner. I then finished by raising a glass in a toast with the phrase Bob and Ray used to sign off their radio show.
I recently wrote an article for the Federal Defenders about US v Morgan (Western District of New York, 1:18-CR-00108 EAW, decided Oct 8, 2020). The case is an example of diligent defense counsel challenging the government on how it produced terabytes of data and features a detailed analysis of those productions and their failings by Judge Elizabeth A. Wolford which resulted in a dismissal without prejudice.
You can read the entire article on the Defenders blog below
Rachi Messing and I are just teeing up our 2022 interviews for the eDiscovery Channel so in the meantime I thought I’d start the new year with this little gem. Chad Roberts turned the tables on me at the Georgetown AEDI in Washington DC last year shortly before Thanksgiving.
Chad, for those of you who dont know him, is the founder of eDiscovery CoCounsel, an electronic discovery firm for plaintiffs based in Florida. Chad is well known in eDiscovery circles as a seasoned litigator with a solid technical background. I’ve had the pleasure of speaking on several panels with him over the years, so I was delighted to accept his invitation to interview me.
You can find the video at Chads eDiscovery CoCounsel YouTube channel here , on my EDiscovery Channel YouTube channel here or the link below.
Nah. I was being nice. But my old friend Bill Gallivan, CEO and co-founder with his brother Dan of Digital WarRoom, asked me if could narrow my focus a bit and write something about AI with the thesis that legal AI requires specificity of scope and the scope of current applications is NOT very wide.
As Dan put it during our conversations on the new post,:
“one of the better descriptions of “modern” AI comes from IBM (https://www.ibm.com/cloud/learn/what-is-artificial-intelligence) which makes it clear all current AI is weak (narrow). Specific and useful tools based on (beautiful) piles of math but ultimately not the focus of general solution or strategy in any domain let alone one as nuanced as “legal” .”
Well at the same time I came across two other articles that took nearly the same position as I did in my original post so I wrote something up around Bills concept and those articles. The folks at Digital WarRoom have posted it on their site under the title Legal AI Misses the Bullseye and you can read it on their blog at https://www.digitalwarroom.com/blog/legal-ai-misses-the-bullseye .
I was astonished to read in a blog post on eDiscovery Today last week that “80% of small law firms aren’t investing in eDiscovery.” because “All that’s available is ‘stripped down versions of enterprise software, or legacy systems that are still using technology circa 2011.’ ”.
My first reaction was, well my first reaction was a string of obscenities. My second reaction was a string of more obscenities. Because as Mark Twain once observed in Pudd’nhead Wilson’s Calendar “When angry count four; when very angry, swear.”
But then I thought, let’s take a deeper look at this. I was surprised to find that the source for the article was the 2019 State of U.S. Small Law Firms Report published by Thomson Reuters. You’d think that’s a good source, right?
Maybe not so much. First of all, when you download the report, the title of the PDF is 2019 Report on the State of the Legal Market: A View from the Midsize Firms. Second there is no discussion that I can see of who they surveyed, who replied or what the specific questions were. Third, if you look at page 14 of the report, it shows the two graphics below:
Wait, so over ¾ of the respondents installed no software of any kind the year before the survey and planned no installs for the year after the survey? Am I reading this correctly? Law firms of all sizes aren’t installing any software at all? Isn’t that contrary to the “small firms don’t install software” premise?
So, what is going on here? First of course as my old friend Mark Twain observed, “There are three kinds of lies: lies, damned lies, and statistics.” (a quote he mistakenly attributed to Disraeli and the actual source of which remains unclear) In checking these statistics, I spoke with one consultant who told me, “you know, 85% of all statistics are made up on the spot.” When I asked the source for that imminently quotable remark, he replied, “I just made it up.”
So here’s some better statistics. First the definition of a “small firm” is not fixed. ILTA considers it a firm under 100 while the ABA sets the level at 50. And does that mean attorneys or all employees? Either way, the ABA says that solos and very small firms (2-9 attorneys) comprise the majority (more than 60%) of the legal profession.
In 2019, 63% of respondents of the ABA Legal Technology Survey Report, “Volume III: Law Office Technology” were solo and small firm attorneys (32% and 31%, respectively).
Of the attorneys responding, 26% were solo practitioners, 30% at firms of 2-9 attorneys, 17% at firms of 10-49 attorneys, 5% at firms of 50-99 attorneys, 10% at firms of 100-499 attorneys, and 12% at firms of 500+. The largest practice area, based on billing, was litigation (27%), followed by estate planning (20%), and real estate transactions (16%).
But the percentage of those who have received eDiscovery requests increased to 70% in 2020. This percentage has continually grown over the last several years. Again, the percentage varies, from a high of 72% at large firms to only 52% at solos.
And the number of firms that report being involved in a case that required eDiscovery likewise varies with firm size. 73% of respondents in firms of 100+ versus only 29% of solos.
Forty-one percent of respondents reported they use no eDiscovery solution. Most lawyers at larger firms prefer an all-in-one solution to eDiscovery (45%), while smaller firms prefer a simple review solution. So over half of the firms said they DID use an eDiscovery solution.
But wait. There’s more.
The April 2021 Gartner Market Guide for E-Discovery Solutions report was just published. Available for download courtesy of Exterro at https://www.exterro.com/gartner-report-market-guide-for-e-discovery-solutions it has two telling statistics. First, 55% of eDiscovery product users in their survey were in firms under 100 (the ILTA small firm cutoff) and 29% were in firms under 50 (the ABA cutoff) which gives us a second source that runs counter to the Thomson Small Firm/Mid-Size Firm survey.
The respondents to the survey represented a good cross-section of practitioners, with the majority being in private practice (68%), 16% in government practice and 5% in corporate practice. The remainder were in a variety of administrative, teaching or public service roles.
The distribution of responses was balanced with 40% solo attorneys. An increasing number of ediscovery specialists, including IT managers, practice managers, paralegals, claims examiners, law students and even document reviewers also responded to the survey. 50% of the respondents identified themselves as litigation specialists with specific areas of Family Law, Personal Injury and Insurance dominating their practice areas.
52% of the respondents reported a state court eDiscovery matter while 45% reported a federal case. 55% of the respondents were doing some form of eDiscovery inhouse (collection, forensics, reviews, production) with 60% doing the review in-house. And the number using a web-based tool approached 50%, so roughly half and half for an internal solution versus the web.
Granted this was only once city and was six years ago. But still the results are striking compared to the Thomson survey.
Even more striking was the rebuke in all three of these reports to the statement that the only available tools are “stripped down versions of enterprise software, or legacy systems that are still using technology circa 2011.” With all due respect to the author of the reported blog, that’s an absurd statement.
In 2012, Bruce Olson and I wrote a book for the ABA called “Electronic Discovery for Small Cases”. In it, we named several eDiscovery specific products including Digital War Room, NextPoint, Intella, QuickView Plus, LexBe Online.
Since then products like Everlaw, Logikcull and Relativity One have come to the forefront with transactional pricing. Cloud Nine bought Concordance and upgraded it. Exterro acquired Summation and merged it into a new product. Even IPro, the company which employs the author of the Long Tail post, sells a product which they call discovery ][ Local and describe as designed for “today’s small legal teams”.
I’m sure I’m forgetting some other tools and for that, I apologize. The point is there are a host of small firm products, most of which offer some form of pricing based on a specific matter or a data size limit.
Again, with all due respect to Brad Blickstein, that’s not “good enough technology”, it’s very good technology at an affordable price. The lack of a formalized process to purchase a high-priced software product does not necessarily mean the smaller firms are not adopting technologies—it means that transactional availability of modern products fits their practice model.
I’ll be having an update to the ED for Small Cases book come out next month under the publishing auspices of Digital War Room. We’ll talk about these subjects in more detail but meanwhile, don’t be afraid to write me if you have questions.
Most people think an ESI exchange protocol is simply a load file that is automatically included with documents that you produce or receive. In actuality, the term means much more than that.
First and foremost, it’s the required result of a required process. FRCP 26(a)(1) requires initial disclosures and FRCP 26(f) dictates a “conference of the parties” (also known as the “meet and confer”) to discuss, among other things, including a requested format for production of documents. Opposing counsel can propose their own format for delivery and that’s where the ESI protocol comes in – it is designed to formalize the way in which the parties eventually agree to exchange their documents.
Second, it’s a way to resolve disputes before they happen, especially disputes regarding proportionality. And given that there were 889 case law decisions involving proportionality disputes in 2020, which is even more than sanctions disputes, exchange protocols are an important tool.
Dorothea Brande, the respected New York writer and editor, once said of writing projects that “A problem clearly stated is a problem half solved.” Doug Austin of EDIscovery Today couched it in more compelling terms when he stated that the exchange protocol is “ … literally your “blueprint” for discovery.” https://ipro.com/resources/articles/best-ways-to-improve-esi-protocols-in-discovery/
The premier question in developing a protocol is “what do you want to do?’ Are you dealing with your documents or a production from opposing counsel? Do you want to review for privilege, a key phrase or term or just general principles? Decide that before you begin.
And before you DO begin, be sure that what you are doing and/or what your opponent has done meets the requirements of the rules. This is essential because the protocol eventually becomes entered as a court order
For a quick checklist of steps to take, here’s an article I wrote for my good friends at Digital War Room.
In the fall of 2018, eDiscovery consultants Don Swanson, president of Five Star Legal and Tom O’Connor, director of the Gulf Coast Legal Technology Center,ran the Microsoft Office eDiscovery Challenge. The MO Challenge, as it came to be known, was a follow up to the 2009 EDna Challenge from eDiscovery expert Craig D. Ball and the subsequent 2011 Ernie Challenge from Tom O’Connor, two earlier projects which asked eDiscovery lawyers and forensic technologists how they would handle a hypothetical small eDiscovery project on a limited budget.
The MO Challenge of 2018 was a similar hypothetical with a twist: the matter in question still had a budget restriction but all relevant data resided within Microsoft Office 365. The challenge asked if Office 365’s eDiscovery capabilities are realistic and can help litigants achieve the goals outlined in EDna and Ernie but within the Office 365 framework? Further, can big case eDiscovery processes be handled within Office 365 on a small budget?
Now Don and Tom are repeating the survey in an attempt to see if we have progressed at all in our use of the Office 365 eDiscovery tool set. The survey can be accessed on line here https://www.surveymonkey.com/r/M2MS95Q or if you are attending LegalTech in New York City next week, they will have a short hard copy “ballot” you can fill out and give back to them to be included in the results.
And to refresh your memory, here are the parameters of the MO Challenge again:
THE HYPOTHETICAL
A multi-national company is facing commercial litigation from a former supplier. The company believes the lawsuit is frivolous yet realizes there is at least $400,000 of potential financial exposure and the likelihood of significant legal expenditures. The business employs 750 and last year the company moved all email and SharePoint content to Microsoft Office 365.
The company general counsel has identified 10 employees who are likely to have data relevant to the lawsuit. Although she has retained outside counsel to handle the litigation, the general counsel is determined to control costs by dealing with initial eDiscovery aspects internally. To that end, she is familiarizing herself with the Electronic Discovery Reference Model™ and is meeting with the company information technology team to explore Office 365’s eDiscovery features.
THE CHALLENGE
The general counsel asks: Within the company’s Office 365 licenses, which processes can be performed in-house to help control costs while meeting legal obligations?
The general counsel identifies several goals:
1. Avoid purchase of additional software or hardware.
2. Preserve potentially relevant email, including metadata.
3. Analyze content using advanced search including keyword, date range and Boolean.
4. Establish a defensible and cost-efficient workflow.
We have built a survey which asks about eDiscovery capabilities in Office 365, including:
· Information Governance.
· Identification.
· Preservation.
· Collection.
· Processing.
· Review.
· Analysis.
· Production.
· Presentation.
Once again, the survey can be found at https://www.surveymonkey.com/r/M2MS95Q or by seeing Don or Tom in person next week at LegalTech in New York City.
The good folks at the Spoliate This! podcast have just released an interview with me where we discuss the prevalence of mobile devices in litigation proceedings, whether you need to collect them, pitfalls of mobile forensic collections, and the type of information they contain.
Tom O and Rachi Messing doing a test drive of their podcast platform with a discussion of legal tech conferences: the good, the bad and the ultimate tech conference as envisioned by them (AKA, TomandRachipalooza)
Posted by Tom O'Connor 
