Paralegals Are Project Managers Too!

Paralegals are definitely project managers. Whether you’re traveling a long distance, going on a short road trip, or just heading out to buy dinner, the most important piece of information you need is where you’re going, right? To figure out how you are going to get somewhere, you must know your destination. While this is more difficult as we traverse our goals in life, when it comes to success in e-discovery and the world of legal and litigation support this analysis is much easier.

Managing a project is like managing a case

Every case and each part of a case can and should be viewed as a project. A project is a temporary, non-routine endeavor limited by scope, time, and cost that creates a unique product, service, or result. Projects have a start and an end and they are unique. Paralegals are drafting a motion, performing research, working on discovery, or a trial –all of these are projects or sub-projects of a larger case. Project management principles will help get the work done more effectively and more efficiently.

Who’s a project manager?

Project management, defined, is the structured application of skill, knowledge, tools and techniques to organize project activities and efficiently bring about a desired outcome. Paralegals do this day in and day out as they apply their skills to casework at law firms and corporations around the world.

Paralegals and legal assistants are as much project managers as any attorney leading a case. A project manager is the person possessing the applicable skills, knowledge, and talent who is assigned by an organization and responsible for overseeing and actively managing, among other things, the scope, time, and cost of a project to achieve project objectives. A project manager, like paralegals, must manage the interests and expectations of stakeholders and ensure that the project is completed at scope, on time and within budget. Along the way, they also measure and manage risk, ensure the quality of deliverables, and manage the personnel and other resources associated with a project.

If this doesn’t describe the role of paralegals working on a case, then it’s not clear what does. From the time their phone rings and they receive a new case assignment, paralegals are helping to manage and organize as the case moves through the stages of the litigation spectrum. Drafting, filing, organizing, researching, managing documents or discovery, cite checking – each of these are projects that require specialized skills, have dependencies, and must be performed efficiently. Without a doubt each of these tasks have time constraints and cost limitations. So, lest there remain any doubt—paralegals are project managers.

What does Done look like?

But confusion remains regarding exactly how project management principles integrate with legal work. Perhaps the most important question a project manager can ask when he or she leads a project is “What does done look like?” That question, as simple as it seems, together with the answer, should resonate throughout the project. Otherwise, the scope of the project lacks definition, and when a project lacks proper scope definition the outcome will likely not be successful. When you take on a new case or assignment, it’s important to gather all the information, requirements, and parameters. Remember, successful projects have a vision, a purpose, and a goal, and they have time and cost constraints.

But scope management is just one aspect of project management. There are several components to project management that should be understood, starting with an understanding of the project lifecycle.

The Project Management Lifecycle

Projects have a life; they have a beginning and an end. The project lifecycle begins with the five pillars of traditional project management, called Process Groups. Process simply refers to the discreet steps, actions, or operations one takes to achieve project objectives, the tools used, and an understanding of what each part of a project will look like as well as the final result. Process is identifying the inputs, tools and techniques, and the outputs required to produce results.

The Five Project Management Process Groups

To begin a project, it makes sense to have an orderly framework. The project management process groups provide that framework:

Paralegals Project Management Processes

At each stage of a project, the project team should consider the following:

  • Initiating: Should we take on this project? What are the alternatives? Should we make it or buy it? Do we have necessary agreements in place?
  • Planning: What does done look like? What is and what is not included? What resources do we need? Who will lead the project? How much is it going to cost? How long will it take? What risks are involved? How will quality be maintained?
  • Executing: Project work begins and deliverables are prepared.
  • Monitoring & Controlling: Are we on time? On budget? Are we maintaining quality? How are we monitoring changes?
  • Closing: Document what was done, record metrics and perform post-project review.

The Project Management Knowledge Areas

The lifecycle does not end here. Within each process group are specific areas of responsibility that a project manager focuses on throughout a project. Known as the Knowledge Areas, these are the core elements in each of the five process groups that a project manager must manage:

  • Integration management
  • Scope management
  • Time management
  • Cost management
  • Quality management
  • Human resource management
  • Communication management
  • Risk management
  • Procurement management
  • Stakeholder management

The Knowledge Areas help to structure, categorize, and navigate the order of project work. They must be consistently integrated, managed, and monitored across the five process groups during a project.

Together, the five process groups and ten knowledge areas provide a consistent framework for project work. This framework has been time-tested and it works.

The Ins and Outs of PM

Within the framework, a project manager is responsible for the Inputs, Tools & Techniques, and Outputs in each knowledge area. The project manager first gathers information and identifies the requirements of the project (Inputs). Second, decisions are made about the equipment, methodologies, and resources necessary to achieve project success (Tools & Techniques). And third, the completed tasks and activities become deliverables and, ultimately, the final product, service or result (Outputs).

To illustrate the point, an example is helpful.

Tasked with collecting electronically stored information (ESI) from a client for discovery, what Inputs are needed before beginning the project? What information is necessary to enable the collection project to move forward? In the very least you need the location, the names of custodians, and the sources from which you will collect the ESI.

Next consider the Tools & Techniques. Is there a particular collection methodology suitable to the case? What tools are required? Are there written protocols or best practices for performing a collection? Here you need to know if you’re going to forensically collect the ESI or use other less formal procedures. Ideally, you’re going to use a trained technician who employs software or hardware that write-protects the ESI to prevent it from being altered.

And finally, what is the Output? Obviously, one output is the collected ESI. But how is it maintained? What form is it in post-collection? Are there any other requirements or documentation that is required at the conclusion of an ESI collection? The expectation when collecting ESI is that it will be in native form and all the metadata will be intact. Additionally, you are going to want a collection log and, because the ESI is potentially evidence, you will need to prepare a chain of custody form showing who handled the ESI.

This is but one example of the how the traditional project management methodology works. The project management framework above and the process of moving from inputs to tools to outputs are a proven methodology. That’s why the more than 745,000 project managers across the globe in nearly every industry, including the legal business, use this methodology to achieve effective results. That’s why paralegals should adopt these processes as well.

Conclusion

I began my career as a paralegal and made the move into legal technology, litigation support and e-discovery. Through hard work I built a reputation for getting things done, for educating and training attorneys and paralegals, and for managing people and successful projects. I have managed some of the largest class action securities litigations ever filed. At some point, it occurred to me that there is a better way and so I began to look at the principles of project management and their applicability to case work in the legal industry. Doing so has served me well over the past two decades. My point here is simple: paralegals and legal assistants, like anyone working in any industry, are project managers too. They perform important project-oriented work that can only improve with the use of project management principles.

About the Author

Michael Quartararo is the Director of Litigation Support Services at New York-based Stroock & Stroock & Lavan LLP and the author of Project Management in Electronic Discovery (June 2016), which may be ordered from: http://www.ediscoverypm.com. He is a certified project management professional (PMP) and a certified e-discovery specialist (CEDS). Mike also teaches, serves as a subject matter expert, and sits on the advisory board of the paralegal program at Bryan University in Tempe, Arizona. He frequently writes and speaks on topics relating to e-discovery, project management, and litigation/practice support.

(A version of this article originally appears in the July/August 2017 edition of NALA’s Facts & Findings digital magazine, which may be accessed here)

The Truth Matters in E-Discovery

Lady justice, blind and weighing the truthThe truth definitely matters. We’ve all read horror stories from the criminal courts. Unqualified experts, bad identification evidence, perjured testimony, tainted DNA, corrupt cops, less than candid prosecutors–all these things lead to unreliable outcomes in the mostly analog world of criminal jurisprudence. It’s no different in civil litigation when it comes to the use of electronic evidence. Information that companies possess and control can be manipulated, altered, corrupted, or deleted—inadvertently or deliberately. In most instances, there’s nothing nefarious going on, but occasionally parties and lawyers are sanctioned for wrongdoing in civil litigation as well.

Regardless of the forum, the expectation is that the information put before judicial factfinders, hearing officers, and others, is complete and accurate. One would like to think that good, accurate information leads to the “truth and justice” in our system of jurisprudence. Because, at the end of the day, the truth matters in both civil and criminal cases and fact-finders simply cannot get to the truth if the information presented is bad.

Information is Everywhere

But the fact is that the pursuit of truth is more complex today because we live in a world in which almost everyone is surrounded by vast amounts of electronically stored information (ESI). The Radicati Group estimates that the business world accounts for more than 108 billion emails sent and received per day. They estimate that number will to grow to 140 billion by 2018.[1]

And there is more information created in the world in the last few years than exists throughout all of humankind in the thousands of years prior. Ubiquitous computer devices transmit and store information. Our locations, up-to-the-minute news, sound bites, email, texts, and social media feeds, not to mention “Alexa,” new doorbells, and smartphone-controlled appliances. All this information may play a role in the truth-seeking process. It can help litigants to investigate events and tell their stories in court.

Information is now everywhere and nearly everything we do today is dependent upon electronic devices that store information. These machines are integral to daily life and they supplement the shortages of mere mortal memories. Indeed, computers now perform some functions that previously only humans performed. And computers are now smarter with technologies like Watson’s augmented intelligence and machine learning.

Still, there is work to be done.

The E-Discovery Market

In the United States, which is 80% of the global market, electronic discovery is a growing and thriving field. The market worth of the global e-discovery industry doubled since 2010 and the projection is it will quadruple by 2020. Driven by the massive increase of ESI and the need to manage that information for civil litigation, the market, including services and software, grew to over $7 billion in 2015.[2] One report projects 16% compound annual growth rate for services and software through 2022, increasing the market to more than $20 billion.[3] A Gartner report similarly projects double-digit year-over-year growth in e-discovery software.[4]

At the same time, due to the recession and slow economic recovery, the legal services industry is undergoing considerable change. Consider that law firms are folding and merging or reducing personnel to stay afloat. Corporate legal departments face pressure to reduce legal expenses. One need not have an MBA or a law degree to conclude that the current business model at many firms may not be sustainable in the long term. To survive, lawyers and legal support staff need to change the way they practice and deliver legal services.

By far, the most costly and time consuming aspect of litigation is the discovery process. The Rand Corporation reports that 75% of expenditures in litigation are attributable to discovery costs.[5] It used to be that junior lawyers would sit in rooms filled with boxes to review documents. Discovery is no longer about boxes of paper; instead, it is about terabytes of data. And discovery costs are higher not because of inflation or because attorney hourly rates have risen. In fact, e-discovery costs are considerably lower today than 15 years ago. No, discovery is more expensive now because there is so much more information and the higher volume of ESI drives that cost.Truth and justice at the Supreme Court The tsunami of information that has washed over the practices of the world’s largest organizations is not receding.

The Federal civil rules, adopted in 1934 and infrequently revised since then, have been amended twice since 2006 specifically to address ESI. The number of reported cases relating to e-discovery has skyrocketed recently and continues to grow. There are now e-discovery professional organizations and a multi-billion dollar e-discovery software and service provider industry capitalizing on the changes in legal practice and the deluge of ESI. Recruiters and headhunters now specialize in placing project managers, technical analysts, e-discovery specialists, and yes, e-discovery attorneys.

Going from Good to Great

So, the question becomes how to distinguish between organizations that are managing e-discovery projects well and those who are not. The solution, I propose, lies in identifying those organizations that have a consistently structured process for managing e-discovery more effectively and efficiently. I’m talking, of course, about organizations that apply project management principles to discovery projects.

There has been considerable discussion regarding the applicability of project management in a legal setting. Driving the debate is the need of law firms and corporate legal departments to find efficiencies and reduce legal expenses. Law firms, which rely upon corporations for a slice of the $300 billion legal services market, have begun to listen. Firms are adjusting rates, staffing leanly, or entering unique and tailored billing agreements. Few firms, however, are dramatically changing the ways in which lawyers work. And fewer still have adopted project management principles into their business model.

Applying project management methodologies to e-discovery projects is one tool that will differentiate great firms from good firms. And it will provide the efficiency and sustainability needed in a legal market that is very different today.

Bringing Order to Chaos

Project management brings structure and common business sense to law firms, which traditionally do not operate like a business. To the majority of people in the world –even the legal business—the words “electronic discovery” have little or no meaning. But “project management” is intuitive and people understand it to mean leading people, marshaling resources, and managing processes that lead to a desired outcome.

Most people have an inherent if not instinctive desire to be organized and efficient. It is why we categorize almost everything; it is frankly how the human mind works. Some people do it better than others, for sure. But in the end, we all want to get from point A to point B by the most direct route. And this means completing a task in the most efficient manner possible.

The use of planning, budgeting, and scheduling techniques, if executed correctly, can only enhance the discovery process. Ultimately, this aids the delivery of professional legal services. Monitoring and controlling e-discovery processes are critical as well. To maintain quality and effectively manage changes in scope, timing or cost, it is necessary to monitor each phase of an e-discovery project. And closing a discovery project is equally important. Performing a post-project review, archiving project documentation, and recording important metrics serve to prove a defensible process. They also provide much needed information for estimating The gavel of wtruth and justicefuture analogous projects.

The use of project management in electronic discovery can end the self-inflicted wound the legal industry imposed upon itself. Just like the record industry missed the boat on digital content, much of the legal industry missed the e-discovery boat. In many cases, it sailed right by.

Project management simply brings order to the chaos and puts the focus on sound, defensible processes. With project management, parties to litigation have reasonable assurance that managing their ESI is consistent with winning strategies. And this can help parties present their case in court. Quite apart from the cost, if missteps occur in the process it may be difficult to present good, accurate and complete information to the fact-finder. Following a consistent, structured process can only enhance a litigant’s chance of success.

Conclusion

Discovery of the truth is a foundational principle of our civil and criminal justice systems. When courts render judgment in a legal proceeding we want to believe that the truth has enlightened the path to justice. The judicial truth-seeking process, however, is only as good as the information presented as evidence. If you present unreliable information, the truth is compromised. It has now become clear that using project management principles can and will serve law firms and their clients well. An added bonus is the improvement of the truth-seeking process.


[1] The Radicati Group, Email Statistics Report 2014-2018.

[2] E-Discovery Market by Solution, Service, Deployment, Industry, & Region—Global Forecast to 2020 (Research and Markets, July 2015). http://www.researchandmarkets.com/research/zhg5cn/ediscovery  (global e-discovery software and services market expected to grow from $7.01 billion in 2015 to $14.2 billion in 2020—CAGR of 15.3%).

[3] eDiscovery Market–Global Industry Analysis, Size, Share, Growth, Trends and Forecast 2014-2022 (Transparency Market Research, 2015), http://www.transparencymarketresearch.com/ediscovery-market.html.

[4] , Zhang & Landers, Magic Quadrant for E-Discovery Software, Market Overview (Gartner, 2015), http://www.gartner.com/technology/reprints.do?id=1-2G57ESF&ct=150519&st=sb (e-discovery software market grew to $1.8 billion in 2014 and estimating five year CAGR of 12% with growth to more than $3 billion by 2019).

[5] Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery (Rand Corporation, Institute for Civil Justice 2014).


Michael Quartararo is the firm-wide Director of Litigation Support Services at New York-based Stroock & Stroock & Lavan LLP and the author of the book Project Management in Electronic Discovery, published in June 2016 by eDiscoveryPM.com, LLC. He is a graduate of the State University of New York and he studied law in the UK. He is a certified Project Management Professional (PMP) and a Certified E-Discovery Specialist (CEDS). This article is adapted from content first published in Project Management in Electronic Discovery.

Correcting the Record: Searching Attachments in Outlook

This brief post goes out to Michael Berman, a partner at Rifkin Weiner Livingston, LLC in Baltimore, Maryland.

Shortly after the release of Project Management in Electronic Discovery, Michael wrote to me raising a question. Others have also asked the question, so I decided to address the issue here.

Michael first praised Project Management in Electronic Discovery as “an excellent book.”  Then he said, “I have one question:  You indicate (in the book) that Outlook’s search function does not search attachments –I have a specific option in Outlook 2013 to search attachments (of course, assuming that they are searchable).  May I impose on you to explain?”

Over the ensuing weeks Michael and I exchanged a few emails on the subject. I explained that certainly earlier versions of Outlook Exchange did not provide for searching of attachments. “One problem with writing a book about technology is that the technology changes faster than you can write a book,” I wrote.

Nonetheless, I promised Michael I would look into the issue. And here we are. It took a little longer than I anticipated, but I think we have an answer.

Of course, when I began writing the book over 4 years ago, I was not using a version of Outlook that searched attachments. Indeed, my experience with earlier versions of Outlook taught me it is not possible to search attachments in Outlook. We’ve since learned, though, that starting with Outlook 2013 it is in fact possible to search the text of attachments. Later versions of Outlook do index attachments and allow for searching (assuming there is text in the attachment that can be indexed). The image below from Michael shows the search functionality.Searching attachments in Outlook

As a result of the exchange with Michael, I have updated the text of Project Management in Electronic Discovery. The book now states that later versions of Outlook do index attachments and allow for searching attachments.

Thanks, Michael (and others) for raising the issue and giving me the opportunity to correct the record.

There is a comment section below if you would like to chime in on the issue.

Alternative Facts and Artificial Intelligence

A few months back, a post here began by asking “Who Put the ‘Artificial’ in Artificial Intelligence?” At the time, I was sort of complaining about low adoption rates for technology tools in legal. I suggested that good marketing and “shiny object syndrome” are responsible for the rise of new technologies in legal. In the end, I question whether it’s appropriate to describe technology tools in the legal business as “artificial intelligence” tools.

Generally, I hardly think of myself as an “I told you so” type of person. If I’m being honest, though, I do think I told you so more than I articulate I told you so. (I like to think I’ve learned something tactful over the years). But an interview on Fortune.com got me to thinking.

IBM Logo Artificial IntelligenceFortune spoke to David Kenny, leader of the Watson Group at IBM. I thought while reading the interview that if anyone has a good grasp of artificial intelligence it’s IBM, right? Well, I have news: the word “artificial” really has no place in the technology tools that are in use in the legal industry—at least not the ones in use in e-discovery.

It’s Elementary My Dear Watson

To distinguish between the many AI terms out there, David Kenny said,

“Deep learning uses more advanced things like convolutional neural networks, which basically means you can look at things more deeply in more layers. Machine learning could work, for example, when it came to reading text. Deep learning was needed when we wanted to read an X-ray. And all of that has led to this concept of artificial intelligence—though at IBM, we tend to say, in many cases, that it’s not artificial as much as it’s augmented. So, it’s a system between machine computing and humans interpreting, and we call those machine-human interactions cognitive systems.”

“As for what we would call unsupervised learning—which is to say, we’re not training it to process but it’s beginning to learn on its own—that is moving more in the direction of what some consider true artificial intelligence, or even AGI: artificial general intelligence. I would say we’re at the early stages of that.”

Explaining how Watson is able to ingest the text of 26 million medical and scientific articles to help doctors find clinical trials for cancer patients, Mr. Kenny said:

“. . . it starts with knowledge extraction: reading documents, finding common phrases, associating those together. It does the same with paragraphs. Then it has to get corrected. The human annotation is critical here: Out of the gate there’s no way that I would trust the system to do unsupervised learning and just find the patterns on its own. You literally tell Watson, “Yes, that meant this, yes those go together. Yes, you have that right, or, no, you don’t.”

“And when you tell the system the “no’s,” it re-weights its algorithms until it gets to a point where it would have produced the correct answer. And it gets better over time.”

True Artificial Intelligence: Who’s Supervising Who

There you have it, folks. That is machine learning, hands down. And it’s precisely how the technology applies in e-discovery. It’s not a stretch, then, to say that what we are currently doing in e-discovery is not artificial intelligence. Additionally, what many now refer to as artificial intelligence is actually machine learning. Or, for the marketing folks out there, augmented intelligence (it’s still “AI” but not quite as sexy, right?)

To call it anything else, I think, is irresponsible and misleading. Lest we forget –and unless I missed something—the TAR, predictive and analytic programs in use in legal are algorithmic tools that require some level of human input. That’s not AI, as Kenny points out, because true AI is not supervised.

Why Does This Matter?

It matters because I think it’s not accurate. The reason it is “augmented” and not “artificial” in its application in the legal business is fairly obvious. But in addition, as far as I know, there are no lawyers –none who want to keep their licenses anyway—who are making important decisions, giving advice to clients, or reviewing and producing documents based on true artificial intelligence. No one plugs documents into a computer and spits them out without lawyers being involved (at least I hope not). Seems to me that there’s always a human to some degree augmenting the process.

Now, I’m not a scientist or a linguist. Heck, I barely qualify as a writer. It’s troubling, though, that in an industry in which facts and a search for the truth are paramount too much time and money goes to promoting products and ideas that are, how should I say, “artificial.”

I think it was the first celebrity law enforcement officer, Joe Friday, who said “Just the facts Ma’am.” So, let’s just stick to the facts in e-discovery and try not to promote tools that promise the stars and regrettably fall short. Ultimately, I think doing so will help foster adoption of technology in the legal industry.

I’d love to hear your thoughts on the issue, especially those of the scientists out there.

Project Objectives When Collecting ESI

Great project managers will tell you it’s always smart to start at the end. What does done look like? That’s the first question. Always. When faced with collecting ESI in connection with litigation, there are several project objectives to consider.

Collecting ESI is a critical task

Collecting ESI

First, though, it is important to remember that collecting ESI is a critical stage of a discovery project. Activities undertaken during collection impact every subsequent stage of the process. It is essential to perform a collection in a defensible manner. Using appropriate tools and personnel, planning the collection, and documenting the collection are some of the critical elements of a defensible collection process.

As I write in Project Management in Electronic Discovery, “during a collection project, the objectives are to perform a comprehensive—but not over-inclusive—collection of relevant materials, maintain the integrity of the ESI . . . and provide for proper documentation to maintain the chain of custody and to establish the authenticity of the documents. At the same time, the collection must not disrupt the organization’s business operations.”

Plan the collection project

The first objective is simple: Collect only the ESI that is needed. Make reasonable efforts to identify the potentially relevant ESI and keep the collection effort proportional to the needs of the case.

Planning is crucial when collecting ESI. At the outset, define the scope of the collection. Identify the custodians and data stores and narrow the collection by date range, file type, or other criteria.

I also write in the book that a “project manager is responsible for communicating with the client’s IT personnel and the individual performing the collection, and should coordinate, schedule, and monitor the actual collection process.” Obviously, project managers are well-suited to plan and coordinate collection activities, so be sure to involve them in the process.

Maintain the integrity of the collection

Next, it is important to maintain the integrity of the ESI. Collecting ESI improperly increases the likelihood for problems later in the project and there is a risk of spoliating metadata. If, for example, a case turns on whether or not a party took action or knew something on a specific date, and an electronic document that resolves the issue was collected in a way that altered or did not preserve the file or system dates, then the party advancing the argument is going to have difficulty making their point.

Additionally, in most cases it is necessary to produce metadata. Collecting ESI improperly could make it impossible to produce some metadata and it is often difficult to go back and do it again. Moreover, rework or performing a second or supplemental collection can only increase cost and expand the time to complete a project.Collecting ESI

Quality assurance and validating measures are necessary, too. Like performing a file hash analysis prior to and after collection. This ensures the integrity of the ESI by confirming that no files were altered during collection.

Document the process when collecting ESI

Third, document the entire process when collecting ESI. The documents may be important evidence in a legal proceeding and there are rules for the proper admission of evidence in court. Preparing a collection log and chain of custody documentation shows that the collection is defensible. They provide a record of the process that goes not only to the integrity of the collection itself, but also will assist in authentication and admissibility of the evidence in later proceedings.

Meeting the collection objectives

Many organizations face the initial question of whether to outsource collection processes or perform them internally. There are benefits and risks in both methods. One benefit of outsourcing is to transfer the risk associated with a technical process to trained professionals accustomed to performing such work. Few organizations are staffed with forensics experts, and few have the tools necessary to perform a proper collection. Engaging a service provider for this purpose mitigates and transfers the risk to that service provider.

In addition, it is rarely a good idea to subject individuals within a client organization to scrutiny regarding the handling of their own ESI. Individual custodians or IT professionals may not recognize the relevance of certain electronic documents. And the process of self-selecting ESI may lead to errors and/or inadvertent spoliation of data. Trained technicians, on the other hand, are accustomed to collecting ESI and can provide expert testimony if necessary. Also, they routinely prepare documentation and reports associated with collecting ESI.

That said, it does not mean that, in appropriate circumstances, a client organization may never collect their own ESI. There are relatively simple to use and affordable software tools on the market that make collecting ESI defensible. The question for the organization and perhaps their counsel is how much risk they are willing to assume in connection with the collection.

Conclusion: What does “done” look like?

Each case and collection project turns on its own unique circumstances. The collection method used should be based on the needs of the case and the client. Regardless of which collection tool is used, the objectives here provide the framework for development of a defensible collection process. That process should include planning and scoping the collection and trained personnel who use write-protecting tools and quality assurance measures. And, of course, the completion of documentation to memorialize the collection.

It is worthwhile to also consult other resources related to collecting ESI, such as the EDRM. Many white papers prepared by reputable service providers in the industry are good resources as well.

The E-Discovery of Things

The E-Discovery of Things. I saw this somewhere, so I can’t take credit for it, but it’s obviously a play on the Internet of Things (IoT). The E-Discovery of Things, or EoT for short, is reportedly about what we’re going to do with all the data we are compiling now and in the future. It’s an interesting question because, technically speaking, all the information and data that arises from the IoT is potentially discoverable, right?
IoT
So, is the EoT the new “thing”? Is it a thing at all?

All the talk about the IoT speaks of the coming deluge of data that is going to eventually consume every bit (literally) of storage humans can muster. I have no doubt that in the near future the volumes of data that are created and stored are going to increase and be massive. Consider that we program appliances from wireless devices, open locked doors with smartphones, and generate data every time we use an app, surf the net, make a call, send a text or email, watch a television show, when we drive or ride in cars, etc. It’s true. Information is everywhere and the tide is not going to ebb any time soon as far as I can tell. Minds far greater than mine will debate the propriety of this.

My question is whether any of this data will actually be useful? Sure, it will be discoverable or subject to subpoena depending upon the scope of the claims and defenses in a given case—and of course proportionality—but what will be the significance of data about how a person set the thermostat in their home? I suppose that if the thermostat exploded, in the ensuing litigation about that explosion the data might be useful. But otherwise, the data is probably useless –at least in terms of everyday use. Homeowners are not billed for heat based on their thermostat. Pick a device, any device, any means of communication, any program or app or thing that is digitally connected to any other thing. Do we really need all this data? Is any of it relevant? Shouldn’t this stuff just, like, auto-delete after a defined period of time? That would be my solution. Defensible deletion and reasonable judgment should play a large role in the creation and retention of information. Which leads me to my point. If you don’t need it; delete it, I say.

But somewhere along the way someone is going to claim some data should not have been deleted. What do we do then? The fact is that many organizations are woefully unprepared to deal with such events. It’s not that hard to be prepared. A good records and information management policy is all that is really needed. This is known as Information Governance —managing the creation, storage, security, and disposition of information. Knowing what information you have and where it lives is critical to the process and it is the foundation of any e-discovery project. Take an inventory, establish a retention policy, and dispose of information once it is no longer needed. And adhere to the policy so that claims of good faith don’t fall on deaf ears. This is defensible deletion. In other words, if information is not necessary to the operation of your business, is not needed for legal or compliance reasons, and is not subject to litigation hold, it should makes sense to dispose of it.

I don’t know a lot about the EoT or the IoT – they are real phenomena, no doubt. I don’t know if EoT is a new thing or not, either. But I do know that organizations consistently hold on to stuff they just don’t need to retain. And this adds to the time and cost associated with litigation. It’s just not necessary and in my view the expense required to set up a defensible deletion program is, in the long run, far less than the cost of not doing it.

2016 ACEDS Conference & Exhibition

I attended the 2016 ACEDS Conference & Exhibition of the Association of Certified E-Discovery Specialists at the Grand Hyatt in New York City last week. Quite a show as usual. The leadership and management at ACEDS are a truly dedicated group of individuals committed to education and the growth and development of the e-discovery and litigation support industry. You can check out their content on the web here.

This year featured top talent from all corners of the e-discovery and litigation support industry. Now led by industry veteran Mary Mack, ACEDS is poised to do great things. But more than anything, I think their commitment to education is unparalleled. Day one included several sessions devoted to privacy and cyber security, the new hot topics folks are talking about. Sessions on forensics, hiring and analytics were presented as well. As were several sessions on project management (my favorite topic), including a session I moderated entitled “E-Discovery Project Management: Ask Forgiveness Not Permission.” The crux of what we presented is that while an organizational project management initiative may involve high-level buy in and loads of resources, you don’t need permission to undertake project management protocols within your discreet department. In other words, even tough your firm or organization may not have a formal PMO or the resources to launch one, there is nothing that prevents you from using project management methodologies and protocols to make the work of your department efficient. You don’t need permission to save money. To mitigate risk. To be more efficient. It was a great session. I’m preparing a separate post to illustrate how project management methodologies may be used specifically to manage your litigation support department. And keep an eye out for recordings of the session on the ACEDS site in the future.

The second day of the conference featured sessions on e-discovery education, ethical standards, and how to interview for a job in the industry. A great session with panelists from the judiciary addressed questions revolving around tracking terrorism and the Apple iPhone debate. There were also panel discussions on topics like bringing litigation support in-house, the power of affiliation with associations (a panel moderated by my good friend Maribel Rivera), avoiding sanctions and using six sigma for process improvement. Craig Ball’s presentation on the future of e-discovery was impressive too. And there was content for lawyers too, proving that ACEDS is not just a litigation/practice support organization.

And then came the awards luncheon. I was genuinely surprised, deeply honored and humbled to receive the ACEDS Person of the Year award. It’s great to be recognized by your peers. Thank you to those who nominated and voted for me. Many other people were recognized as well, including my friend Bill Hamilton, who received the Executive Director’s Award, and Craig Ball, who was awarded a Lifetime Achievement Award. The local NY Chapter of ACEDS was also awarded ACEDS Chapter of the Year. And congratulations to all the other award recipients (a list of which you’ll find here).

All in all, the conference was a huge success. As ACEDS continues to build it’s brand, it will become apparent that the organization is in this for the long haul. Their certification exam is rigorous and challenging and establishes a baseline for e-discovery competence in the industry. Their educational content is top-notch and spans a broad spectrum. And their people, led by Mary, Susan, James, and Al Lindsey, the chair of the advisory board, really have a finger or two on the pulse of what the industry needs.

4th Annual University of Florida EDRM E-Discovery Conference

Just back from Gainesville and the annual University of Florida EDRM E-Discovery Conference and once again congratulations to Bill Hamilton, George Socha, and a fantastic conference staff for putting together a top-quality event full of e-discovery education, camaraderie and conversation. What’s cool about the UF-EDRM conference is that you can attend in person or watch and listen online since the entire conference is streamed live over the Internet. I’m honored to be part of this conference again this year. Look for some pics in the Photo Gallery.

I spoke on a great panel related to the collection of ESI with fellow panelists Bob Rudnicki, Megan Kelberman and Jon Rowe. What is different about the annual UF-EDRM conference is it’s unique approach to how sessions are presented. Each panel consists of speakers, usually experts on the topic, who identify and discuss an issue or problem in the industry, and then there is typically a software provider who demonstrates how the software may help solve the problem. In this way it is unlike other conferences.

In our session, Bob Rudnicki presented the problem or “headache” of a putative class action lawsuit with the potential need to collect ESI from thousands of brokers around the nation. Megan and I (as the lawyer and litigation support professional, respectively) provided some “aspirin” and commentary on how Bob might go about solving this problem. And then Jon demonstrated his easy to use and defensible collection software. We also had great questions from the audience.

2016 UDEDRM Panel

The bottom line with collections, folks, is to focus on only the sources of ESI that will yield potentially relevant materials, use defensible tools that write-protect the data when it is copied, and document the process using a collection log and appropriate chain of custody.

Why you should read this book . . .

If the focus of your work or a goal in your career is learning the principles of project management, how they apply in a legal support setting, and how to use these principles to improve litigation support and electronic discovery deliverables in the legal industry, this book is the most comprehensive exposition on these subjects to date. Not only will it provide an understanding of the basic principles of traditional project management, this book also outlines the best practices in a relatively young industry in search of standardization. These two things make this book incredibly valuable to the novice. In addition, for the experienced practitioner and the journeymen in the industry, this book will provide a useful reference for years to come