What are OLP Board Members Up to Now?

OLP eJournal Winter 2012

Contents3 OLP Litigation Support Certificate Program

4 Letter from the Editor 5 2013 International Board of Governors 6 Document Review at a Crossroads: Guide to Navigating the Current Options by Beau Holt, Esq. & Debora Jones, Esq. 12 OLP Offers eDiscovery Project Management Certificate Program

14 Font Matters - A Trial Graphics Consultant’s Trick to Over-come Bias By Ken Lopez 18 Critiquing an Expert Report by Jason Kwiatkowski

20 Cover Story: When to Jump Out of a Perfectly Good Air-plane: A typical story for Nigel Murray

24 The Best Kept Secrets: Technologies Building Structured Searches Part II By Philip Sykes and Richard Finkelman

32 Who’s in Charge of the Data Management Initiative for Your Company? 10 Steps Toward Getting Your House in Order By Linda Sharp, Esq.

36 You’re Being Bullied - Now What? By Merrilyn Astin Tarlton

39 Join OLP!

40 Why Would You Get Hit By a Bus? (And other good ques-tions about cliches) By Chere Estrin

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Introducing the

OLP Litigation Support Certificate Program

For law firms, in-house legal departments and government agencies, there is very little in the way of courses or certificate programs legal professionals can take.

Now, OLP offers a newly created certificate program in Litigation Support. Tech-nology today is absolutely critical in almost every position. Without that knowl-

edge, your career may be compromised.

Finally, the training you have been waiting for.Not catch-as-catch can from the person least qualified.

Not a seminar here and there.Not a generalized overview one-hour webinar.And, not trial-and-error on the client’s dime.

Real, honest-to-goodness 3 month online interactive, comprehensive training with honest-to-goodness qualified instructors who know the how to train experienced,

intelligent legal professionals.You can’t afford to pass this up.

Starts March, 2013 For more information: info@theolp.org www.theolp.org

760-610-5462 3

Letter from the Editor Good news for 2012 - 2013! A preliminary survey of about 100 mostly large law firms shows better-than-expected results, the Wall Street Journal Law Blog reports. Law firms had an average 5 percent increase in gross revenues over the prior year, a nearly 6 percent increase in net income, and a 5 percent increase in profits per equity partner.

But this good news doesn’t mean that you should become complacent. Between law firm competitors, quickly moving technology and lean, mean budget cuts, law firms need to heed the call for controlling expenses and improving productivity.

This issue we bring you valuable information to help you keep pushing forward. From document review to overcoming bias in trial presentations to using key word search technologies and more, our contributing editors bring the latest and most forward thinking to the table.

OLP has some exciting things going on as well. The CeDP, eDiscovery certification exam, continues to attract experienced legal professionals and the list of CeDP designates is growing. We’re also offering a 5 month interactive online certificate program in eDiscovery. The first two programs sold out, so I recom-mend that you sign up now for the March program.

On the boards is the new Litigation Support Certfication. The certification exam has been in the works with Pearson for over a year. Pearson Vue is a $7 billion corporation and has designed the LSATS, GMATS and GRE certificate programs. The LSC is scheduled to launch late Spring, 2013.

Additionally, OLP is offering a brand new 3 month online course, Litigation Support Project Manage-ment for qualified legal professionals. The course gives in-depth instruction in project management, the latest in software and technology, management, and budgeting, staffing and more. The first program starts late March.

Finally, we have chapters that started in Phoenix and Washington, D.C. We have additional chapters starting in Miami and Los Angeles. The approach to the meetings is unique and invites the audience to participate. No long vendor speeches, no talking heads. Come and join for a fresh experience!

Here’s to a successful coming year full of promise, prosperity and positive look to the future. Chere Estrin Managing Administrator & Co-Founding Memberchere.estrin@theolp.org

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2013 International Board of Governors Chairperson, Board of Governors Douglass Mitchell, Esq. Partner, Boies Schiller & Flexner LLP

Governors

Arnold Blair Sr., Esq., Staff Attorney. WilmerHale, NY

The Hon. Mark J. Cavanagh Michigan Second District Court of Appeals, Detroit, MI

Kunoor Chopra, Esq., Senior Vice President of Elevate Ser-vices; General Counsel of Western Region, Los Angeles, CA

Kevin Cranman, Esq.General Counsel, Ericsson, Atlanta, GA

Jeff FehrmanChief Strategy Officer; Mindseye, Arlington, VA Jeff Fowler, Esq. Partner, O’Melveny & Myers LLP, Los Angeles, CA

Ron FriedmannConsultant, Arlington, VA

Daniel Garrie, Esq.eDiscovery, Special MasterFSRDG, New York, NY and Los Angeles, CA

Nick Hariton, Esq.Managing Director & Counsel. Imaging Presentation Part-ners, Los Angeles, CA

Sara Anne Hook, M.L.S., M.B.A., J.D., Professor of Infor-matics and Associate Dean for Academic Affairs; IIndiana University School of In Law, IU School of Law, Indianapolis

Dominic Jaar, Esq., National Leader, Information Manage-ment and E-Discovery KPMG; Past President, Law Practice Management & Technology Section Canadian Bar Associa-tion Linda A. Klein, Esq., M anaging Shareholder, Georgia Of-fices, Baker Donelson, Berman,Caldwell & Berkowitz, P.C. Atlanta, GA; Past President, State Bar of Georgia

Steven Lief, Esq., Practice Support Counsel, Epstein Becker Green; Founder, AmLaw Tech Magazine

Dennis Kiker, Esq., Dennis R. Kiker, LLC, Richmond, VA Marcus Ledergerber, Esq., Attorney and Technologist, eDiscovery People, New York City, NY

Hunter McMahon, Esq., eDiscovery Consultant, eLit Inc., Los Angeles, CA

Rick Nalle, Director, Forensic Technology Services,KPMG LLC, Los Angeles, CA

Mary Mack, Esq., Corporate Technology CounselZylab, Portland, OR

Nigel Murray, Managing Director, TRILANTICLondon, England

Fernando Pinguelo, Chair, Cyber Security & Data Protec-tion Group, Norris McLaughlin & Marcus, PA

Herb Roitblat, Ph.D., CEO, OrcaTec, Los Angeles, CA

George Rudoy, CEO, Integrated Legal TechnologyNew York, NY

Joseph C. Scott, J.D., Special Counsel, Aderant, Los Angeles, CA

Eddie Sheehy, CEO, Nuix, Sydney Australia

Madison S. Spach, Jr., Esq., Spach, Capaldi & Waggaman LLP, Newport Beach, CA

Jennifer Swanton, Esq., Principal eDiscovery Specialist, Medtronics, Minneapolis, MN

Joe Thorpe, Managing Director, International Litigation Services , Los Angeles, CA

Dave Tiller, Co-Owner, Vice President, Studeo LegalPeoria, AZ

David Werblow, Esq., Senior Corporate Counsel, T-Mo-bile, Seattle, WA

Laura A. Zubulake, Consultant, New York, New York

Visit our website: www.theolp.org

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6

Document Review at a Crossroads: A Guide to

Navigating the Current Options

By Beau Holt, Esq.

and Debora Motyka Jones, Esq.

The Electronically Stored Information (“ESI”) world has begun what will eventu-ally be seen as an inflection point. If you work in the e-discovery field, you have likely heard or read about Technology Assisted Review (aka Predictive Coding, Computer Assisted Review or Human Guided Machine Learning, collectively referred to as “TAR”) with increasing fre-quency.

Document review models are beginning to shift away from tradi-tional Linear Human Review (“LHR”) toward TAR. This does not mean that traditional LHR is ready for the museums or that TAR is a complete replacement for all LHR. In this article, we will explore the strengths and flaws for these two distinct methods and provide a roadmap for leveraging the strengths of both.

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TAR and LHR Defined

Since the inception of ESI and electronic document review, the primary methodology for identifying rel-evant material has been application of search terms followed by one or more phases of human review of the search results. The review phases often include:

• initialreviewforrelevanceandidentificationofpotentially privileged documents (commonly known as “first pass” review);• secondpassorqualitycontrol(“QC”)reviewtoconfirm the responsiveness decisions, further refine the potentially privileged document set and apply or confirm issue code tags; and • finalprivilegereviewinvolvingamoreex-tensive review to prepare privilege summaries for a privilege log.

This approach is often referred to as linear review because documents follow a linear path: search term application,initialreview,QCorsecondpassreview,and privilege review.

In the last few years, the arrival of TAR has promised a new paradigm for document review. The armies of document reviewers are being replaced by one (and sometimes two) “expert” reviewers and a computer program.

These “expert” reviewers review a small fraction of the total document population allowing the TAR program to learn the decision-making logic. Once the program demonstrates an acceptable level of under-standing, the TAR application applies the logic to the remaining document population. In effect, the expert review and the TAR application combine to conduct the equivalent of a first pass linear review.

TAR: When and Why?

The TAR model has begun to challenge the older LHR model in three areas:• costs;• addedawarenessoftheover-inclusiveandunder-inclusive issues associated with search terms; and• variationinaccuracyofreviewsassociatedwith large document review teams.

TAR can reduce the cost of document review by substituting voluminous first pass LHR with a stream-lined review of a small data set. TAR can achieve this while simultaneously meeting or exceeding the ac-curacy of LHR first pass results.

The cost argument alone is extremely compel-ling. Costs for the discovery phase of litigation have continued to climb, due almost exclusively to the explosion of ESI volume. Large cases now often involve collection of millions of documents. These documents must be collected and processed (e.g. loaded into processing tool, de-NIST’ed, deduped, and limited by date ranges) prior to application of search terms.

Generally speaking, the larger the volume of in-coming data, the larger the volume captured by search terms for subsequent review. It is no surprise that there is a direct positive correlation between the cost and the size of the document review set—at least with LHR models. We have personally been involved in litigation with multi-million dollar LHR costs due to the volume of documents. Corpora-tions, small businesses, and the insurance compa-nies that provide litigation coverage are all push-ing back against the spiraling costs with greater urgency. They are actively seeking new models. The numbers below compare traditional LHR for a medium size case where search terms captured 250,000 documents for review against a TAR model for the same set.

• LHRModel o First pass review on all 250,000 documents captured by search terms o 2500 hours of collective review time assum-ing a fast rate of 100 documents per hour o Cost: $125,000 - $312,500 assuming typical per hour reviewer costs of $50 to $125 per hour.

• TARModel o Expert TAR review of approximately 7,000-10,000 documents Although every case is unique, common TAR platforms would be able to achieve statistically sound and stable results after human review of ap-proximately 7,000-10,000 documents.

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“The cost argument alone is extremely compelling.”

o 170 hours of TAR review time by an “expert” reviewer, assuming a review rate of 60 documents per hour. The expert reviewer is typically a member of the litigation team or someone who grasps the relevancy concepts and parameters of the case.

o Cost: approximately $67,000 assuming cost of this expert reviewer at $400/hour.

The TAR review model represents a savings of be-tween $58,000 and $244,500. The numbers are even more impressive for cases involving larger volumes in the TAR model.

Firmly established and frequently used statistical sampling protocols determine the accuracy of the TAR results. The sample size required for statistically sound results goes up fractionally in comparison to increases in the overall document population. Thus, the costs of utilizing TAR do not grow proportion-ally with the overall document volume whereas the costs of LHR do. With the dramatic cost-savings, every legal department should be educating them-selves on how to leverage TAR.

In addition to the costs associated with linear review, the reliability of using search terms to de-termine the corpus of documents for linear review is also being challenged. Studies and judicial com-mentary have increasingly called into question use of search terms and subsequent initial review by scores of review personnel.1 Search terms are known to capture irrelevant documents due, in large part, to the flexibility and variability of human language.

For example, if you look up “table” in the dictionary you find over half a dozen different definitions and common uses. 2

Search terms are also under-inclusive, failing to capture all relevant documents. Failure to capture, identify, and produce relevant documents, whether harmful or helpful to your litigation strategy, can have consequences to the overall success of your case. Un-certain efficacy of search terms also leads to a num-ber of complex and expensive side-processes in the LHRmodelincludingQCproceduresandsamplingofdocuments not captured by search terms.

TAR eliminates the need to use search terms to cull the document set for review to a manageable size. Due to the statistical sampling methods, TAR can be employed across huge document populations, the review of which was previously considered unfeasi-ble. In the LHR model, you typically have to rely on search terms to reduce your data set.

TAR enables you to set aside this concern because a million document set in TAR does not require four times the human effort of the 250,000-document set discussed above. Instead, the increase in the volume reviewed by the “expert” reviewer would likely be in the range of 3,000 to 10,000 documents.

TAR has also begun delivering on the promise of decreasing inconsistent relevancy decisions that of-ten plague LHR models. Inconsistency in decision making is an issue known to virtually anyone who has managed LHR.

Although we draw largely on personal experience in discussing inconsistency in document review de-cision making in the LHR model, there is a growing body of evidence supporting this. ___________________________*See, e.g., da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 ALC AJP, slip op. at 20 (S.D.N.Y. Feb. 24, 2012); Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. 2008) (Grimm, M.J.); David L. Blair & M. E. Maron, An Evaluation of Retrieval Effectiveness for a Full-Text Document-Retrieval Sys-tem, 28 Comm. ACM 289 (1985).

*www.merriam-webster.com/dictionary/table

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In the TAR model, a single expert reviewer con-ducts a review of a small percentage of the docu-ments. This single expert reviewer should have strong direct familiarity with the issues, facts and themes of the case. This, in turn, will typically result in the reviewer making more consistent decisions than a large group of reviewers. The increase in con-sistency is attributable to two primary factors. First, human document review involves human judgment and subjective decision-making.

A single person is likely to make more consistent decisions than would a small group of people work-ing independently. The larger the review group, the greater the inconsistency. Second, document review teams are rarely as familiar with the issues and facts of the case as the core litigation team.

Document review teams are often introduced to the issues and facts of the case on the same day that they start their review and well after commence-ment of the litigation. The core litigation team, on the other hand, has been uncovering the facts of the case since the moment they received notice of the case. This can be months before a document review begins. These two factors are key ingredients in the accuracy improvements we see in TAR models.

Overall, TAR is an excellent alternative to LHR for first pass review. As discussed above, TAR is success-fully addressing the costs, search term efficacy and review accuracy weaknesses of LHR models. Howev-er, TAR is not yet a singular solution ready to replace all phases of LHR.

“TAR is an excellent alternative to LHR. “___________________ *See, e.g., da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 ALC AJP, slip op. at 20 (S.D.N.Y. Feb. 24, 2012); Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. 2008) (Grimm, M.J.); David L. Blair & M. E. Maron, An Evaluation of Retrieval Effectiveness for a Full-Text Document-Re-trieval System, 28 Comm. ACM 289 (1985).

*www.merriam-webster.com/dictionary/table

LHR: When and Why?

Up to this point, you may be thinking that we re-allydislikelinearreview.Quitethecontrary,weactu-ally believe LHR has a valuable place in eDiscovery for at least another decade if not two. There are phases of review, certain data sizes and specific data types particularly well-suited to human linear review. It can be a very powerful tool when utilized in a thoughtful and deliberate manner. As with any complex task, ef-ficient and effective LHR requires proper preparatory work, clear decision parameters, quality personnel and sound management and oversight.

LHRisstillagoodsolutionforQCreviewstoverifyTAR, finalization of privilege decisions and creation of privilege logs, numerous issue code reviews, and re-views where summaries or other human language in-put is required or helpful. Until judicial and industry acceptance of TAR increases to near-universal levels, LHRwilllikelybeutilizedasaQCmechanismtoverifyor confirm that the machine-coding decisions during TARare reliable. QCofTAR results isnotfirmlyes-tablished as a requirement across the legal review in-dustry or the judicial landscape. However, the recent da Silva Moore ruling shows that judges will expect a certainlevelofQCreviewagainstthedocumentsTARidentified as not relevant.

Judicial and industry acceptance of TAR’s abil-ity to identify non-relevant documents is increas-ing. However, it will be some time before corporate clients and litigators feel confident enough in TAR results to forego human review of the documents identified as relevant. Currently, human review of at least a sample of TAR results is used to confirm responsiveness decisions made by the computer.

LHR is also frequently used subsequent to TAR to assign issue codes, indicate confidentiality designa-tions, identify or verify privilege content, apply re-dactions of privilege content, and create a privilege log. Traditionally, in LHR, these tasks are completed in what many refer to as second pass review. LHR is well suited for these tasks. Existing TAR platforms do not yet excel at the individual actions that are part of these tasks.

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LHR is still a superior option in smaller matters where the additional cost of TAR outweighs the cost of LHR. Matters without a lot of ESI still exist in many areas including employment and small business. In keeping with the goals of proportionate discovery, a more expensive TAR model makes little sense in these cases.

Even in matters with a large eDiscovery footprint, LHR is a very useful and necessary approach for cer-tain subsets of data types. Specifically, LHR is a supe-rior solution for non-text based documents including image file types (e.g. jpg, video files, audio files), low/no text based files (e.g. .dwg or other AutoCAD re-lated file types), and structured data (e.g., numerical database files).

“Ten to twenty years from now, we suspect that large groups of re-view attorneys sitting in a single room reviewing documents for months on end will seem as foreign

and antiquated.” _____________________ *da Silva Moore, at 9-12; It should be noted that the QCstandardisnotperfection–asJudgePeckrecentlynoted “the Federal Rules do not require perfection.” id., at 21-22 citing Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp. 2d 456, 461 (S.D.N.Y. 2010); “The Court reminded the parties that computer-assisted review ‘works better than most of the alternatives, if not all of the [present] al-ternatives. So the idea is not to make this perfect, it’s not going to be perfect. The idea is to make it signifi-cantly better than the alternatives without nearly as much cost.’” da Silva Moore, at 11 (citation omitted). For example, drawing redactions to remove privi-leged or protected from an otherwise relevant non-privilege document.

The changes and solutions offered by TAR and some of the advanced applications discussed above are no longer “coming,” they are here. Five to ten years ago, LHR was the dominant (and really the only) option. Currently, LHR is still in greater use than TAR. Five years from now, the roles will probably have switched with TAR being in greater use than LHR as a first pass review op-tion.

Ten to twenty years from now, we suspect that large groups of review attorneys sitting in a sin-gle room reviewing documents for months on end will seem as foreign and antiquated as large-scale hardcopy reviews seem to the most recent law school graduates. Those of us who learn how to embrace these changes and leverage the strengths of TAR and LHR models to offset the ex-isting weaknesses of each might very well be the leaders of what we believe is the nascent tech-nology revolution in the legal services industry.

About the Authors

Beau Holt Beau manages Lighthouse eDiscovery’s entire project management staff, both technical proj-ect managers and Lighthouse’s Hosted Solutions group, As an attorney with over 12 years of eDiscov-ery project management experience, Beau has a deep knowledge of all aspects of complex litiga-tion and has been a frequent guest speaker at industry events. Before joining Lighthouse, Beau was an eDiscovery attorney for K&L Gates LLP. Debora Jones As Director of Product Strategy, Debora is responsible for designing product and services for Lighthouse.

Prior to joining Lighthouse, Debora was a commercial litigator at Weil, Gotshal & Manges, LLP and at McNaul Ebel Nawrot & Helgren PLLC. Debora received her J.D. from The George Wash-ington University Law School. She is licensed in New York State, the District of Columbia (inactive membership), and Washington State.

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According to recent surveys, 70 percent of law firms reported an increase in workload for their litigation support and e-discovery departments in 2012. The industry is expected to reach $7.2 billion by 2017 (240% total growth).

To meet the need for formally trained eDiscovery professionals, OLP (Organization of Legal Professionals), a leader in online, interactive train-ing and certification exams, will launch its eDiscovery Project Management

Certificate Program covering key principles along with practical instruction in legal project management with an emphasis in eDiscovery.

The five-month, 8 course rigorous program connects students with foremost leading experts. Jennifer Swanton, Esq., eDiscovery Project Specialist for Medtronic, heads up the program. “I am very excited to be a part of the new eDiscovery Certificate Program from the Organization of Legal Professionals. I have been a member for the eDiscovery world for many years and feel this program fills a void in our community. This is a set of courses covering a broad range of topics that a variety of legal profession-als will be interested in and at an affordable cost. We will cover the basics, but will also delve into more advanced topics such as forensics and technology assisted review. However, I think the most exciting pieces of the program are the labs and the tool dem-onstrations that will allow the participants to see real world applications of what they are learning in the courses. I feel strongly that everyone participating in the program will come away with a better understanding of the eDiscovery world and how to prosper in it.”

The program only accepts 15 students. There are 8 courses including two labs. The first program started December 4, 2012. February’s program has sold out. The next course be-gins late February.

OLP Offers eDiscovery Project

Management Certificate Program

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Topics include: Legal Project Management; EDRM; International eDiscovery; Fundamentals of eDiscovery; eDiscovery Project Management; Design & Implementation of Cost Controls; International eDiscovery; eDiscovery & Information Governance; Case Management Lab. The program is taught by known experts including Doug Mitchell (Partner, Boies Schiller), Linda Klein, Esq., (Managing Partner, Baker Donelson, Georgia offices; Past President, Georgia State Bar Association), Jennifer Swanton, Paul Easton, (Legal Project Management Specialist), and Dr. Gavin Manes, among others.

Develop a path to an eDiscovery career. To find out more about this exciting program, please visit our website at: http://www.theolp.org/Default.aspx?pageId=1425608.

Or call: 760-610-5462 info@theolp.org

OLP Offers eDiscovery Project

Management Certificate Program

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Font Matters - A Trial Graphics Consultant’s Trick to Overcome Bias

By Ken Lopez

A study in the field of social psychology indicates that the type font in which an argument is presented has an effect on how convincing it is. For trial graphics consultants and litigators alike, this is potentially very big news.

The study, published in the Journal of Experimental Social Psychology [pdf ],tested the effectiveness of political arguments in convincing people tochangetheirminds–andalsotestedpeople’sattitudetoahypotheticaldefendant in a mock trial.

It is well known that people tend to disregard arguments that vary from their own longstanding views and to take note of arguments that support their views. This phe-nomenon is known as confirmation bias. For litigators and trial graphics consultants, we know this means judges and jurors will only closely pay attention long enough to confirm what they already believe - so, we need tactics to overcome this bias.

The idea behind such research was to pres-ent the arguments in hard-to-read type faces (e.g. light gray bold and italicized Haettenschwiler, and, the scorn of all design professionals, Comic Sans italicized)

and to see whether confirmation bias was just as strong as when the arguments were presented in normal, easy-to-read type (Times New Roman).

Below are two sample trial graphics that compare two of these fonts. The first image uses easy-to-read Times New Roman for the callout. And the second uses hard-to-read light gray Comic Sans italicized.

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Font Matters - A Trial Graphics Consultant’s Trick to Overcome Bias

By Ken Lopez

And the second uses hard-to-read light gray Comic Sans italicized.

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The result of the study was that confirmation bias was moderated by the use of the hard-to-read type. Normally, those who believed the defendant was guilty would stay with that view after reading the arguments pro and con, and the same would be true of those who thought the defendant was innocent. They wouldn’t change their views.

But with the hard-to-read type, more people began to seriously consider the arguments against their initial position.

“We showed that if we can slow people down, if we can make them stop relying on their gut reaction -- that feeling that they already know what something says -- it can make them more moderate; it can have them start doubting their initial beliefs and start seeing the other side of the argument a little bit more,” said graduate student Ivan Hernandez, one of the leaders of the study.

What might this research mean for trial graphics consultants and litigators?

First, there’s no question that confirmation bias exists among jurors. A juror who, because of the opening statement or for some other reason, approaches the trial evidence with a certain perception, is unlikely to change that perception.

That is one of the trial lawyer’s toughest challenges–toreachajuror(orjudge)whostartsout against his or her client and to get that juror to reconsider.

This study seems to say that hard-to-read typog-raphy will “disrupt” that bias and lessen its persis-tence, perhaps by making people “slow down.”

This may affect the preparation of litigation graphics by trial graphics consultants by forcing them to consider whether a bias against their cli-ents exists, and if so, making exhibits more, not less, difficult to read. This might mean that text call-outs from scanned documents should not be retyped and that persuasive titling should be in harder to read fonts.

We will begin testing these findings with our mock juries, and if they prove successful, testing them at trial as well. Anything to make jurors (meta-phorically) stand up and listen (that is within ethical and legal boundaries) is fair game for trial graphics consultants.

About the Author

Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litiga-tors from all major law firms on more than 10,000 cases with over $2 trillion cumu-latively at stake. The A2L team is comprised of psychologists, jury consultants,trial consultants, litigation consultants, attorneys and information designers who provide-jury consulting, litigation graphicsand trial technology. Ken Lopez can be reached at lopez@A2LC.com.

“If we can slow people down, make them stop relying on their gut reaction -- it can have them start doubting their initial beliefs and start seeing the other side of the argument a little bit more.”

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T he first step to critiquing an expert report on damages involves reviewing the author’s creden-tials and qualifications.

The Rules of Civil Procedure stipulate that it is the expert’s duty to provide opinion evidence that is related only to matters that are within the ex-pert’s area of expertise. It therefore makes sense to conduct a thorough review of the expert’s area of expertise. I suggest obtaining and reviewing the author’s curriculum vitae, or CV, which should be attached to the report as an exhibit.

According to The Litigator’s Guide to Expert Wit-nesses,

“A critical review of the opposing expert’s resume is the most often overlooked but wonderfully useful source of cross-examination ammunition. An expert may have carefully reviewed the available informa-tion, critically reviewed the literature in the area, meticulously arrived at his opinion and artfully drawn his conclusions, but if he padded or fudged his resume he will be destroyed on cross examination.” [1]

A summary of some questions to consider while reviewing the author’s CV is as follows:

1. What training and education has the author obtained? What professional designation(s) does the author have (e.g. CA, CBV, IFA, etc.)?

2. What professional standards must be followed in light of those professional designation(s)? For example, Chartered Business Valuators (CBVs) are required to follow the professional standards of the CICBV for Expert Reports (https://cicbv.ca/practice-standards/)

3. What experience does the author have? Does it include loss quantification, valuation, accounting, statistics, industry, etc.

4. Has the author provided expert testimony before? If so, what was the outcome?

5. What publications and/or speaking en-gagements has the author prepared/present-ed? Are there any inconsistencies between his/her present opinion and those prior writings?

I was once retained by the defendant in a breach of tender matter (with respect to a construc-tion project) to review the plaintiff’s expert report with respect to a claim for lost profits. The plain-tiff’s expert report was prepared by a Chartered Accountant that did not appear to have any spe-cific training or experience with loss quantification. The plaintiff’s expert report quantified lost rev-enues as a result of the breach but did not take into account a profit margin on the revenues. As a result, the costs that would have been incurred to gener-ate the lost revenues were disregarded. This was a serious deficiency which led to a significant over-statement of damages. Our responding report high-lighted this as one of our major concerns with the conclusions contained in the plaintiff’s expert report.

I suspect that the lack of training and experi-ence in damage quantification may have contrib-uted to the quality of this expert report, including the reasonableness of its findings. This case never did proceed to trial as the parties ended up settling the matter out of court for much less than the plaintiff expert’s assessment. However, this case illustrated the importance of reviewing the author’s creden-tials and qualifications in critiquing an expert report. __________________________________1. The Litigator’s Guide to Expert Witnesses, Mark J. Frei-man and Mark L. Berenblut, 1997, page 41.

“This was a serious deficiency which led to a significant

overstatement of damages.”

Critiquing an Expert Report: Step 1 - Credentials

By Jason Kwiatkowski

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A fter checking the author’s credentials, the second step to critiquing an expert report involves identifying any major scope limitations, restrictions and qualifica-tions rendered on the conclusions. This will help ascer-tain whether or not sufficient work was conducted by the expert to support the conclusions arrived at. The extent to which the expert’s scope of review has been restricted can seriously impact the reliability of the find-ings contained in the report.

An expert report should explicitly identify any limita-tions in the author’s scope of review. In Canada, Char-tered Business Valuators (CBVs) must follow the Practice Standards of the CICBV for Expert Reports. Practice Standard 310 states,

“The Expert Report shall contain a detailed scope of review that clearly identifies the specific information upon which the Expert relied to arrive at a conclusion. Where the conclusion is qualified by a scope limitation, the limitation shall be explained, setting out the rea-sons for the limitation and disclosure of the potential impact on the Expert’s conclusion.” [1]

Some potential scope limitations to be mindful of while reviewing an expert report include:

• Not having access to relevant information or key documentation;

• Not being permitted to interview key individuals;• Not conducting a site visit or a tour of the com-

pany’s operating facilities; • Not relying upon other specialists outside the au-

thor’s area of expertise (e.g. real estate appraiser, machinery and equipment appraiser, economist, market research specialist, etc.); and

• Not having reliable financial information (e.g. financial statements prepared internally by man-agement and not audited or reviewed by an exter-nal accountant).

Where do you find scope limitations in an ex-pert report? Scope limitations should be separately identi-fied in the expert report and may be set out in one of the following sections of the report:

Scope of Review & LimitationsRestrictions&QualificationsConclusion (e.g. immediately preceding or after the conclusions)MethodologyorApproachtoQuantification (e.g. within the section that explains the procedures undertaken to quantify the damages)

Limitations in the scope of an expert’s review can negatively impact the quality and reliabil-ity of that expert’s findings. Scope limitations are generally easy to spot as there is typically a section in the report designated for their iden-tification.

Occasionally a scope limitation may not be explicitly highlighted in the report. It may, however, be alluded to where the calcula-tions are being explained or in the notes to the schedules where the calculations themselves are contained. It is, therefore, worthwhile to scrutinize the report for any indication that the author was limited in his/her scope of review and question what impact that limitation may have had on the conclusions contained therein. About the AuthorJason Kwiatkowski, CA, CBV, ASA, CEPA, Part-ner and President, Valuation Support Partners, LTD. provides business valuation and litigation support services to law firms, private and public companies as well as non-profit organizations and individuals.

Critiquing an Expert Report: Step 2 - Scope Limitations

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When an OLP Board of Governors member tells you that he has made plans to jump out of an airplane, you have to listen. I mean, who would do such a thing?

Nigel Murray, that’s who.

Take one fiftyish year-old Brit, throw in a good cause, give him a difficult challenge and sit back for an incredible ride.

Prior to the jump, Murray’ told us, “I have rather foolishly planned to do a parachute jump (which will actually be my first time).” Lordy, lordy.

“The aim is that I will leap out of a perfectly serviceable aeroplane at 13,000 feet and free fall for 12,000 strapped to a Red Devil. The doctor has de-clared my body fit (though doubts my sanity) and the weather forecast is looking good, albeit cold.

Apparently, for every 1,000 feet ascended the temperaturedropsbyonedegree–soIdon’tin-tend to hang around at altitude for very long.

The reason for doing this is to raise needed funds foroneofourbestcharities–HelpforHeroes–who provide practical support to servicemen who have had life changing injuries, to enable them to get their lives and confidence back together, so that they can look forward to a worthwhile future.

“My old Regiment came back from Afghanistan this month,” says Murray, “and although everyone came back alive, one soldier came back with no legs and another minus a foot. It is guys like these who need our support and help.”

December 1st saw a smiling Brit tandemly jumping out of a perfectly good airplane. Racing through the sky at 140 MPH, adrenaline pump-ing, a freefalling Murray landed on the ground safely and soundly.

He writes:

Dear All:

Your part was to donate money to Help for He-roes, my part was to jump out of a perfectly ser-viceable aeroplane.

I did this today - from 15,000 feet and it was the most amazing experience. Thoroughly en-joyable, and once I got over the interesting part of actually departing the plane (looking down it seemed quite high!)

it was a great experience - 45 seconds free-fall at 140 miles an hour then about 8 minutes with the parachute. Beautiful view of my house and Salisbury Plain on a lovely (albeit chilly) day. I have a video which needs to be translated so that it can be uploaded (I suspect I will need to rely on some technical support in the office before you see it). Once it is available I will let you know.

Thank you again for your sponsorship - most kind.

Best regards.

Nigel

Further details on the charity can be found at www.helpforheroes.org.uk

Cover Story

When to Jump Out of a Perfectly Good Airplane

(A pretty typical story for Nigel Murray)

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21

The Best-Kept Secrets to Using Keyword Search Technologies

Building Structured Searches Part II

The Best-Kept Secrets to Using Keyword Search Technologies

Building Structured Searches Part II

T The Best-Kept Secrets to Using Keyword Search Technologies

Building Structured Searches Part II

By Philip Sykes and Richard Finkelman

Introduction

In Part 1 (see OLP eJournal Summer 2012), we covered the two major indexing and search engines most often used in eDiscovery solutions, dtSearch and Lucene. Now we

will look at using a structured methodology for building searches. We will work with dt-Search syntax, but the same approach applies when using a Lucene-based eDiscovery solu-tion.

Proposed Search Terms When starting with a set of proposed search terms, the first step is to organize and clean up the list. In constructing your searches, it is recommended that, un-

less you work with a case-sensitive index, you use lower case for the search terms and upper case for the Boolean operators to differentiate them. In this phase, identify:

o Similar sets of terms that can be efficiently combined. For example, if there are several AND searches containing common words like “contract AND sales,” “contract AND modifi-cation,” or “executed AND contract,” these can be combined into [(contract AND (sales OR modification OR executed))].

o Terms that are unnecessary because they would be found by other variations of the words that are in the list. For example, if the list contains “contracts,” “contracted,” “contrac-tual,” and “contract*,” the only term needed is contract*, since it will return everything the other three terms would find, and presumably more.

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T The Best-Kept Secrets to Using Keyword Search Technologies

Building Structured Searches Part II

By Philip Sykes and Richard Finkelman

o Terms that need to be extended. For example, a list containing names like "William Jones" and "Robert Smith" probably needs to be extended to include "Bill Jones," "Bob Smith," and possibly "Rob Smith." Peoples’ names should also normally be converted to proximity searches like [((bill OR will*) w/3 jones)] and [((bob OR rob*) w/3 smith)].

o Terms with the same spelling but containing different punctuation and cases (unless there will be a case-sensitive index). For example, if the list con-tains the words "case sensitive" and "case-sensitive," only "case sensitive" is need-ed because the hyphen is treated as a space during indexing. If the list contains "Sales Agreement" and "sales agreement," only "sales agreement" is needed.

o Problematic proximity searches. Normally these will be "nested" search-es like "certified w/5 records w/2 filed." While the search may return re-sults, it is an ambiguous search that needs to be properly defined to en-sure that the dtSearch syntax is correct. The first step for cleaning up this nested proximity search is to add parentheses to clarify the search requirements: o Is the request [((certified w/5 records) w/2 filed)], or should it be [(certified w/5 (records w/2 filed))]?

o If we assume the desired search is [(certified w/5 (records w/2 filed))], then we need to know if just “records” must be within five words of “certified” or if either “records” OR “filed” can be within five words of “certified” as long as “records” is within two words of “filed.” In other words, which of the following sentences should be returned by the search?

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1. He left after he filed the records that had been certified, or

2. He certified that he had filed the records.If only “certified” needs to be within five words of “records” (as in sentence 1 but not sentence 2), then the correct dtSearch syntax is:

[((certified w/5 records) AND (records w/2 filed))] If either “records” or “filed” needs to be within five words of “certified” (as in both sentences 1 and 2), then the correct dtSearch syntax is:

[(((certified w/5 records) OR (certified w/5 filed)) AND (records w/2 filed))]

o Also, using Boolean operators without any proximity boundaries means that the terms joined by the operators can appear anywhere in the document. So, when you start testing, if a search returns unexpectedly large numbers of documents, one consideration should be wheth-er it is feasible to constrain the boundaries by using one or more proximity searches.

o You must understand a couple of important factors when using a Lucene-based solution. First, since Lucene does not support wildcards inside quotes, you will need to identify the reasonable list of words to be used in place of the wildcard(s). While some Lucene-based tools provide the capability of viewing words in the index, others do not. If the tool you use does not provide this capability and you have an index in dtSearch, start a new search in dtSearch and type the word up to the location of the wildcard character. You will see the different words that are in the index. If the Lucene-based tool provides the capability of viewing the words in the index, just use the Lucene index. If this is not possible, run a search for the standalone term with the wildcard character (e.g., contract*) and note the number of documents returned. Then run a search for [(contract* AND NOT (contract OR contracts OR contracted OR contractual))]. (Note: If you iden-tify any additional variations that should be

included, they should be added at the end of the list.) The result will most likely be significantly reduced, and searching through the remaining documents for additional reasonable terms should be easy.

“ If the Lucene-based tool

provides the capability of viewing the words in the

index, just use the Lucene

index.”

The other important factor, as was explained in Part 1, is that Lucene doesn’t support Boolean op-

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o For example, if our dtSearch query is [((oil OR gas) w/10 (stock* OR future* OR swap*))], the pars-ing and reformatting would create a Lucene query [“oil stock”~9 OR “oil stocks”~9 OR “oil future”~9 OR “oil futures”~9 OR “oil swap”~9 OR “oil swaps”~9 OR “gas stock”~9 OR “gas stocks”~9 OR “gas fu-ture”~9 OR “gas futures”~9 OR “gas swap”~9 OR “gas swaps”~9], although it may be necessary to increase the ~9 to ~11 to deal with the orders of the search terms or to expand this query to in-clude all of the terms with the orders reversed. (Note: The Lucene edit distance should be one less than the dtSearch proximity value, because the dtSearch proximity distance is “within” or the number of words between the terms plus one.)

Create a Test Set of Documents

It is often helpful to work with a test document set, partic-ularly when complex proximity

searches are to be evaluated. If a set of docu-ments has already been reviewed and identi-fied as responsive in the matter, it should be included in the test set along with a group of documents that is not responsive. If complex proximity and Boolean searches like what was shown above will be used, it is helpful to build test documents that contain the words and spacing that will verify the search syntax is correct.

Break the List of Terms into Discrete Parts and Test

The next step is to run parts of the keyword terms as preliminary searches and record the result-ing numbers. If there are a large number of single terms or phrases, they can be combined with OR operators. But if you get a large number of docu-ments returned, it is often helpful to split the search to determine which term(s) bring(s) back large num-

bers of documents. If you determine that a few terms return ex-cessive numbers of documents, consider alterna-tives to limit the number. For example, either look for other terms that could be combined with an AND or consider using a proximity search to limit the number of documents being found. Tracking the evolution of your search is extremely impor-tant. Microsoft Excel works well to not only track the steps, but also help make sure the query is

the steps, but also help make sure the query is as-sembled correctly. As you build the worksheet, make sure that you put your searches inside parentheses, for two reasons: first, it keeps the various searches discrete when you begin combining them later; and second, it prevents Excel from removing quotation marks when you paste the search terms into a cell. Here is an example where we have run two

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documents, not hits, returned by the search. Once the phase 1 searches have been completed, total the counts of the individual searches:

Search String Phase 1 Counts Totals(jeff* w/2 skilling) 164 ----------(ken* w/2 lay) 274 438

After the preliminary searches have been run, inspect the outliers to see if there is something wrong with the syntax that causes either an extremely high or low count. If the syntax is correct and the counts are high, consider revising the search to be more focused, if possible. For example, if it contains a proximity search, is the proximity value too high? If the Boolean AND opera-tor is used, should it be tightened up by switching to a proximity search rather than by looking for the words anywhere in the document?

Once the review of the phase 1 searches is complete, start concatenating them by combining them with OR, and note the combined counts.

Search String Phase 2 Counts((jeff* w/2 skilling) OR (ken* w/2 lay)) 344

Make sure that the combined search count is greater than both of the phase 1 search counts but less than or equal to the phase 1 totals. The following examples show what happens if parentheses are not in-cluded around each preliminary search when you start concatenating:

Search String Phase 1 Counts(oil OR gas) w/10 (stock* OR future* OR swap*)

1,113 ---------

bank* AND (gas OR oil) 1,927 3,040

These two phase 1 searches contain proper syntax when run individually, but after combining the two searches the results are:

Search String Phase 2 Counts

(oil OR gas) w/10 (stock* OR future* OR swap*) OR bank* AND (gas OR oil) 1,255

1,255

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The resulting count is greater than the first phase 1 search but less than the second. After adding the missing parentheses, the corrected search results are:

This result meets the criteria of being greater than both of the phase 1 counts and less than or equal to the phase 1 total.

Continue the search string concatenation until you have a single, combined search. If you start with ten individual searches in phase 1, then combine them in pairs so you have five searches after phase 2. Then start combining them, following the same process until you are down to a single search. If you have cre-ated an index of known responsive and known non-responsive documents, test the search against both. The search should return all of the known responsive documents; if any documents are not returned by the search, examine those documents to figure out why they were not found, and modify your search accordingly. The search against the index of known non-responsive documents will hopefully not return a significant number of documents. If it does, locate the terms that register hits, and see if the related search terms can be made more focused without excluding any of the known responsive documents.

Have a Good Text Editor A good text editor is essential for building your searches. Microsoft Word’s smart quotes can cause inconsistent behavior with some search tools. The problem is not related to the documents

that were indexed, but to how the search tool parses the query text. While you can configure Word to not use smart quotes, you may want them for normal document work. You need to replace existing smart quotes/apostrophes in the search terms with straight quotes/apostrophes.

Notepad++ is an excellent open-source text editor that has several helpful features, and it is also Uni-code compliant. One of the most helpful Notepad++ features is that it checks for matching parenthe-ses in search phrases. Figures 1 and 2 show how mismatched and matched parentheses are displayed:

Figure 1: Mismatched Parentheses

Search String Phase 2 Controls(((oil OR gas) w/10 (stock* OR future* OR swap*)) OR (bank* AND (gas OR oil)))

2,549

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Figure 2: Matched Parentheses

Summary

Learning how to build structured searches is not just a skill needed for effective culling of data prior to loading a set of data for document review. Properly constructed keyword searches are valuable during document review and production to sample and test results. It is not uncommon to pick up new key-words or new variants of existing keywords as a review progresses. The ability to go back to your previous searches, including searching data that was not originally deemed relevant is one of the best kept secrets of keyword analysis.

Finally, the growing use of predictive coding has led some people to believe that keyword searching is not a valuable skill set, however as with all new technologies there are several evolving issues that keyword searching can address. It can still be a valuable tool for culling the number of documents that go into a pre-dictive review system as a growing number of predictive systems support this approach. Keyword search-ing in predictive systems is also a helpful skill for quality control during post review analysis. It should be clear that understanding how the different tools work and having a consistent, structured approach to building your keyword searches are fundamental to a successful project regardless of which review tech-nology is being used.

“A good tech editor is essential for building your searches.”

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About the Authors

Richard Finkelman is a Director and Practice Group Leader of Berkeley Research Group’s Electronic Discovery Practice. Mr. Finkelman brings more than 25 years of experience helping clients manage information in litigation, regulatory and business matters. His experience includes assisting clients with all aspects of litigation support in complex matters ranging from Securities Class Actions to Intellectual Property Disputes to high profile Regulatory matters.

As a consultant he has advised clients on matter specific identification, preservation, collection, processing, hosting, review and production of electronically stored information (ESI). He has also served as a 30(b)6 witness for companies on multiple matters. His clients have included global corporations from the technology, retail, automotive, transportation, insurance, finance, and construction industries. Mr. Finkelman regularly works with clients to help them assess, select and implement technology to support their legal and compliance needs. In this role he has worked on projects involving legal holds, litigation risk, email archiving and SharePoint management. Additionally, he has helped clients migrate complex Microsoft Exchange and SharePoint environ-ments to Microsoft’s Business Productivity Online Standard Suite (BPOS), providing them litigation con-sulting to ensure that legal and compliance requirements are met before, during and after migration. Mr. Finkelman is a Member of the Board of Directors of Public Counsel, The Nation’s Largest Pro Bono Law Firm and a member of the Advisory Council of OLP (Organization of Legal Professionals). Philip Sykes is a Senior Managing Consultant of Berkeley Research Group’s Electronic Discovery Prac-tice bringing more than 20 years of experience working in litigation support and electronic discovery. His experience includes work on high-profile cases from HSR Second Requests from the FTC and DOJ to IP matters to complex securities cases. His expertise includes keyword analytics, data processing and analy-sis, data management, on-line review tools, and document productions. He regularly assists counsel and experts in understanding what information exists in databases and how it is relevant to their matters.

Mr. Sykes works with clients to assist them with discovery related issues including preservation, collec-tion, processing, hosting, review and production, and he has experience with multiple software programs includingRelativity,iCONECTnxt,MicrosoftSQLServer,Lucene,Kazeon,Clearwell,discover-eandothers.

The ability to go back to your

previous searches, is one of the best kept secrets of keyword analysis.

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Who’s in Charge of the Data Management Initiative for

Your Company? 10 Steps Toward Getting Your House in Order By Linda Sharp, Esq.

We have all heard and complained about the costs of eDiscovery. We’ve battered around ideas and even implemented solutions that profess to be the “Holy Grail” to solving the problem, to only fall short. The bottom line, there are NO SHORT CUTS.

The only way to solve the eDiscovery dilemma is to solve the data management problem. To do that, we can’t look at data in silos or bubbles, we have to look at it as an enterprise problem. But keep in mind, that problems are just the flip side of a coin with the other side, an opportunity. Life is all about what we do with those moments, carpe articulus, seize the moment in time. Here are some tips for implementing an enterprise strategy that will reduce operational risk, streamline records management initiatives and make strides in reducing eDiscovery costs that really make a difference. No more messing around!

1. An Enterprise wide problem requires involvement across the enterprise: Get the whole team involved, this isn’t just a legal initiative! Compliance, IT, and records all need to be on the same page to ensure that data management policies are consistent throughout the company. Better yet, that they can actually be deployed! Sit down and ask yourselves: what are the specific needs for each business unit? How are you going to make sure all parties are satisfied when conflicts inevitably arise? For example, what if two different people “own” a document, but have different retention requirements? Hmm, how are you going to deal with that? How many copies of the same document are there going to be? Would a cloud

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or an on-premise solution be more appropriate? These are important questions to ask each group as you work through the process. Remember, creating a policy is nice, but if you can’t carry the policy across both paper and records, it isn’t worth the “paper” it’s written on.

2. Identify a data management strategy: Work together to figure out what kind of solution and policies best suit your company’s needs. What are your organizational requirements? What data types do you need to capture? You have to take into con-sideration the direction that the company is going. Is your industry ripe for litigation? Is the company growing via acquisition? These questions all play an important part in identifying your next steps.

3. Craft retention policies: Before you can imple-ment a data management policy, it is vital to first de-sign retention policies that fit your organization, and your employees’ workflow. Look at industry stan-dards, existing policies within your organization, and the advice of experts to design a retention schedule tailored to your company’s and employees’ particular needs. Ensure your organization keeps documents long enough to satisfy business and compliance requirements but not necessarily forever.

Remember, one of the biggest struggles that affect eDiscovery costs as well as IT initiatives has absolutely nothing to do with the business. Millions of dollars a year are spent by corporations doing document review and storing data that is employee personal information. From the “honey, pick up milk” email to the Amazon.com and eBay.com transac-tions. This ever growing volume of non-business related information has been known to represent over 50% of the data that corporations today are storing and manipulating. Design a retention schedule and set specific criteria that will that assist you in automating the elimination of this pure garbage from your data stores.

4. It’s all about RIM: Proper records manage-ment is key to ensuring retention schedules are carried out. When it comes time to select a solution consider whether you need automatic classification, manual classification, or both. For most companies,

Cloud v. On-Premise Solutions

When it comes to managing data on premise vs. in the cloud, remember, it isn’t a one size fits all. Some data may be appropriate in a cloud environment, while other data may not. A hybrid approach may in fact best fit your company’s needs. Ensure that whatever application you are looking at to “manage” the information, uses the same application and UI (user interface) to retrieve data from disparate locations, including in the cloud. There are many applications on the market that profess to manage information in multiple locations, however, when you peel back the onion, you may find that they are various solutions that were cobbled together. This may increase operational costs, delays in retrieving information as well as affect the integrity of the data retrieved.

it makes sense to look for solutions that will al-low for automated retention classification of docu-ments based on rules that have been defined for specific content. Automated processes are avail-able today that can assist employees in carrying out the very tedious efforts of any viable reten-tion requirement. Not only can it save a company millions of dollars per year in regained productiv-ity time, but it also ensures that classifications are consistent across the enterprise for any given item. If a retention policy changes, it merely requires that you amend the retention period and all docu-ments so classified are moved to their new classi-fication period. But, automated classification may not work for everything, thus you’ll need a solution that offers you the ability to have manual as well as automated processes. It is also important to

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take industry regulations and standards into consid-eration. For example, are you regulated under DoD 5015, or just want to make sure that your organiza-tion meets this requirement? If so, you’ll need to look for a solution that meets these criteria.

I have seen many companies implement policies without consideration of the way it is going to get carried out. For example, implementing policies that employees must personally manage all of their data may not work in your environment. If it does, at what cost to the company?

For example, if you have 20,000 employees and each employee is to set aside 30 minutes per day cleaning up their electronic environment. 20,000 x 30 x 5 x 50 = 150,000,000 minutes / 60 minutes per hour = 2,500,000 hours per year. Assuming a blend-ed rate of $20 per hour = $50,000,000 per year. Deci-sions that you make may cost the company dearly. If you select a solution that could automate even a portion of the disposition process, imagine the sav-ings!

6. Get a firm hold on legal holds: Having a reten-tion plan and a records management solution is all well and good, but it won’t help cure your eDiscovery headaches unless that solution deals properly with legal holds.

Make sure the solution you’re looking at allows for easy-to-apply, defensible preservation holds. There are solutions on the market that allow legal us-ers to apply legal holds to custodians or individual documents with one click. In addition, some solu-tions also allow you to send preservation notices and surveys to custodians. These are all features that can help make your job a little easier. However, it is best served if one application could meet all of your needs. This eliminates moving of information as well as data integrity issues.

In addition, consider the importance of remov-ing legal holds from irrelevant documents. Like the “where should we have lunch?” and junk e-mails mentioned before, preserving unnecessary mes-sages indefinitely increases storage costs and often means you’ll be sifting through documents that oth-erwise should have been deleted. You should select a solution that allows you to easily (if not automati-cally!) lift a legal hold once a document is tagged as irrelevant. What seems like a simple concept can have enormous benefits in the long term. There is no need to keep paying to store information that is clearly irrelevant whether it is internal or external to the enterprise.

Remember, You’re Responsible for 100% of Your Data

When thinking about disposition, it’s especially important to consider all of those places where you have allowed information to leave the enterprise. One of the biggest culprits is the data that was sent to outside counsel and then on to a service provider. Most recently the Southern District of New York, in the GenOn v. Stone & Webster matter reiterated that we are respon-sible for preservation and potentially production of information that is under the GC’s “legal or practical control”, in-cluding data with third parties. Where is your data? What processes have you adopted to ensure that information that is no longer needed for a particular matter has been purged. We know that on any given matter, roughly 5-10% is actually produced, yet, service providers will maintain all of the documents that were tagged “non-responsive” in the data store for the life of the matter all the while: 1) you are paying hosting charges and 2) that data remains ripe for preservation in other matters.

5. Don’t forget disposition: Retention is only one side of the coin. Unless your e-mails and files are actually destroyed on time, a retention schedule means nothing! Don’t let old e-mails you thought were gone come back to haunt you! Instead, make sure you know how you are going to effectively dispose of the information.

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7. Collection and review simplified: Without a proper data management system in place, collection for eDiscovery can become a nightmare. Imaging hard drives, having to wait days for IT to search the Exchange servers, who wants that?

By proactively archiving and indexing all of your company’s data before litigation arises, collection simply becomes a matter of searching the archive. Some solutions on the market even offer advanced search tools, such as proximity and concept searches, and various filters that can help legal find all respon-sive documents quickly and efficiently and reduce the amount of data that must be reviewed.

8. Minimize data movement: Why import and export data between five different programs if you can do everything on only one platform? As any eDiscovery professional who has ever imported terabytes of data only to have a bunch of error mes-sages appear on the screen can tell you, moving data is a hassle and expensive. With all the new technolo-gies that have been developed over the last few years, it is possible to reduce the amount of software required to perform all information management, collection, and review tasks.

In fact, some archiving solutions even offer ad-vanced review tools. Examine your current eDiscov-ery workflows and evaluate where there is room for improvement. Does collection take too long? Do you need a better search engine? Re-evaluate your cur-rent processes. Perhaps one solution that can meet all of these needs is the best way to go. There really is a better way.

9. Reduce review costs: It is no surprise that the costs associated with document review are absolute-ly staggering and companies quiver when they see the monthly review bill. What is the most effective way of reducing these costs? Well, predictive coding may taught that they have the solution and review companies indicate that they have a better workflow. The bottom line is, the only way to reduce review costs is to reduce the volume of information to be reviewed, without jeopardizing missing information.

If we look to ways to “get our house in order”, eliminate non-business information and information that has passed its useful life, review costs will

plummet. Then, apply better processes and tech-nology to streamline the review. Now we’re talking!

10. Unified is the only way to go: The only way to ensure that your data management strategy is fool-proof is by choosing a unified solution.

If compliance, IT, legal, and records each store their data in separate places, it will ultimately lead to duplicate copies, disjointed retention, and incon-sistent search results throughout the enterprise, not to mention the data that sits outside of the enter-prise. That group of data you handed to outside counsel to then be delivered to a service provider. In order to make sure you are in control of your data and avoid any surprises during the eDiscovery pro-cess you’ll need everything to be stored in one re-pository. Work with the other stakeholders in your company to find one solution that will satisfy every-one’s requirements.

But How Do I Pay for This? I’m sure by now you are thinking, “This sounds nice, but we have no budget. Don’t you read the papers? We’re in a recession”. The truth of the matter is, you are already spending the money and often it is many times over what it would cost to take control over your data. For example, imagine being able to reduce stor-age costs by 1) eliminating duplicative data and 2) only maintaining data that has a useful business or legal purpose. Then reap the trickle down ben-efits of reducing eDiscovery costs by eliminating the need to replicate and hand over information to outside counsel to be stored again and again, all of which you are paying for over the life of the matter. If the data at issue across your matters were single instanced within your environment, how much would you save? How much risk would you be able to overt? Imagine, no more processing and hosting charges. Take a look at what you spent last year on the matters that you sent outside of the organiza-tion. The bottom line is, you are spending the mon-ey, several times over. It is about working smarter, not necessarily harder. Linda G. Sharp, Esq., MBA, is the Associate General Counsel for ZL Technologies. She has consulted with Fortune 500 companies and large law firms.

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You’re Being Bullied: Now What? By Merrilyn Astin Tarlton

Yes, a law firm can be a pretty difficult place to work. You’ve gathered together and granted power to people with expensive educations in … well, winning. And that can be less than conducive to productive human relationships at times. Last week, we talked about one unfortunate expression of the dys-functional relationship—bullying. Now let’s talk about steps you can take if

you are on the receiving end of a bullying situation.

Confronting the Bully—Some Dos and Don’ts

Handling a bully is by its very nature difficult. To start, the person bullying you is often in a position of power—your boss, say, or a senior partner or a client. But things aren’t going to get better on their own, and you can’t just grin and bear it forever. You have to confront the bully with his own behavior. Don’t expect that to be easy—but it will be worth it. First some dos and don’t’s to help you prepare.

1. Do get organized and pull together your thoughts before pushing back. Plan-ning what to say ahead of time can jolt you into action so that you are ready when the opportunity arises. Keep a diary of things that the bully has said or done. Gather a group of friends and family around you to bolster you with encouragement. Then take a deep breath and get ready to meet, preferably one-to-one and face-to-face.

• Chooseamomentintimewhenyouarefeelingcalm.• Rehearsewhatyouwanttosaywithafriendorrelative.Askforandacceptemo-

tional support.• Becrystalclearwiththebullyaboutwhatshehasdoneandthatyoufinditunac-

ceptable. It may help to diffuse the heat to use “I” language. For example, ”When you do that it makes me feel ….” This makes it about the effect of their behavior.

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You’re Being Bullied: Now What? By Merrilyn Astin Tarlton

Don’t editorialize. Give it to her straight and allow time to apologize. (But don’t be sur-prised if that doesn’t happen.)

• Explainhowyouwantthingstobedifferentandtheconsequencesifthingsdon’tchange. ”I would appreciate it if you will be more respectful of my contribution and opin-ions in the future. If, after this conversation, you continue to belittle me in meetings, I’ll have no choice but to discuss the matter with the managing partner.” Or, “In the future you are not to enter my workspace unless I invite you in.”

2. Do be aggressive about taking care of yourself and the firm’s productivity. But don’t be “in your face” to the person who is doing the bullying. When confronting the bully, stay calm, speak with clarity, name exactly what is happening and (again) that you find it un-acceptable. There’s no need to explain or justify. The fact that you find it unacceptable is sufficient. Really. 3. Don’t expect your colleagues to speak up. In an ideal world, your colleagues would chime in and express their own dissatisfaction with this behavior, too, because that sends a powerful message to the bully. Studies have shown that if bystanders speak up and challenge bullies, rather than just watching and hanging back, bullies are more deterred. Unfortunately, most co-workers will stay silent and hope the problem goes away on its own without involving them.

4. Do call them out. Yes, confronting a bully is scary and hard. But, as Jonathan Littman and Marc Hershon suggest in I Hate People, bullies are “only effective when they’re on sol-id ground. Ground that you can take away.” They suggest: “Next time he swears or heaves

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a phone book, call it out. Point out that he’s swear-ing or yelling, and leave the room. Or end the call.” This can work in meetings as well. If the bully is talking over you, criticizing and complaining, ask directly what she would recommend instead. Or, ask her to leave the room until you finish your presentation. You need to call out the bully on your terms.

5. Don’t back down. Perhaps the most impor-tant step is to follow through. If the behavior does change for the better, respond positively.

If not, do what you threatened to do and take it to the managing partner or staff supervisor. If that doesn’t work, then it’s time to file a formal writ-ten complaint. Remember, bullies are like naughty children. They know it’s wrong so they don’t want to be found out.

6. Don’t be surprised if all doesn’t go smoothly. You are ruffling feathers. Making waves. Rocking the boat. Whatever you want to call it, you are chal-lenging and confronting someone else’s disrespect-ful behavior, and perhaps the status quo. The out-come may not be neat and tidy. Whatever happens, though, you’ve nothing to gain by gossiping about bullying incidents, or whining to colleagues. It’s important for you to be the grown-up who can name disrespectful behavior for what it is, with the quiet strength that comes from knowing you are doing the right thing.

The outcome may not be neat and tidy. Whatever happens, though, you’ve nothi ing to gain by gos-siping about bullying incidents, or whining to col-leagues.

It’s important for you to be the grown-up who can name disrespectful behavior for what it is, with the quiet strength that comes from knowing you are do-ing the right thing. Be proud of the courage it takes to do something about this problem and take care of yourself.

About the Author Merrilyn Astin Tarlton, Partner/Catalyst at Attorney at Work, has been helping lawyers and law firms think differently about the business of practicing law since 1984. She was a founding member of the Legal Mar-keting Association, past President of the College of Law Practice Management and an inaugural LMA Hall of Fame inductee.

Acknowledgments

Thanks to Jennifer Fay for contributing to this post. She is co-author of the groundbreaking book No More Secrets—Protecting Your Child From Sexual Assault, with Caren Adams. Jennifer has a master’s degree in psychology and has taught at the elementary school level. Currently, she is developing an original theater-based curriculum for lower and middle school teach-ers.

Reprinted with permission from Attorneys@work.com

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Today must have been the day for buses. On at least three occasions, I read the phrase, “In case I get hit by a bus.” My mother used to tell me that. Only she added that I had to be sure to be wear-ing clean underwear just in case.

I commented to my husband that I was reading a lot of cliches lately. He asked me, “Why do people think they would get hit by a bus? Why not get hit by a bicycle? Or a food truck? Why a bus?” I didn’t have the answer. I did think it was a good question. But I really didn’t have an answer.

Which got me to thinking: why do people use so many cliches? A cliche, for example, is saying, “bless you” every time someone sneezes. Do you really mean God should jump off that comfy couch in the sky and personally bless you? Do you pay any attention deep down inside when someone says “bless you” in re-sponse to your sneeze? No. You don’t. You say, “Thank you” to be polite. The exchange is done and frankly, im-mediately forgotten.

It’s the same when using cliches as you write. In busi-ness communications, clichés do not resonate. These word have no meaning and readers do not pay

Why Would You Get Hit By a Bus? (And other good questions about clichés)

attention to any message that the cliché might attempt to deliver.

The mind, having seen the phrase so many times, is desensitized. It skips right over the phrase, sometimes ignoring it completely. If you want people in your firm to pay attention and think that you are a leader, you’re going to have to change the way you write. Here are five of the biggest cliche peeves in the business world.

1. Enclosed please find. Now, really. Would you talk this way? Would you actually walk into a partner’s office, hand him or her a file and say, “Enclosed please find”? I doubt it. Write the way you talk. It’s much better to say, “I am attaching a copy of the blankblank.”

2. Please don’t hesitate to call. Practically all letters explaining anything ends with this bor-ing phrase. Would someone hesitate to call if they had a question? Not a chance (Oops. Cliché Lady, where are you?) Not in this day and age of instant response. It’s much better to say..........nothing.

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Why Would You Get Hit By a Bus? (And other good questions about clichés)

3. As you know. This is dangerous. You are making an assumption that the reader must cer-tainly know about the issue you are about to discuss. What if they don’t? All you have accomplished is to point out their ignorance. They may feel uncomfortable. “Gee,” the reader thinks. “I should have known that.” Or, “Uh,oh. Someone is leaving me out of the loop.” Instead of your reader appreciating your communication, now they probably don’t feel so great about what they have just read. Hmmm....not exactly the goal nor the impression you seek to give. 4. If you will. This cliche started about 10 - 15 years ago. I don’t know who started it but if I see them, I am going to lodge my complaint - in writ-ing. I can’t think of another phrase that emphasizes uncertainty or that questions your confidence. “If you will?” If you will what? I hear that dang phrase on the radio almost every day. All this phrase does is to undermine any strong statement you make, if you will.

Would someone really hesitate to call???

5. At your earliest convenience. How many times have you been frustrated because you asked for something at the reader’s “earliest convenience” only to discover that your idea of “early convenience” and their idea of “early con-venience” is drastically different. as different as day and night. means two different things. brings about a vast dissimilarity in concept. It would be better to say, “Would March 12th work for you? Or, “Would the end of next week be feasible?”

That’s only five of thousands of cliches. I have a list. My suggestion is: if you’re going to use a cliche, find one that is less used and more re-cent - like, “voted off the island.” Yeah. I like that.

About the Author

Chere Estrin is the Managing Administrator and Co-Founding Member of OLP. She has written 10 books on legal careers, hundreds of articles and has frequently been spotted secretly thumbing through her thesaurus in the middle of the night.

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