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.
NO VENDORS OR SERVICE PROVIDERS PERMITTED UNLESS SPONSORING.
Why Should You Attend?
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.
Robert Brownstone Technology & eDiscovery Counsel, and Co-Chair, Electronic Information Management Group
Fenwick & West LLP
David Kessler Partner
Norton Rose Fulbright
Michael J. Burg Corporate Counsel
DISH Network L.L.C.
Discussion topics will include:
Create a routine and repeatable e-discovery business process
Deal with challenges of litigation holds
The importance of project and process management skills
Effective cost and risk containment steps
The need to document your e-discovery efforts
Real ECA and risk analysis
Recognize and reconcile the ethical tensions that can arise between inside counsel, outside counsel and providers
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.
There are different roles and responsibilities for litigation professionals during the review stage of the Electronic Discovery Reference Model (EDRM). Litigation Support Professionals, Litigation Paralegals, and Litigation Attorneys each have a certain level of expertise that lends to successfully completing a document review. Teamwork is vital in determining the appropriate non-privileged documents to produce to opposing counsel. There are certain “best practices” that each litigation professional should have at their disposal to access from their respective “tool box” when necessary and this document will assist them in this endeavor.
Litigation Support Professional (LSP):
Because of their hybrid of extensive knowledge of information technology (IT) and of the litigation process, the LSP is the intermediary between the law firm and the vendor during the review process. Ideally, the same vendor who processed the data, would host it for review, however, there are number of factors that can effect why that may not be the case. Regardless, a review platform will need to be vetted and selected that meets the overall strategy and specifications of this particular project. Some things to consider would be: 1.) How many people will be reviewing? 2.) Where will they review? 3.) Does the review platform allow you to redact, add confidentiality provisions, and produce the documents within it? 4.) How secure are the access points to the data? 5.) How much project management and customer support will you get from the vendor should something go wrong (and is that discussed in your contract)? Once the data has been processed, QC’d, analyzed, and ready for review, here are some “best practices” for the LSP:
As mush as possible, remain involved with document review planning meetings. Often the LSP is seen as an IT person, not an LSP, thus decisions are made without their knowledge that can negatively impact the review logistically;
Set deadlines to have data hosted and ready for review with the vendor’s project manager ahead of LSP’s own deadlines to allow room for unforeseeable delays (there will be some);
Make sure that if this will be a multi-office review or take place outside the firm, that the review platform allows encrypted access and the connection speeds will be high enough to conduct the review in a timely fashion;
Work in concert with the Litigation Paralegal to identify and segregate review subsets (“buckets”) for the document reviewers; and
Log and keep track of all of the problems that the reviewers are experiencing and make sure that the vendor sufficiently executes the contents of the Statement of Work.
Although this list is not exhaustive, it is extremely important to have someone who manages the IT aspects of the document review and the issues reviewers have as well. The best person to communicate with the vendor and the review team is the LSP and is the appropriate person to keep the vendor honest with the assurances it made before any work was performed.
The review stage is where the Paralegal thrives. Legal teams often rely on paralegals to conduct the first level review of documents. Moreover, paralegals typically take the “key words” or “search terms” created by the attorneys and manage the substantive document review for responsive documents by disseminating review buckets for reviewers to cull through. In addition, paralegals are typically responsible for maintaining a privilege log of all of the attorney/client communications and documents protected under the “Attorney Work-Product Doctrine.” Paralegals should be an integral part of document review team and oversees the production of documents to the other side. Some “best practices” paralegals can use during the review phase are:
Consult with the review team to obtain an “Issues List” of relevant themes, topics, and issues that can be coded and captured throughout the review;
Inquire about what format the documents will be produced in, i.e. native, Tiff, or a combination of both, including if any metadata will be exchanged, and coordinate with the LSP to deliver same;
Review any protective orders and consult with the supervising attorney to insure that all relevant documents contain any confidential designations;
Coordinate with LSP to establish review buckets for the review team;
Maintain a privilege log and make sure that all appropriate documents have been redacted properly; and
QC any pending document productions before they are exchanged.
Paralegals play an integral role in the review phase. Law firms utilize them more because they usually have a stronger grasp on the LSP side than many of the attorneys, they are often less expensive than using an associate, and they typically have more experience on the litigation side than the LSP. This is a great combination for this phase.
While the LSP and paralegals are handling both the technical aspects of the review and setting up the review buckets, the attorneys can now conduct a substantive review of the documents, shore up and support their factual theories of the case; and prepare the evidence that they will eventually use to win this case in court. To get there takes a lot of time and considerable effort. For some document reviews, it may require hiring contract reviewers, utilizing predictive coding, or exhausting the firm’s own internal resources to conduct them. This decision lies with the individuals whose licenses and malpractice insurance are on the line…the attorneys. There are a number of responsibilities and “best practices” attorney should implore during the review phase and here are some suggestions:
Based on the volume of data, scope of the number of custodians, and the amount of exposure at stake for the case, determine the most cost effective review strategy, i.e. hiring contractors, predictive coding, in-house resources, etc.;
Determine if seeking a protective order is necessary to protect your client’s products/services’ trade secrets or confidential/non-public information;
Develop an “Issues List” of all relevant issues, themes, and topics so that reviewers can capture them for a second and third level (if necessary) review before production;
Verify that all documents flagged for privilege are in fact privileged, including redacted documents; and
QC the production set before it goes out the door (a step that is not overwhelmingly taken because of the technological advancements of Discovery/eDiscovery).
Although eDiscovery may be somewhat new, confusing, and difficult to keep up with, attorneys have to develop a comfortability of remaining involved throughout the review process. They cannot rely of LSPs and paralegals alone. Attorneys need to verify and QC documents before production and be able to testify that the methods used to obtain and produce these documents are defensible.
The review stage is arguably the most labor intensive phase of the entire EDRM. It can involve countless hours of LSPs, paralegals, attorneys, contract reviewers’ time. If you look at the EDRM up to this phase, you see a funnel of enormous amounts of data and information whittling down to subset of documents that will ultimate lead to only a couple hundred trial exhibits of key facts. It is equally as important to produce documents that demonstrate your advantage in the dispute, as well as identify the documents internally that will cause the most significant problems in your defense. It is wise to invest the appropriate man/woman power to conduct document reviews and it helps to have a vendor in the trenches with you that want you to succeed and ultimately win your case.
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.
Spoliation, defamation, stalking, and insurance fraud are just a few examples of issues that may require factual evidence necessary to persuade a jury at trial. The methods of obtaining this evidence have dramatically improved over the years and many vendors are now becoming savvy at forensically collecting data from social media sites (SMS), such as LinkedIn, Facebook and Twitter. The number of testifying experts has increased significantly with regard to the defensibility, chain of custody, and the methodology of the collection itself, however, where are the experts regarding the actual use and behavior of those using social media and how utilizing this may impact the outcome of the trial? Moreover, how do lawyers address the employee theft of intellectual property and/or trade secret information such as client lists and client relationship management (CRM) contacts? Perhaps attorneys need to recognize the value of a social media expert.
Although direct evidence of impropriety is difficult to maneuver around, there may be instances where a person’s deviant behavior is not cut and dry or black or white. For example, say an issue arises where a defendant is stalking a co-worker and he “checks-in” at the same restaurant that she is dinning at after work and makes unwanted advances towards her. Later, the defendant disables the Four Square application to his Facebook Page and turns over the login, password, etc. to the judge pursuant to a court order. Facebook most likely will not allow access to that “check-in” from its site, but a social media expert would advise his client to obtain the defendant’s Four Square login credentials and collect from its site as well.
There are numerous ways users of SMS make mistakes by thinking that their privacy settings completely restrict access to others from viewing their profile, yet they forget that when they comment, share, and post on other people’s profiles, their activity is visible to the public. For example, an employee could update her Facebook status by stating that she is glad that it is Friday and a co-worker whose profile is protected, could post some defamatory comments about their company and someone from human resources sees the posts and fires the co-worker. Even if the co-worker tried to delete the post on his profile, the original employee could still provide a copy of the post from hers.
Furthermore, the intersection between employers’ CRM tools such as Saleforce.com, Zoho.com, etc. and employees’ personal LinkedIn accounts is becoming much more congested. The conventional use of LinkedIn is making it more and more difficult to decipher who an employee’s connections truly belong to and would they have made these connections if they were not employed by their employer. It is important to know how sales people normally meet contacts, how they add them to their respective CRM tools, and how easily the contacts can be exported to various mediums nearly undetected. Retaining an expert can be advantageous either for non-disclosed purposes or for testifying at trial to assist the attorney with providing the appropriate context of the pivotal issues of the case for the jury.
Overall, the legal system is being bombarded with cases involving social media on a frequent basis. Not only are the courts dumbfounded about how to deal with social media, but many of the lawyers and judges trying and hearing these cases do not even have SMS profiles or any clue of how SMS work. Attorneys should invest in understanding the nuts and bolts of social media so that they can articulate to a jury what the true triable issues of fact are in their cases. Believe it or not, this may be an area where the jury could actual turn the tables on the lawyers since they live and breath social media daily.
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.