Understanding the Processing Phase of eDiscovery

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Loading Data – The Processing Phase of eDiscovery

By: Kevin L. Nichols

 

 

The Processing stage of the Electronic Discovery Reference Model (EDRM) has three distinct perspectives when approaching the manipulation of data: the Litigation Support Professional, the Litigation Paralegal, and the Litigation Attorney’s perspective.  All of these perspectives fuse into one common goal of leading to admissible evidence that will win court cases at trial.  Although they must work in concert with one another, they each possess unique responsibilities and challenges to overcome.  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):

The LSP is the “technical” first line of defense in any legal organization.  Based on the legal team’s structure and organization, the LSP typically oversees the processing phase of a litigation matter.  Many companies and law firms are savvy enough to process small volumes of data in-house, however, many matters require using a third-party vendor to facilitate these services.  LSP’s are typically responsible for or should be responsible for the following:

  1. Recommending a solution to handle the electronic evidence in the case, i.e. selecting to keep the data in-house or to use a third-party vendor;
  2. Managing the request for proposal (RFP) process from at least 3 vendors to make a strong recommendation to the legal team of which vendor to use and why;
  3. Reviewing and approving the statement of work (SOW);
  4. Communicating the technical specifications/requirements to the attorneys in general and specifically the billing partner;
  5. Preserving the metadata that existed before processing;
  6. Maintaining the defensibility of the reduction of data;
  7. Monitoring the production/delivery schedule and exception reporting;
  8. Quality control checking (QC’ing) data to make sure that it was properly de-duped, de-nisted, etc.;
  9. Determining which data proceeds to the next phase of the litigation cycle; and
  10. Reporting results to the litigation team.

Although this list is not exhaustive, these functions will greatly assist the legal team in spending the bulk of its billable time conducting a substantive review of the relevant documents as opposed to spending non-billable time trouble shooting duplicative and/or irrelevant documents.

Litigation Paralegal:

 

The Paralegal’s role during the processing stage should initially be supportive to the LSP.  The major contribution that paralegals can make during this phase is helping with early case assessment (ECA).  Paralegals tend to have a firm grasps initially on cases because they review and organize the files and documents.  Their intrinsic knowledge can be incredibly useful when coming up with appropriate search terms to reduce the data review set.  Moreover, paralegals know and work with the attorneys more closely than the LSPs, thus they understand their personalities and working style.  They can add input and make suggestions to LSPs to make sure the right vendors are selected to conduct this phase of the litigation.  Paralegals should do the following during this phase:

  1. Play an active role in the vetting process of third-party vendors, including the RFP and SOW portions;
  2. Make sure that the appropriate file types proceed through the cycle;
  3. Translate the technical jargon the LSP communicates to them in ways that attorneys can understand in order to make the appropriate decisions; and
  4. Act as the “project manager” of the process to insure that deadlines are set and met according to the team’s schedule.

Paralegals inherently should be included during the entire processing phase because they are the keepers of the documents (electronic and otherwise) and will ultimately be responsible for reviewing and producing same during the litigation.

Litigation Attorneys:

In this phase, many attorneys attempt to allow the LSPs and paralegals to handle this phase because it is highly technical.  However, more and more attorneys are fascinated with eDiscovery and want to master its complexities.  Attorneys should be involved with processing and here are a few ways how:

  1. Determine which files are likely to lead to issues of material fact and admissible evidence;
  2. Decide which custodians to “de-dupe” and how to reduce the data set;
  3. Either have the client or execute themselves the contracts, SOWs, etc.;
  4. Insure that the chain of custody has been preserved; and
  5. Certify that the methods used by the LSPs are defensible.

Ultimately, it is the attorneys’ responsibility to make sure that the methods used during the processing stage is legally sound and defensible.  Thus, although attorneys may not be very technologically savvy, they have a duty of care and responsibility in order to avoid any malpractice claims or issues.

The processing stage is a vital phase of the eDiscovery life cycle.  It is imperative to have solid team of litigation support professionals that are knowledgeable and experienced with both the technical aspects of litigation, as well as the tactical ones.  Reducing data sets are essential in conducting manageable reviews in order to lead to admissible evidence.  Admissible evidence, if it acts in your favor, wins cases.  And winning cases is ultimately why we litigate.

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.

Weathering the Storm: Using Social Networking Sites to Uncover the Hidden Job Opportunities

Reprinted with permission via American Bar Association Business Law Corporate Counsel eNewsletter, July 16, 2009

By: Pang Ly, Esq. and Kevin L. Nichols1
Some social networking sites (“SNS”) are still in their teenage phase: crushes, gossip, sports stats, and local flavor are their typical posts. Most SNS’ casual approach to communicating is not the standard communication style among lawyers particularly when “communicating” in writing. How then as legal professionals can we appropriately utilize the tool for job searching? By understanding and finessing the social features particular to each SNS, you can effectively use the SNS tools in a focused manner for your own ends. Make sure the social networking you engage in achieves two goals: (1) identifies persons of interest (“POI”) and (2) reveals networking opportunities.

LinkedIn, Facebook, Twitter, and JDSupra are four commonly used SNS which you can easily dabble in and employ for your own purposes including a job search.

LinkedIn
LinkedIn is the most professionally focused SNS with its online resume functionality. Anything you would include in your resume and experience section, you can certainly enhance with LinkedIn’s features including showcasing glowing recommendations from colleagues, clients, or past employers as part of your profile. Indeed, you can send an email containing LinkedIn standard text requesting a recommendation or choose to write your own request for a recommendation.

This SNS’s underlying goal is to reduce the “6 Degrees of Separation” by allowing individual members to mine the connections of existing relationships and request introductions to meet potential employers, clients, or other resourceful people. Rather than cold calling companies, etc., LinkedIn facilitates introductions that broaden your contacts. You can easily find people who you went to school with or have worked with and add them to your network. You can easily upload your contacts from other sources such as Gmail or Yahoo. LinkedIn also has job postings, calendar of events, and updates about your contacts so you can keep current.

Practical Tips:
1. Your LinkedIn account should have a professional headshot, detailed resume, solid recommendations, and a careful edit of interests. Employers glean a lot of information from the profile listing, so show off a little and put your best foot forward. Warning: do not get too personal here – save that for Facebook if you want to go there.
2. A useful function of LinkedIn is the contact settings “expertise requests”. This enables you to identify a person as a specialist in their field, and regardless of whether the person is outside of your network, the setting is an excellent icebreaker by facilitating an easy introduction. People appreciate having their knowledge valued and are eager to share about their practice. Once you have identified a POI, then schedule an informational interview. If nothing else, you will make a new friend.
3. Ask a contact to forward your resume to HR. Oftentimes a firm will have an
opening and, instead of blindly sending your resume to HR, LinkedIn can help
you identify a POI in the company. For example, a law firm just posted an
advertisement for a senior associate because the previous one, whom is in your network, was recruited in-house. You ask your contact to forward a detailed introduction to the hiring manager about you and your ability to fill the vacancy. Assuming that their departure was a pleasant one, you have spectacular inroad to a position that no one else would have. 4. Ask for introductions. Really extend yourself and ask your existing contacts to introduce you to POIs. LinkedIn makes it easy to get third parties introduced into your network.
5. Keep track of events or job posting within your area of interest.

Facebook
Facebook (“FB”) is perhaps the most popular SNS today with many features to keep friends and family current about your life. Individuals can post events, share photos, play games, post relevant articles, YouTube clips, and other video, and create groups for worthy causes or networking. Members are able to update their “status” by sharing their moods or current activity, to which others may comment and respond accordingly. This SNS tends to be less professionally oriented, however, many professionals maintain both a work oriented LinkedIn page and a friends and family/interest group oriented Facebook page. Thus checking out and being open to both SNS provides a way in which to become better acquainted with your professional contacts. FB also has many settings to address privacy concerns; the settings allow you to manage who has what level of access to your personal
information and details of your life which are on display. Manage appropriately!

Practical Tips:
1. By updating your status, you can let your network know that you are looking for a particular opportunity and those who frequently read what is going on in other’s lives, can respond to you with either referrals, connections, or helpful information that you may use to achieve your goals.
2. Belonging to the professional groups, alumni associations, affinity groups, etc., you can learn about social mixers and events that can allow you to meet the right people and open up the appropriate doors for you to walk through.
3. Search for POIs. You may be pleasantly surprised to find that you actually know someone who can put in a good word for you.
4. Look for events posted regarding your practice areas. Even bar associations and groups have FB listing networking functions.
5. Sometimes receiving “friend requests” from bosses or co-workers can be unsettling so please visit http://www.examiner.com/x-11864-Office-PoliticsExaminer~y2009m6d23-The-politics-of-Facebook-friends-from-your-job for some helpful tips.

Twitter
Twitter is a site that allows individuals to post short, roughly 160 character messages, containing their thoughts, services, needs, feelings, etc. to their “followers” as well as the rest of the universe. This is like sending an instant message to everyone you know and depending on your settings, the entire world. Thus, it has upsides and downsides. Recently, it has grown in popularity due to celebrities such as Ashton Kutcher’s race to beat CNN to 1,000,000 followers, or Oprah Winfrey sending her first “tweet” (message) on her show. Even President Obama tweets!

Millions of people read each others tweets and links to various articles, pictures, and other content on the web. A more focused Twitter for legal professionals is LexTweet which gathers legal tweets. However, it is difficult to measure how effective this tool is with advancing your career as unlike LinkedIn and FB, Twitter is one way conversation. It can help keep you on people’s minds if you use it to provide focused information that they want to see; you can think of it as targeted direct marketing lite.

Practical Tips:
1. Update your status and let your network know that you are looking for a particular opportunity.
2. Keep posts professional because tweets are searchable.
3. For a handbook on how to use Twitter, please visit
http://mashable.com/guidebook/twitter/

JD Supra
JD Supra is a SNS focused on the legal community and allows lawyers to showcase their work product. Its motto is: “Give Content. Get Noticed.” and is intended for lawyers to really highlight their legal acumen and the SNS is a searchable database of court filings, decisions, and articles submitted by the individual members. Employers will appreciate reviewing your work product and evaluating your abilities. This can be used for marketing yourself by reminding people of the client alerts or talks you have given recently. Providing value is key.

Practical Tips:
1. Remember that everything that you post is being “published” and discoverable. That being said put your best article, case or result out there. Prior work is a great way to sell your skills to a potential employer. Remember to keep it current.
2. Identify POIs and make networking connections.
With the working understanding of SNS, make sure to use it in an overall diligent job search.

SNS can be leads on hidden job opportunities and they can also enhance your ability to
positively stand out from other candidates. Here are some great jobs posting sites to get you started, and you just might find that dream job:

1. The Association of Corporate Counsel: http://www.acca.com
2. http://www.lawjobs.com
3. Worldwide Legal directory, see its Law Employment Center: http://www.hg.org
4. The Ladders: http://law.theladders.com
5. Minority Corporate Counsel Association’s job bank:
http://www.tools.mcca.com/MCCA/JobBank/
6. Corporate Counsel Women of Color http://www.ccwomenofcolor.org/
7. http://www.indeed.com
____________________________
1 Pang Ly, Esq. is a founding member and current President of the Society of Asian Women Leaders (SAWL) and President & CEO of Legal Presence LLC. Kevin L. Nichols is President & CEO of KLN Publishing, LLC. The information in this article is a general description of social networking sites and is not intended to provide specific [legal] advice nor is it intended to create an attorney-client relationship. Because of its generality, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Printed with permission of Pang Ly, Esq. and Kevin L. Nichols. Copyright ©2009. All Rights Reserved.