Contract Attorneys – The Latest Addition to the Endangered Species List

Last week I read an article on law.com titled “Does Predictive Coding Spell Doom for Entry-Level Associates?”  The article was prompted in part by the attention predictive coding is currently receiving as the de jure eDiscovery topic and the starring role it has played in the increasingly soap opera like Da Silva Moore case.  The article concluded that entry-level associates were still necessary and vital assets, even with the rise of predictive coding. 

I agree with the article’s conclusion, and am happy for the associates, but what about their less well placed colleagues, contract attorneys?   The threat for survival that contract attorneys face comes not just from predictive coding but from law schools that spill new graduates like a broken faucet, as well as from employers that take advantage of the situation by offering unscrupulously low wages knowing that for every position they have, there are several applicants willing to fill it at almost any rate or cost.  So, is there still a place for contract attorneys?  Will predictive coding and the deluge of law school graduates wipe out their positions, or depress their value to the point where the attorneys would make more money working at McDonalds?  I hope the answer is no, and the answer should be no if the legal community takes a moment to realize they need to treat contract attorneys  like the nonfungible assets they can be, rather than as pariahs who are undeserving of earning even $20 an hour. 

Despite their persona non grata reputation, a quality contract attorney is worth their weight in gold, and the legal industry should do everything it can to ensure they do not go the way of the dodo, whether because of technology, wages, or anything else.  Contract attorneys’ hands-on expertise and knowledge of review platforms and software can add great efficiency and effectiveness to a project.  Their in-depth familiarity with the documents and details of a case can be illuminating, and their understanding of the eDiscovery process can be a difference maker.  The truly good contract attorneys are knowledgeable experts that can be leveraged to your advantage and provide valuable input and consultation to your case and how you prepare for it.  More than hired mercenaries whose goal it is to plow through data as quickly as possible, contract attorneys can be your eyes and ears in the data.

At the end of the day, you get what you pay for, and nowhere is that more true than with contract attorneys.  You may be able to fill positions offering wages as low as $15 an hour, but that will not get you much more than a warm body.  With such a low rate of pay, a contract attorney will have every incentive to look everywhere and anywhere for a different job.  They will lack quality, consistency, motivation, and loyalty, resulting in a poor quality review, even if cheap.

Alternatively, as with most positions in life, the more faith and responsibility you show contract attorneys (along with paying them a decent wage for someone with a law degree) the more you obtain from them and the more value they will add to your case.  I urge you to look beyond the mere number efficiencies technology such as predictive coding can provide, to look beyond the hourly rate you are paying, and to focus instead on the intangible values added to your overall case.  That is where you find the true value and worth of your contract attorneys, and where you will find, if utilized properly, the good ones are invaluable and indispensible.  Do not get me wrong, I am not suggesting that you should forgo the use technology or that you should be offering your contract attorneys partner level compensation.  I am simply saying that technology should be used to supplement and enhance your contract attorneys’ value and capabilities, not replace them. 

Despite advances in technology, the human element of eDiscovery remains more vital and important than ever.  A key component of this human element is the contract attorney.  Even with the advance of predictive coding and like technologies, skilled contract attorneys should continue to be valuable commodities undeserving of a place on any endangered list.

Native Redactions – An Emerging Trend

It is a commonly accepted practice within the eDiscovery industry to image documents for production.  Likewise, it is now a commonly accepted practice, and indeed even a preferred practice, to exempt spreadsheets (and some other file types) from that requirement, instead producing those documents natively.  The idea being that parties would rather obtain native spreadsheets allowing them to work with and view the content in a meaningful manner rather than receive spreadsheet images that can be useless, cumbersome, or exceedingly difficult to accurately use and understand.  There is a nascent trend of not only producing spreadsheets in native format, but redacting them in native format as well (the concept has existed for years but is becoming an increasing point of emphasis as of late).  

The inherent nature of a spreadsheet means that it often contains complex data located in multiple rows, columns, and tabs. The data often includes or involves the use of formulas, sorting, or filtering amongst other features.  Macros, pivot tables, and hidden content add to the complexity.  If printed, the data often falls across multiple pages in a less than complete and less than orderly manner resulting in a confusing mess that is difficult to cobble together, let alone read and use.  The fact of the matter is that images simply are unable to capture the complexities many spreadsheets contain, so if the document and its content are to be useful and meaningful, you must produce them natively.  Most litigants now recognize this and are comfortable with, and often require, the native production of spreadsheets.  Yet, traditionally they have been less than enthusiastic about redacting spreadsheets in native format. 

Given that it is an accepted practice to produce spreadsheets natively, because that is how they will be most useful, why should redactions change that?  The answer is that it should not, and more and more practitioners are beginning to realize this.  Redacting changes the data in the spreadsheet, but it does not change the nature of the spreadsheet, the functionality of it, or how one uses the spreadsheet.  If a spreadsheets needs to be produced natively to be useful in its non-redacted original state, then logically it should be produced natively to be useful in a redacted state.

Anecdotally speaking, as time goes on, I am seeing much more acceptance and understanding of the native redaction practice across the industry.  My colleagues are telling me that they are seeing the same thing.   I am confident that it is only a matter of time before redacting spreadsheets in native format is the norm and an accepted standard and practice by courts and litigants alike; native redactions simply make the most sense for spreadsheets.

One of the hang-ups for those who are unfamiliar with native redactions lays in the subconscious or gut feeling associated with making redactions to a native document.  Redacting (i.e. deleting) content from native format documents that you are producing somehow feels inherently wrong, as if there is somehow a difference between covering up the data in an image redaction and deleting it in a native redaction.  In reality, and despite this feeling, if done properly, there is no meaningful difference between image and native redactions, or between covering up and deleting.  With each method, you are hiding data in an attempt to ensure the opposing party does not see it.  Whether the data is hidden beneath a box or darkened out area on an image, or deleted from a native document, the goal and result (hopefully) is the same: the data is not visible or searchable.  As long as you redact properly, and are open and honest with the opposing part about what type of redactions you are making, why, and how, there should be very little issue when redacting spreadsheets natively rather than via image.

Of course there are risks with native redactions, and native productions in general, including the loss of metadata, loss of formulas, changing dependencies (e.g. cell values based on formulas or the values in other cells) and the risk of manipulation by the opposing party to name a few.  However, there are methods and mechanisms for addressing these risks, and you can, and should, discuss them with your eDiscovery experts and the opposing party, before taking action.

However, from a strictly results perspective, if done properly there is no reason why the native redaction of spreadsheets should not be acceptable.  This argument carries even more weight if the parties are producing non-redacted spreadsheets natively; in that instance the parties identified value in producing non-redacting spreadsheets natively, and that same value would exist for redacted spreadsheets.  Driven by this logic and the comfort that will come as litigants gain familiarity with native redactions, more and more parties will turn to native redactions for documents like spreadsheets.  In the not so distant future, natively redacting spreadsheets will be a commonly accepted practice and standard in the eDiscovery industry.

Da Silva Moore, Global Aerospace, and Kleen Products – Hyped Triumvirate, But Dispositive Opinion Is Yet To Come

Three recent cases have taken the spotlight in the eDiscovery world, lauded as groundbreaking for their approval of predictive coding. This blog is no exception, having contributed to the commotion, particularly that surrounding Monique da Silva Moore, et. al. v. Publicis Group SA, et al.

In Da Silva Moore, the parties initially agreed to use predictive coding (although they never agreed to all of the details) and Magistrate Judge Peck allowed its use.  Plaintiffs have since attacked Judge Peck and most recently formally sought his recusal from the matter.  That request is currently pending.

Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles, is the most recent case to address predictive coding, and it goes a step further than Da Silva Moore.  In Global Aerospace, the defendants wanted to use predictive coding themselves, but plaintiffs objected.  Virginia County Circuit Judge James H. Chamblin, ordered that Defendants could use predictive coding to review documents.  Like Da Silva Moore, the court did not impose the use of predictive coding, rather, the court allowed a party to use it upon request.

Kleen Prods., LLC v. Packaging Corp. of Am. goes the furthest, and is perhaps the most interesting of the three predictive coding cases because it is different than Da Silva Moore and Global Aerospace in one very important way: the plaintiffs in Kleen are asking the court to force the defendants to use predictive coding when defendants review their own material.  The court has yet to rule on the issue.

These three cases are in the spotlight because the use of predictive coding is seemingly at issue, and yet, in some ways, predictive coding is only marginally at issue.  Yes, in one sense the courts are ruling upon the technology itself and whether it is viable; if a court allows it to be used, it is implicit recognition that the technology works, at least enough to try it out and see how it goes.  However, these cases are really about who gets to choose the technology and method utilized.  These cases and disputes could exist with fact patterns where the parties are arguing over key word searches or linear review and the analysis would be much the same as they are now with predictive coding.  Can the parties pick and agree to a review method and technology?  In Da Silva Moore, Judge Peck said yes.   Can one party pick how they perform their review?  The Virginia court in Global Aerospace said yes.   Can one party force another party to use certain technologies and methods to perform their review?  The Kleen court has yet to rule on the issue. 

These questions are not new and novel and so far, the answers have not been so either.  Yes, they have allowed the parties to use predictive coding, but like with other technologies, the courts have taken a wait and see approach.  If the predictive coding technologies and/or processes used are unsuccessful in meeting obligations and needs, the courts appear more than willing to make adjustments, and perhaps embrace different technologies at that time; they are willing to give predictive coding a shot, but they are not betting the house on it either.

It is understandable why proponents of predictive coding are happy and view these cases as victories.  After all, these are the first opinions approving the technologies use, even if in a somewhat implicit manner.  However, the industry and the legal community must wait before drawing our final conclusions.  Only after a party has successfully used predictive coding in a case and survived a challenge of the results/end product (not just a challenge of its use) and it is captured in written opinion or order, will a true victory be won by predictive coding proponents.  Until then, predictive coding is still the equivalent of a highly rated draft pick; there is a lot of potential, and most people think it will succeed, including myself, but it still needs to prove itself in the trenches.  The predictive coding industry is bullish about its potential for success, and it may only be a matter of time until they are proved right, but only time will tell.

Plan on Planning – Help Your eDiscovery Personnel Help You

I had lunch with an eDiscovery colleague last week and he related to me a recent case he worked on. A few weeks ago, his client informed him that they had agreed with opposing party to make a production in four days. The client did not have a production population determined, and they had no idea how long it would take to create and run a production before they agreed to the deadline with opposing counsel; they picked a date in no way related to the reality that was their data set. None of this had an effect on their expectations for the viability of the project of course. The result? A rush project, extra people working extra hours to get the job done, tension, and having to renegotiate a new deadline with the opposing party because the date was simply unrealistic given the amount of data eventually involved. Ideal? No. Fun? No. Avoidable? Yes.

The above story exemplifies (although perhaps somewhat to the extreme) the experience eDiscovery personnel (whether in-house, outside counsel, or vendor) have with far too many clients in far too many cases. eDiscovery personnel are often left out of the decision-making process and have to scramble to meet artificially created deadlines that have little or no bearing to the work. We all have deadlines beyond our control, so eDiscovery personnel are no different than most in that regard, however, what can be exasperating for eDiscovery personnel, is that in the case of eDiscovery, the deadlines need not necessarily be so tight and out of our or control, or at least knowledge.

To avoid such rush projects, unobtainable deadlines, and wasted time and money, counsel should plan ahead for eDiscovery and include their eDiscovery personnel in that process, as well as in the negotiation of deadlines, to the extent possible (even if just as a point of reference and knowledge). Some easy things you can do to help your eDiscovery personnel better meet your needs, include:

• Create an eDiscovery Plan ASAP – Ideally you would create this before the case begins or soon thereafter. Be sure to include your eDiscovery personnel in this planning so that they can assist with properly setting eDiscovery related deadlines and expectations.

• Leverage Your eDiscovery Personnel’s Expertise – A classic example would be engaging them for search term analysis before agreeing to terms with the opposing party and before you make any productions. Provide the terms to your eDiscovery personnel for testing and sampling, leveraging their ability to write searches and manipulate review platforms. Via such exercises, they can sample documents testing for precision and recall, with the ultimate goal being to create a data set that is defensible and proportionate to the value of the case.

• Do Not Agree to eDiscovery Deadlines Before You Know What the Job Will Entail and Without Input from Your eDiscovery Personnel About How and If It Can Be Done – I-Med Pharma, Inc. v. Biomatrix, Civ. No 03-3677 (DRD), (D.N.J. 2011) is a great of example of why you need to know what the task entails before agreeing. The plaintiff’s in the matter agreed to search terms without testing them and without the advice of their eDiscovery personnel. The terms generated over 64 million hits and 95 million pages, unreal (and expensive) numbers.

• Build in Extra Time and Do Not Wait Until the Last Minute – The only thing worse than trying to complete a complex and important project precisely and accurately, is doing so with little notice and no time for mistakes. By engaging your eDiscovery personnel early in a matter, you not only put them on notice, but it will help them help you obtain the knowledge you need to negotiate and enter into reasonable deadlines and tasks with plenty of time.

You may be asking Why should I do all this, after all, are not my eDiscovery personnel paid to work for me? The answer is, aside from making your eDiscovery personnel happier and more motivated, it will also improve your case; you will have more time to do a better job and implement quality control measures, the court and opposing party will appreciate that you can deliver on what you promise, and by planning ahead, you can create cost saving efficiencies and avoid increased fees for rushed projects.

Consolidation of Services and Functionality: A Growing Trend in the eDiscovery Field. Will It Cost Customers in the Long Run?

Reed Smith, a US based international law firm, announced this week that they would be bringing Relativity in-house, continuing their expansion into the eDiscovery market (in 2011, the firm established a team dedicated to eDiscovery that has grown to over 50 lawyers). This marks a developing trend in the industry; many law firms are taking deliberate steps to ensure they keep eDiscovery work in-house and take back any business they may have lost to traditionally lower cost eDiscovery vendors and service providers. From the firms’ perspective, this makes sense; keep as much business inside the walls as possible, even if that means making capital expenditures.

Reed Smith indicated they would utilize Relativity primarily for document review, which is a relatively cheap (from the firms perspective) and easy way for the firms to make money off their clients. Money, that previously often went to eDiscovery vendors who offered superior technology. Many other firms are employing a similar strategy. With the acquisition of programs like Relativity, the vendors no longer clearly offer superior technology, and decisions about who performs the work become more contingent on relationships, which are often to a law firm’s advantage. In the long term, this is smart business for the firms.

From the clients’ perspective though, this could mean higher costs, as law firms traditionally charge higher rates than their eDiscovery vendor counterparts do. For the eDiscovery vendors, it obviously hurts them, as Firms like Reed Smith will take some, although not all, business that the vendors previously attracted because they had better technology and tools.

Software companies are likewise consolidating the functionality they provide either via development or via acquisition. One need not look any further than KCura’s Relativity for an example of the former, while Symantec ‘s acquisition of Clearwell is a clear example of the latter. Both KCura and Symantec offer products regarded as best in class, and both are aggressively expanding those products’ capabilities, sometimes at the expense of other less dynamic companies and products that not that long ago were consider must-haves in the eDiscovery world.

KCura is aggressively developing Relativity, once limited to review functionality, on both the front and backend of the review process. KCura is improving Relativity’s processing capabilities, adding the ability to ingest and process raw/native data, and creating tools like Fact Manager, which allows users to track and manage important facts, people, and documents within Relativity. The first improvement is a direct attack on programs like Law Prediscovery, while the later provides direct competition to CaseMap, a Lexis product.

By developing and adding these new functions, KCura has not only increased Relativity’s value and utility, but it is threatening formerly symbiotic products by poaching their customers; if you are going to use Relativity for a given matter, and especially if you are going to use it for multiple matters, it simply makes more sense to use the functionality built into Relativity and included in the price rather than license and pay for multiple products. While products like Law Prediscovery and CaseMap and will remain viable options for those not using Relativity, they will also begin to see their customer base shrink because of Relativity, which could mean difficult times ahead if they are unable to adapt quickly.

What all of this consolidation and expansion likely means is that it is going to be more difficult for the small and niche services and software providers to survive. eDiscovery shopping may become more convenient, as one-stop shops and applications become more common, but it may also become more expensive, as customers are forced to pay law firm prices and purchase programs that do everything and have a price tag to show for it.

Da Silva Moore Update: Judge Peck Responds to Plaintiffs' "Scorched Earth" Campaign

In the latest twist in the Da Silva Moore predictive coding case, Magistrate Judge Andrew J. Peck has responded to Plaintiffs' personal attack on him.

In a two page Order specifically addressing Plaintiffs' March 28, 2012 letter requesting Judge Peck's recusal, Judge Peck projects an aura of control, restraint, and is matter of fact in his statements. Judge Peck states:

"The Court notes that my favorable view of computer assisted review technology in general was well known to plaintiffs before I made any ruling in this case, and I have never endorsed Recommind's methodology or technology, nor received any reimbursement from Recommind for appearing at any conference that (apparently) they and other vendors sponsored, such as Legal Tech. I have had no discussions with Mr. Losey about this case, nor was I aware that he is working on the case. It appears that after plaintiffs' counsel and vendor represented to me that they agreed to the use of predictive coding, plaintiffs now claim that my public statements approving generally of computer assisted review make me biased. If plaintiffs were to prevail, it would serve to discourage judges (and for that matter attorneys) from speaking on educational panels about ediscovery (or any other subject for that matter). The Court suspects this will fall on deaf ears, but I strongly suggest that plaintiffs rethink their 'scorched earth' approach to this litigation."

Judge Peck’s response is in sharp contrast to Plaintiffs’ emotional and personal attach levied against the Judge. I applaud Judge Peck for taking the highroad and sticking to the facts, while still making his points. I am sure there will be more to come from this case and the eDiscovery News blog will keep you posted with any updates we become aware of.

To read the eDiscovery News blog’s original post about Plaintiff’s attack on Judge Peck please use the following link: http://ediscoverynewssource.blogspot.com/2012/03/update-plaintiffs-attack-judge-pecks-da.html
Monica Bay of Law Technology News wrote an interesting article summarizing some of the commentary of Plaintiffs’ attack. That article can be reached via the following link: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202547231187&Da_Silva_Moore_Plaintiffs_Reply_Brief_Generates_Quite_a_Bit_of_Fury

Privilege Waived: Insufficient Privilege Log Entries Doom Defendant’s Privilege Claims

Occasionally I run into clients or an opposing party who will attempt to use a metadata privilege log. And although this approach may save money (but even that point is debatable), I always advise against using them largely because, any such log will invariably be overbroad, inaccurate, incomplete, and potentially cause your opponent and the court to lose trust that you are being honest and straight forward with them. Most importantly, as the recent case ePlus, Inc. v. Lawson Software, Inc., No. 3:09cv620 (E.D. Va) makes clear, you risk waiving privilege.

Metadata privilege logs are created and populated using the metadata available within them, sometimes with little or no human input or modification. The results vary from case to case and even document to document. In some instances, a document may not contain data for some or all fields, or it may contain inaccurate or even non-intelligible information. As a result, the deliverable privilege log may have blank fields or incorrect data.

In ePlus, the Court analyzed several privilege log entries to determine if the defendant had waived privilege as a result of the entry itself. Basing its argument in part on Federal Rules of Civil Procedure Rule 26(b)(5) that a party asserting privilege must “’describe the nature of [privileged] documents, communications, or tangible things . . . and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim[]’” the Court held as follows:

1. As to log entries that do not contain author and recipient information, privilege was waived.
2. As to communications received by ten or more non-attorneys, the entries did not demonstrate that the non-attorneys had a “need to know” the information, and privilege was waived.
3. As to communications by non-attorneys that reflect legal advice, these documents are not privileged, since defendant did not “establish that these are communications from or to an attorney or that they are communications made at the direction of an attorney.”
4. As to entries missing date information or failing to assert privilege type, those are mere “minor deficienc[ies]” that do not prevent the opponent from attacking the privilege claim, so privilege was not waived.
5. The court also held that knowingly producing documents and later deciding they are privileged does not constitute “inadvertent” disclosure, and therefore, those documents cannot be clawed back; privilege has been waived for those documents.

The ePlus case should serve as a warning to those who think they can cut corners when creating privilege logs. While minimizing human involvement in privilege log creation and leaving fields blank may save you time and perhaps money, those same actions may waive privilege and make the whole privilege log exercise (even when shortened) superfluous. Defendants Lawson Software learned this the hard way. I hope that others will learn from their mistake; at the end of the day, the dollars saved by using a metadata log, or skimping on quality control of a human created log, simply are not worth the risk of waiving privilege and perhaps exposing the very core of your case.