an independent supplement by mediaplanet ediscovery litigation...
TRANSCRIPT
litigation support
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An Independent supplement by medIAplAnet
Cloud computingunderstanding what it is and how it benefits you
Choosing a consultantdetermine which firm is appropriate for you
ediscovery social media is challenging our legal concepts
litigation support
stay on top of this evolving industry
An educational resource to aid legal experts in dealing with today’s issues
2 · JAnuAry 2011 An Independent supplement by medIAplAnet
CHallEngEs
As we move into a new decade, we face new challenges with social media. Staying educated and current will be even more important than ever.
improving law practice management in 2011
it’s hard for me to remember the last time I received a let-ter or a memo. Only 10 or 15 years ago, in response to a discovery request we would exchange redacted photocopies of letters, contracts, receipts and
files determined responsive to a discovery request. Today, nearly every document we have is “born” electronically which dramatically changed the way we respond to discovery requests, and created one of the fastest growing career paths and professions: the litigation sup-port professional.
Communication toolsThe use of email as a communi-cation tool has also dramatically increased the amount of data to
be produced and has created the need for new technology that changes all the time. The most recent tools have been those for early case assessment designed to precull and reduce the amount of material to be reviewed. Now we are seeing the convergence of the technology we use in our personal lives with the technology we use in our professional lives, and we will be producing it—i.e., social media. We will see the need for policies and tools to manage risk exposure for the use of social media in the workplace.
Get involved and networkAll of this results in the need to provide education and training for all stakeholders in the process
(service provider and practitioner) by attending conferences like the ones put on by LegalTech®, ARMA and associations like ALSP. It is important to be involved and network with your peers. The Association for Litigation Support Professionals (www.alsponline.org) is one such association. ALSP was founded to promote educa-tion, networking and to establish independent, and defensible cer-tification for our profession. As we move into a new decade, we face new challenges with social media. Staying educated and current will be even more important than ever. Publications such as this one are an excellent way to stay informed and current with trends. We are proud to write the foreword for it.
We recommend
Give your business a boost through cloud computing p. 5don’t know much about cloud computing? learn how it can improve efficiency and save you money.
Explore eDiscovery and social media p. 7Get informed on how to reduce time spent on the tedious tasks of ediscovery and document review and maintain ahigh level of service.
Litigation support,1st edition, January 2011
Managing Director: allan [email protected] Manager: Jackie [email protected]
responsible for this issuePublisher: rebecca [email protected]: missy [email protected]: peter Quigley, robin thompson, eddie o’Brien
Robin Thompsonnational president, 2011-2012the Association of litigation support professionals
“most of our information today is transmitted electroni-cally. ediscovery is not an overnight sensation, and it exists in a lot of litigation.”
eDiscoveryron Hedges discusses the challenges presented by social media.
pAGe 4
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4 · JAnuAry 2011 An Independent supplement by medIAplAnet
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social media and its impact on eDiscoveryThe rise of social media has led to many revolutionary changes in law practice and litigation. Firms are able to capitalize on the syner-gisms among social media, as well as take advantage of the benefits that social net-working offers. But there are also challenges presen-ted by the presence of soci-al media outlets.
Is information gathered through social media sites discoverable and admissible in court? How does such content remain con-sistent with existing law? And how is such information proved to be admissible?
Understanding eDiscoveryThe first thing to understand is that eDiscovery, the process by which information is obtained from electronic sources, includ-ing social media, is here to stay. According to Ron Hedges, “most of our information today is transmitted electronically. eDis-covery is not an overnight sensa-
tion, and it exists in a lot of liti-gation.” Hedges, a former United States Magistrate Judge for the United States District Court in New Jersey, and currently an adjunct professor at George-town Law Center, explains that although social media is a new forum, existing principles can be applied to prove its importance and legitimacy in litigation.
“We went through the same thing with facsimiles in the past,” he states, comparing the rise of social media to the rise of fax machine transmittals in the mid-1980’s.
Should it be discoverable?The “gray” area, when concern-ing social media in eDiscovery, lies in determining whether information obtained from social media sites is discover-able and admissible. According to Hedges, rule 26-B-1 of the Fed-eral Rules governs the scope of discovery and determines that if information gathered is relevant to a claim, then it is discoverable and admissible. “The standard
Social media is here to stay, and its impact will continue to be felt throughout the world of litigation. It has been determined to be discoverable, and is reviewed on a case by case basis.
“most of our information today is transmitted electronically. ediscovery is not an overnight sensation, and it exists in a lot of litigation.”
of admissibility is relatively low,” he explains. Even if infor-mation must be subpoenaed or obtained from a third party, it will be admissible as long as it is relevant.
Possible uncertaintiesThere remain, of course, some uncertainties within the spec-trum of electronically discoverable information. Hedges points out the possibility that the statute of limitations could potentially come into play in some cases. “Addition-ally,” he adds, “there is the poten-tial for substantial hearsay issues.”
With that being said, infor-mation that is discovered elec-tronically is generally accepted in federal courts. The content of social media sites has been determined to be discoverable, and is reviewed on a case by case basis. The technology is here to stay, and its impact will con-tinue to be felt throughout the world of litigation.
Peter QUigley
Ron HedgesFormer united states magistrate Judge for the united states district Court in new Jersey
don’t miss!
2011 must attend events
LegalTech® New York, Jan. 31 - Feb. 2& LegalTech® Los Angeles, May 17-18LegalTech® is the #1 resource for law firms and legal depart-ments to get hands-on practi-cal information for improving their law practice management. For more information, please visit www.legaltechshow.com.
Carmel Valley eDiscovery Retreat, July 17-20The retreat will focus on the com-plexities and practicalities of eDis-covery. Whether you’re new to eDis-covery, or want to increase your ex-isting expertise, the retreat will al-low you to explore this critical top-ic with established industry lead-ers and your peers. For more in-formation, please visit www.car melvalleyediscoveryretreat.com.
International Legal Technology Association (ILTA) Rev-elation 2011, August 21-25For more information, please visit their website at www.iltanet.org.
ALSP National Conference, date and location TBDALSP is holding their national stra-tegic planning session in New York on January 30th coinciding with LegalTech®. ALSP plans to re-es-tablish its national conference and has surveyed its members on location, type and length of con-ference. Tentative plans now are for a conference at the end of Ju-ly or beginning of August with ed-ucation for everyone—beginner to expert. For more information, please visit www.alsponline.org.
JAnuAry 2011 · 5An Independent supplement by medIAplAnet
give your business a boost through cloud computingBy now we have all heard of “cloud computing,” one of the newest technological concepts to alter the way traditional business proces-ses are conducted. Under-standing cloud computing and its benefits, however, is another story.
Cloud computing can be broken down simply into three categories. The first is the application cat-egory. By using cloud computing, businesses can reduce costs by running business applications from a centralized server. In this way, users can reap the benefits
of the application without being restrained by the costs or licensing fees associated with it.
The next category deals with the platform with which a business accesses and utilizes internet offer-ings. Companies such as Google, Amazon, and Microsoft are three platform providing leaders. The third category allows users to build and store applications for future use. This infrastructure category deals primarily with cloud-host-ing, maintenance, and storage.
What are the main attractions to cloud computing? For one thing, bottom lines can be improved because IT budgets can be reduced,
a concept that is hard to ignore in a down economy. A company’s data and IT system can be accessed remotely through cloud comput-ing, allowing employees to work from home, while traveling, or at the office. There is also the oppor-tunity for real-time problem solv-ing, data-sharing, and operations improvement. These time and cost saving prospects can present dis-tinct competitive advantages to firms that explore the options.
Cloud computing appears to be changing traditional busi-ness processes in a major way. In the future, new players will arise in the emerging industry.
An entirely new generation of products and services is avail-able to businesses. And, with the acceptance of cloud computing and its inevitable subsequent technological advancements, business leaders should become more tolerant of new, innova-tive ways to conduct operations. Cloud computing is here to stay because the costs and risks of implementation are low, and the rewards, in the form of time and monetary savings, are high.
Peter QUigley
nEWs
A company’s data and It system can be accessed remotely through cloud computing, allowing employees to work from home, while traveling, or at the office.
6 · JAnuAry 2011 An Independent supplement by medIAplAnet
insigHtThe emergence of technological advances has created an array of product offerings for litigation firms to take advantage of. Attorneys, however, are not necessarily experts when it comes to such products. As a result, a new industry of product and service providers has arisen and their consulting services are now for sale. But how do you determine which consulting firm is appropriate for you?
Choosing a consultantThe first step in hiring a consulting firm is to determine whether or not one is necessary. Which tasks within your business processes and procedures could benefit from outside collaboration? Which items are difficult and outdated?
By recognizing where to start, you can begin to examine prod-ucts and services offered by con-sultants to determine which one is right for you.
A variety of servicesMany consulting firms offer services such as litigation tech-nology consulting, courtroom presentation technology, and electronically stored informa-tion (ESI) management. Look into litigation support software. Some of these applications span the spectrum of legal review and allow the user to organize every aspect of the liti-gation process. These n o n- t r a d i t i o n a l processes can dif-ferentiate your firm from others and attract new clients. Talking to representa-tives from mul-tiple consulting
firms can help identify which ones excel in areas that your firm might be lacking in.
Word of mouth is another method used for finding an appropriate consultant. Ask around. See who other litigation firms have used. Focus on the consultant’s technical exper-tise and
make sure to ask for testimoni-als. It is important to see results before committing to a consult-ing firm.
Finally, ask for a proposal from firms you are considering. A good consulting firm will be straight-forward. Centralized project management and predictable
pricing are two areas to be con-cerned with. Range of services, ability to work collaboratively, and accessibility are also areas of concern. Choosing a consultant is the beginning of a professional relationship, and one that should not be taken lightly.
Peter QUigley
Question & ansWer
Eddie O’Briensenior managing director, Fti technology
What eDiscovery tasks does Ringtail Analytics address to better eDiscov-ery teams’ efficiency?
■■ The Ringtail Analytics visu-alization and analytics fea-tures allow review teams to get smarter about the data set faster, and decide the best course of action. This includes early case assessments of the data, validat-ing keywords and custodians, more intelligent assignment creation, faster review rates as well as repeatable workflows.
How does the Concept Mapper work and lead to greater overall productivity?
■■ Concept Mapper allows proj-ect leads to assess document sets of up to one million docu-ments at a time by organizing documents based on key con-cepts and concept frequency. By grouping conceptually similar documents for review, legal teams can remove irrelevant documents from a review work-flow and prioritize key concepts and custodians for review.
JAnuAry 2011 · 7An Independent supplement by medIAplAnet
nEWs
advances in early case assessmentsSignificant time and money is often spent on document re-view and evidence discovery.
This has led many in the field to con-duct early case assessments to deter-mine the cost of time and money involved in undertaking a particu-lar case. Steps contained in an early case assessment typically include a risk-benefit analysis and relevant information search. Naturally, this leads to a document review, which has typically been a strenuous and time consuming process. The emer-gence of technologically advanced software applications, however, has created a way for the legal com-munity to make informed business decisions while simultaneously reducing risk and cutting costs, both to the firm and the client.
Consultants vs. softwareThe daunting challenge facing many firms today is how to reduce time spent on the tedious tasks of eDiscovery and document review while maintaining a high level of service to the client. One typical
approach to this problem requires the use of a consultant or consult-ing firm to manage cases in terms of risk involved. A newer approach, however, involves the use of soft-ware which performs the tasks of a human review team in a fraction of the time and at a fraction of the cost.
Such software tools help to ana-lyze electronic information by deci-phering through meaningless and irrelevant materials and ranking
relevant documents on a prioritized scale. In a 2009 study conducted by Squire Sanders & Dempsey, LLP, testers attempted to determine “ways in which the law firm could maintain, if not enhance, the qual-ity of its legal services associated with document discovery while also reducing overall client costs for this segment of case development.”
The researchers focused on ana-lytical technology and found that one software tool reached deter-minations that were very similar to those of a human review team. Additionally, the software did so in substantially fewer billable hours.
When determining a platform for your early case assessment, it is advisable to find one that is appro-priate for your firm. If the breadth of litigation in your firm is vast, a customizable platform may be appropriate. There are several plat-forms out there, so, as always, do your homework before committing to one.
Peter QUigley
■■ With technology constantly evolving, traditional legal concepts are being challenged in a whole new way. With the emergence of social media outlets, people are posting personal information at an alarming rate. Additionally, many companies are utilizing social media to keep employees, clients, and potential clients up-to-date. However, when litigation becomes involved, there seems to be a split over what information gathered on social media sites is “discoverable,” and what information is not. As a result, federal standards that were created before the emergence of social media are constantly being challenged.
Electronic Discovery (eDis-covery) is closely monitored by federal standards. Since it is such a new phenomenon, its regula-tion is always changing. Some people believe that social media can ostensibly violate attorney-client privilege. Others feel as though information obtained via a social media outlet is “un-dis-coverable” because it was posted under the assumption of privacy. These cloudy areas are under constant scrutiny and are rede-fining the way that electronic information is discovered and used in litigation.
Social media postings tell a lot about a person. In addition to detailing one’s whereabouts, postings can also disclose who someone is affiliated with. There are sites that contain informa-tion about attorneys. But to what extent is the information discov-ered on social media sites accu-rate? And how can information that is posted in order to share with others reasonably be consid-ered “private”?
Social media and the assumption of privacyIn the eyes of the law, the duty to preserve electronic information may extend to the content on social networking sites. This is because the user has control over the material that is posted onto their account. And, thanks to new advances, many devices can now preserve such information even if it is deleted from one’s social networking site.
The law regards such infor-mation as discoverable when it becomes relevant to the claims in the individual case because the information being communicated is within the control of the person posting it. Thus, there really is not a substantially supported argument of the assumption of privacy when it comes to social media.
These issues do not seem to be going away, either. Social media, once consisting of virtual dwelling spots reserved for teenagers and college-age students, continues to grow exponentially and reach users of all ages. Consider this: there are currently more than 500 million active Facebook users, half of whom log on to Facebook every single day. Combined, users spend over 700 billion minutes per month on Face-book. With so much material on such sites, it is only a matter of time before eDiscovery from social media sites becomes one of the greatest contributors to litigation evidence.
This technology is not going away. Litigation experts should plan on familiarizing themselves with federal regulations regard-ing social media, as it surely will become more and more prevalent in the near future.
Peter QUigley
expLore ediscovery and sociaL media
the daunting challenge facing many firms today is how to reduce time spent on the tedious tasks of ediscovery and document review while main-taining a high level of service to the client.
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Final