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

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How to Develop your Personal Brand Online Seminar

Please join Social Media Strategist, Kevin L. Nichols, as he takes you on a live online overview of how to create and develop your online “brand”.  You will learn how to use LinkedIn, Facebook, Twitter, and other online tools to market yourself and develop proper etiquette of conducting yourself online, which ultimately leads to warm leads and sales.  Please visit to read more about Kevin’s online “brand” and some tips on how to build a strong network  Space is limited and there is an Early Bird Registration available for the first 7 seats!

Please visit to Register!

eDiscovery “Think Tank” Offers Concrete Pointers

Key takeaways from the Executive Counsel Institute – San Francisco

By: Kevin L. Nichols


Lately, eDiscovery related conferences are sprouting up all over the country.  If you are a small company or law firm, it is difficult to decide which ones to attend and how you will get the most “bang for your buck.”  Unlike most conferences where there is a panel of industry experts that make traditional PowerPoint or “fancy smancy” Keynote presentations, then field questions from the audience at its conclusion, the Executive Counsel Institute adopts a more differentiating format.  Labeled as “The Exchange,” it is comprised of 10 in-depth roundtable sessions geared towards educating and assisting corporate in-house counsel regarding the latest trends in eDiscovery related technology and best practices.  Although the sessions are moderated by the heads of eDiscovery practice groups of some of the most prominent international law firms and corporate in-house litigation support practitioners in the world, participants can freely ask questions and share antidotal comments and recommendations equally.

This unique format allowed various members of the audience to chime in on a multitude of topics based on the Electronic Discovery Reference Model (EDRM).

Recent Court Decisions
Here are some recent court decisions that were discussed that impact eDiscovery in significant ways:

  1. Pippins vs. KPMG – which was a wage and hour class action lawsuit that involved a broad definition of what “key custodians” were, such that it required the preservation of 100 hard drives;
  2. VOOM v. EchoStar, 2012 NY Slip Op. 00658 (Jan. 31, 2012) – which discussed the standard of invoking “legal holds” for preservation purposes;
  3. Da Silva Moore v. Publicis Groupe, No. 11 Civ. 1279 (S.D.N.Y. Feb. 8, 2012) – which essentially “green lighted” the use of predicative coding; and
  4. Sitton v. Print Direction, Inc., — S.E.2d —, 2011 WL 4469712 (Ga.App. September 28, 2011) – where the court upheld that the employer was allowed to monitor an employee who brought his own laptop to work to work on a competing venture using their internet.

Through these discussions, additional concerns were flushed out regarding the implications of these decisions, such as: How do you preserve your data when it is in the cloud and can involve multiple cloud vendors?  What happens if you are working “offline” and alter documents locally that are not in the cloud yet or are in draft form, are they collected and/or still protected under attorney/client privilege if they never reach their final destination?  What are the issues with data privacy when “outsourcing” sensitive documents like HR, audits, etc.?  These are just some concerns that arose during the conference.

Social Media
Always a fascinating and evolving topic, new social media eDiscovery solutions were discussed to collect and produce the relevant data from people participating in this space.  Some companies that were referenced with emerging social media eDiscovery technology were X1 eDiscovery (a desktop search application and now focusing on Social Media self collection and archiving), NextPoint, Hanzo Archives, and Covogence.  David Kessler, Partner at Fulbright & Jaworski LLP, mentioned that there were cases in Pennsylvania involving social media sites that are being used by defendants to win cases by treating postings as admissions by the party.  In one instance, a judge forced the defendant to “friend” them so that he could see beyond the privacy settings for an in camera review.  Bill Kellermann, E-Discovery Director at Wilson Sonsini Goodrich & Rosati, LLP, referenced the “Snitches get Stitches” case, where a killer’s girlfriend tried to intimidate a witness by threatening him/her using social media.  Companies really need to have solid policies and procedures and monitor their employees’ social media activities to limit their exposure and utilize the appropriate tools available to collect and produce this activity.

Technology Assisted Review (i.e. Predictive Coding)
Kellermann recited a popular quote, “One man’s technology is another man’s magic,” which was very apropos.  The industry has not wholeheartedly “bought in” to predictive coding (PC) yet.  Most agreed, however, that it is best used on large data sets, where the cost vs. technology is reasonable.  Some major players mentioned in this arena were Equivio, H5, Content Analysis, Recommind, Epic IQ, and OrcaTec.  Robert Singleton, Senior Associate at Squires Sanders, LLP, mentioned his firm’s study which generated roughly 90% accuracy utilizing predictive coding versus traditional human review based on using a “Super Reviewer” on 4,400 documents of their own data.  The general consensus was that it is technological tool that law firms need to be able to offer their clients in case it makes sense to reduce large corpuses of data to conduct a higher level human review.  Here are some tips regarding predictive coding:

1.         Load only your most important custodians to create your “seed set” and then apply to the larger data set.

2.         Use PC on your set of documents and determine the key words that you want opposing counsel to use.

3.         Use a “Word Wheel” index consisting of the frequent key words or terms that appear.

4.         Review and analyze the Da Silva Moore Case (Peck Decision).

5.         Be prepared for “seed set” battles in the future.

6.         Probative evidence is paramount for trial lawyers (A jury can only stomach 250-500 exhibits).

7.         PC does not do well with spreadsheets, technical documents, handwriting, etc.

8.         Tweets do not have enough “text” so it’s best to link the conversations into one document.

9.         Don’t forget to use David Brauer’s “Curse Word Search”.

10.       De-Duplication needs to be well thought out (no global de-duplication).

Resources and Tools
Below, please find some recommendations, suggestions, and resources to learn more about the industry that were discussed:

1.         Use Non-Disclosure Agreements (NDA’s) before providing data to vendors.

2.         Use your own data to test projects (not the Enron data).

3.         Find out who else is using the tool.

4.         Trend toward end-to-end solutions, collection to production.  Some problems with the fact that one piece in the solution does not always stay current.

5.         Talk to who’s happy with their tool and who’s not happy with their tool.

6.         Use LinkedIn Groups.

7.         Read Law & Technology News Articles.

8.         Make sure that the vendor has ethical standards (does not demo other people’s privileged information).

9.         If using contract reviewers, make sure that they are well qualified and vetted.

10.       Consult internally with other departments like audit, etc. to see what they use.

11.       Define what you want your review to look like first, then find a tool that does most of what you want done.

12.       Read industry blogs

13.       Read vendor blogs

Final Thoughts
Here is some parting information to take with you and I hope to see you at next year’s conference:

1.         Keep in mind that the decision that is made today regarding preservation will not be determined until 3 years from now in the courts, where technology will have improved and cost will have decreased.

2.         Negotiate a “Technology Pre-Nump” to get access to your data with your provider.

3.         Remember that “The Law firm’s job is to make money, corporate counsel’s job is to save it.” – Kimbir Tate, McKesson Corporation.

4.         Regarding Records Retention – Ask these questions: 1.) Do you have a records policy or hold protocol?  2.) Do you follow it?  3.)  Does it work? (Email management, protocol to trigger a hold, and separating and departing employee’s protocol -60 day policy minimum) – Robert Brownstone, Fenwick & West LLP.

5.         Be on the look-out for new technologies such as new algorithms to determine when people are lying because their speech patterns change for fraud investigations and for face recognition technologies.

Advice – “Tag yourself to a dog or coyote to throw off the rest of the world!” – Robert Brownstone, Technology & eDiscovery Counsel, Fenwick & West, LLP


“The Exchange” is coming to Chicago, New York, Houston and Los Angeles this year for those who want to experience the program. If they want to come, they can register at


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

How to develop a strong network

Originally Published on August 8, 2010 via The Globe Newspapers
Copyright © 2010 The Globe Newspaper Group, LLC – All Rights Reserved.

How to Build A Strong Network
By Kevin L. Nichols

Networking is a skill — better yet, an art form. Those that intuitively have a propensity to get along with others and develop strong bonds are more likely to be successful networkers. There are various intangible components that contribute to a networker’s success. It is important to identify some of these attributes and to strengthen what may not come naturally in order to develop the powerful network that you desire.

The first intangible is self-confidence. Marcus Garvey described it best when he said, “If you have no confidence in yourself, you are twice defeated in the race of life. With confidence, you have won before you have started.” Since relationships are arguably now more of a commodity than the rise or fall of mutual funds or stock prices, confident people are more likely to network with people who they do not know. A confident person is not squeamish and is typically comfortable with striking up conversations, or introducing himself or herself to others in a crowd. This is essential for meeting new people and developing a viable network.

The second intangible is integrity. Integrity is an invaluable component because having it encourages your friends and colleagues to recommend/refer/introduce you to others whom you would like to get to know. (Sometimes you are not aware of why you need to know them, but your network does.) Essentially, having integrity is the best marketing tool because it creates opportunities for people to want to meet you and/or do business with you so that they, too, can benefit from being one of your acquaintances. How you carry yourself and how you handle your business is a direct correlation of how motivated and inspired other professionals will be to network with you.

The final component that will be discussed in this piece is nurturance. Frankly, many networkers underestimate the power of nurturance. Often, friends and colleagues are easily annoyed when someone only calls, emails, texts or sends a message via a social networking site when they “need” something. Your friends and colleagues do not want to feel taken advantage of or used. Thus, it is vital to create opportunities to reach out to your network on a periodic basis to make sure that you are connected in “peace time” just in case you need their backing to go to “war.” No matter how subtle, nurturing your network will allow you to lean on your network multiple times throughout a given time period because your network feels needed, not abused. Finessing this is similar to being in a committed relationship. If done correctly, you will develop a symbiotically respectful relationship with your network with the appropriate amount of giving and taking.

Like any relationship, developing a powerful network is not easy. It takes a lot of work and responsibility. But with confidence, integrity and nurturance, the building blocks are in place for a strong foundation. If you want to make something happen in your life, you need the courage to ask for what you want. Once you have asked, the decision that your network makes (whether or not to assist you) depends on what they know about you, your accomplishments and what type of person you are. How you have managed those relationships will determine whether or not you get the assistance that you desire.

The strength of your network rests in your hands. What will you do with it?

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