Litigation Support and “Bringing your Geek to Work”

KLN The GeekBy: Kevin L. Nichols

Small to mid-sized law firms or companies typically operate at a disadvantage when it comes to utilizing legal technology and litigation support services.  Larger firms and Fortune 500 Companies tend to have full-time staff and limitless resources for hardware, software, and consultative support for their cases.  In order for smaller firms to compete, they should utilize independent consultants whenever necessary to save time, scarce resources, and ultimately money.  This includes, “bringing your geek to work” for the critical Federal Rules of Civil Procedure – Rule 26(f) Meet and Confer requirement.

Imagine needing to prepare for 5 depositions in an asbestos case without a full-time paralegal?  Or reviewing DVDs of documents that you have received from opposing counsel in order to prepare an expert for his/her deposition on a shoe-string budget?  It most likely is not going to happen, or else the responsibilities will fall on an attorney’s hands, where ultimately the smaller firm will lose money. The attorney should bill his/her time to more substantive work, which would allow the  firm to rely on a consultant to take this over.  This is why hiring an experience consultant comes in handy, where you already know what their experience level is, they already posses proven methodologies to approach these situations, and when the project is done, so is your contract.  A consultant can prepare work product such as deposition summaries, chronologies, demonstrative evidence, etc.  on the firm’s behalf more efficiently and effectively, which can be very useful in preparing for mediation or trial.

Similarly, when the Rule 26(f) conference arises, and the parties need to meet and confer regarding discovery and electronically stored information (ESI), many smaller firms feel as though they can relay on their vendors to be their “bring your geek to work” representative at these conferences.  Unfortunately, the problem with this is that these vendors are not independent, meaning that their economic livelihood and interest is based on the volume of data that is used to review in the said case.  Thus, they have no real incentive to negotiate aggressively with opposing counsel’s “geek” to keep the volume down, which ultimately reduces the firm’s costs.  Moreover, smaller firms/companies typically do not have a trusted independent source that has knowledge of ESI, eDiscovery, and/or adequate trial experience to help the firm maneuver through the litigation process completely.

Thus, it is incredibly useful to have your own litigation support professional, more affectionately known as your geek at your side throughout the litigation process.  Rather than having a full-time employee that you have to provide benefits for and get stressed out about making payroll for, you can hire a litigation support professional/consultant to assist when needed and provide the continuity on your cases that your firm deserves.   You can easily choose different consultants if the relationship is not working out and you can utilize them when you need them.  During the Rule 26(f) Meet and Confer, it is also in the firm’s best interest to have a knowledgeable and independent consultant on its side to be a fierce advocate for the firm or company, monitor the vendors that are being used, and oversee any staff that will have a hands on role on the outcome of this conference.  Consultants are your friend and should be used when needed to win your cases.

Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in

Litigation, Diversity and Business Development/Social Media consulting.

For more information, please visit http://www.klnconsultinggroup.com.

Follow Kevin on Twitter @Kevnix

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Kevin L. Nichols will be a panelist at The Exchange SF in March 2014

Use Code EM100 for FREE Registration Today's General Counsel Institute
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The Leading Interactive Corporate e-Discovery Program Series

San Francisco
Location: Omni San Francisco Hotel
March 17-18, 2014
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As In-House Counsel, you know litigation costs can spiral out of control. The Exchangeconference allows you the unprecedented opportunity to explore ways of containing and controlling those costs. The program’s interactive format between audience and faculty provides a true understanding along with practical advice regarding the major e-Discovery challenges facing an organization today. Learn more.

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Robert Brownstone
Technology & eDiscovery Counsel, and Co-Chair, Electronic Information Management Group
Fenwick & West LLP

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David Kessler
Partner
Norton Rose Fulbright

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Michael J. Burg
Corporate Counsel 
DISH Network L.L.C.

Discussion topics will include:

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An Interview Regarding Social Media Monitoring and eDiscovery

Recently, a reporter asked me the following questions:

1.  Currently, social media monitoring/archiving/discovery/capture software such as X1 Social Discovery (http://www.x1.com/products/x1_social_discovery/) and SocialWare (http://www.socialware.com/) appears to be focused on only a few, major social networks:  Facebook, Twitter and LinkedIn.  Realistically, is coverage of these three networks alone really enough — given that there are literally hundreds of thousands of discussions forums where an employee might make a post?

 

It depends.  If the company monitoring the social media activity is a federally regulated entity (such as a financial institution), where any posting containing non-public or proprietary information could irreparably effect a patent or its stock price, only monitoring the “Big Three” would not be enough.  However, generally speaking, due to the number of users, followers, and friends, monitoring the “Big Three” is sufficient because most people want a lot of people to see what they post and the majority of people do not even know that others exist (mostly only tech savvy ones know).

 
2.  If a law firm asked you which software products/services you believe they should look at as a solution for social media monitoring/archiving/discovery/capture, which products/services would you point them to — and why?

X1 Discovery appears to be the market leader in this space.  It is very robust and the database archiving and retrieval of user data is very powerful.  

 

Actiance has a product that I am familiar with that can be useful, especially in the financial services/federally regulated industries because it can monitor social media posts of employees before they actually post the information to the social media site itself.  The downside is that employees have to link their social media accounts via an API which allows access to their private accounts in order for this to be effective.

 

3.  Realistically, do you envision a day when a software product will truly be able to monitor every post on every conceivable social network, discussion board, video upload site, etc.?  If not, will this be troublesome when it comes to eDiscovery?  Why/Why not?

No, I do not think that it is realistic that one software product or solution can monitor every post on every site for several reasons.  First of all, these sites are developed by various programmers in different languages, etc. It is very difficult to gain the appropriate access to the code for every site out there and have another programmer develop the appropriate code to monitor it.  Secondly, it would be extremely time consuming for one company to try to locate/identify “all” the sites in the first place.  Lastly, it would be incredibly expensive to try to accomplish same.

 

4.  Looking ahead, what do you believe will constitute the ultimate software suite for social media monitoring/archiving/discovery/capture?  What will it be able to do?  What will it still be missing?  How close are we to getting to that software, and which companies, if any, do you believe may get us there?

 

Great questions.  The dilemma with the next generation of social media monitoring is overcome the inherent privacy issues that exist with monitoring “closed” or “private” pages.  None of the existing software suites can collect data from such sites without having permission from the users (which is highly unlikely if there is a hint of litigiousness in the inquiry).  Logically, people should be smart enough to have their accounts privately protected if they are engaging in inappropriate behavior, nevertheless, you will be surprised to see what people will publicly post.  This is probably the biggest problem and the only way that we will overcome it is determining whether or not social media participation is a public or private endeavor.
5.  Do you have any other insights you’d like to share regarding social media monitoring/archiving/discovery/capture?

 

One thing that I wanted to add is that many law firms use the Way Back Machine http://archive.org that can point to any webpage on the internet to see what it looked like at any given period of time (going back to about 10 years).  This is useful to show what items/content has been deleted, etc. and allows an attorney to question the company or user why it is missing.  

Panelist at BASF’s Barristers Annual Meeting

Barristers Conference

 

I am looking forward to being a speaker on the “Why Incorporating Diversity Into Your Strategic Branding Benefits Both You and the Legal Profession” panel.  If you would like to attend, please visit  http://www.sfbar.org/calendar/eventdetail.aspx?id=B137320/B137320

Next Level Social Media Strategies

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Learn strategies that will help you succeed in social media. In this seminar we will teach you how to network your way up the corporate ladder, grow your own business, fine tune your branding and increase your social sales. If you are a novice or an industry professional, this seminar will equip you with an effective combination of knowledge and tools that will catapult you ahead of the competition by teaching you creative ways to engage your audience. 

This first seminar in the series is being offered at an unbeatable rate by two experts in the field with a trusted track record of industry experience. At the end of each of each half, there will be room to answer your specific social media questions for your business.

 

Part 1: Kevin L. Nichols

  • Career Development
  • Personal Online Branding
  • LinkedIn For Sales And Marketing

Part 2: Kumi Rauf

  • How We Grew To 6 Million Fans
  • Making Sales On Facebook
  • Social Media Time Management

** Photographer Auintard will be taking LinkedIn / Facebook profile headshots for free!Photographer link

 

FAQs

 

Are there ID requirements or an age limit to enter the event?

No.

 

What are my transport/parking options getting to the event?

There is street parking and a lot across the street.

 

Where can I contact the organizer with any questions?

Contact us

 

Do I have to bring my printed ticket to the event?

Either printed or a copy of the ticket on your mobile device

 

What is the refund policy?

Due to the limited seating there are no refunds.

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