Legal Technology

LegalTechisms

While attending the LegalTech West Coast show, I observed that the e-discovery field covered the exhibit floor almost as well as the rug. Also, I witnessed the EDD vendors tout the features of their software solutions that one would expect of a mature industry.

STANDARDS AND INTEROPERABILITY

Standards-based applications that can interoperate with other software in the Electronic Discovery Reference Model cater to independent consultants, law firms, and corporations who have not found the all-in-one e-discovery tool. Rhetoric aside, applications that can work together using standards will allow best-of-breed software at every phase in the EDRM and open up options for established players and new entrants in the EDD field to supply software to accomplish discreet tasks. For example: the Extensible Markup Language.

Mimosa announced Nearpoint support for XML, based on the EDRM. The EDRM XML standard will allow Nearpoint to easily transfer electronically stored information in a standard format throughout all the phases of e-discovery. In addition, Mimosa announced the availability of a software developers' kit for Nearpoint and the formation of a partners' program targeted at e-discovery providers.

CUSTOMER ORIENTED

One of the characteristics of a mature software and services company is how well they listen to their customers and continue to grow their products to service identified needs. And in e-discovery, the needs often translate to more file support to acquire, identify and review e-discovery. Example: Fios expands e-discovery services to include native processing of the mbox file format.

The mbox format is a text-based file format that supports a variety of ways to store e-mail, including Google's Gmail and Chat. It is also used in UNIX and Apple Macintosh messaging systems. Fios' added file support hopes to relieve a pain point for corporate clients in processing mbox file formats, which are not all the same.

MAKE IT EASY

In any complex process, lawyers and corporations will look for the easy way; the way that offers the least resistance to success. E-discovery is no different than other complex processes. Vendors who make it easy, will be successful. Example: Clearwell E-Discovery Platform.

The E-Discovery Platform is an appliance that plugs into the local-area network and boasts that it can be up and running in 25 minutes. With an intuitive Web-browser interface, Clearwell claims that e-mails and documents relevant to litigation can be found with little to no training; that the Platform works with e-discovery processes in place; that it requires no change to existing collection methodology; and that it integrates with third party litigation support databases for production via EDRM XML. In practice, this appears to be a plug-and-play answer for e-discovery.

FOCUSED

There are some vendors who satisfy niche tasks in e-discovery and don't try to capture the entire field. With no pyrrhic victory in sight, these vendors offer a best-of-breed approach and the fact that they may only do one thing, so they do it right. Example: Wave Software.

Wave's Trident Pro processes e-mail files, such as PST and NSF, and electronic files and removes duplicates, thus reducing the data set for review and the overall e-discovery costs.

Trident Pro automatically creates load-ready files for export into applications such as Concordance, Summation, Catalyst or other platforms for attorney review. Once the e-mails pertaining to the discovery request have been isolated, they can be delivered to opposing counsel in their native file format, a provision that should comply with most discovery requests.

LegalTech: 'act local, act global'

Globalization has turned the old adage "act local, think global" into a new one: "act local, act global." The new adage was apparent at LegalTech where vendors recognized the importance of supporting multiple languages in litigation. For example, Kroll Ontrack, a provider of paper and electronic discovery, computer forensics, and litigation readiness and response services, announced that their e-discovery software has multilingual support for cross-border litigation and investigations for lawyers representing clients in the Asia Pacific region.

E-discovery in the U.S. is local, but it can be global as well. Because documents in any country and in any language can be the subject of U.S. litigation. For example, a product designed in Singapore is manufactured in China, assembled in Korea, and distributed in the U.S. where it becomes the subject of litigation, viz., product liability. In which case, the product's design, manufacture, and assembly may be relevant topics for e-discovery. If that's the case, you may have multiple, foreign custodians and documents in multiple languages not all of them Unicode compliant. What to do?

At the least, you will want a capture and review program that supports the languages of litigation. You can focus on Unicode, but the standard has not been practiced long. Most likely, you will have documents using code pages from Microsoft Windows or IBM for Chinese and Korean character sets. So you will need something that is not only Unicode-compliant, but also backwards compatible with older code pages that will allow you to capture and review relevant data sets in e-discovery.

Kroll Ontrack software, including their processing and review tool Inview, appears ready for the above global e-discover sceneario with:

• The ability to process Unicode documents in a variety of languages.
• Full multilingual search support in Inview, including proximity and Boolean searching of Western European and East Asian data, to help legal teams pinpoint documents that are important to the case and exclude privileged material.
• Documents, regardless of source language, can be centralized, supported and reviewed in Inview.
• Output features that produce multilingual documents in a variety of formats, including full OCR support for redacted documents in their original language.

The next step for vendors in the "act local, act global" framework will be to support multiple languages in litigation preparedness tactics such as creating and maintaining policies on documents in multiple languages and providing multilingual litigation hold services. 

Be a SaaSy solo with Clio

When I started out as a solo practitioner, I reviewed practice management software like Amicus Attorney and ProLaw for their value in managing my budding law practice. But after reviewing the cost, in addition to my other startup fees, I passed them by.

As a computer and network geek, I had no trouble coming up with a consistent file system for client matters and installing an intranet and extranet for the home office. As for document creation and management, it was easy to create Microsoft Word templates and macros and, from my editorial experience, manual version control was a forethought, not an afterthought. But then came time and billing: a continuing experiment, even battle, with MS-Excel spreadsheets and MS-Access databases.

At LegalTech West, I hunted down Clio per Robert Ambrogi's sound advice. It is has a lot of promise to provide solos and small firms with time tracking, billing and reporting, client and contact management along with task scheduling, document management, practice performance metrics, and even a facility to manage client trust accounts -- all bundled in software as a service and available via the Internet and a Web browser from a Microsoft Windows or Mac OS. After my discussion with Clio, I found that its price point will be low enough that solos and small firms won't even think twice before tyring it out. But you will still need a facility to create documents locally such as Microsoft Office, Open Office or Star Office. In the alternative, if you want to dabble in more software as a service, there is also Google Docs.

Although Clio is in beta now, when it goes live it may be time to put away the spreadsheets and the haphazard databases for cost-effective, practice management software as a service: Clio. 

E-Discovery luck: where preparation meets opportunity

I had the opportunity to listen to the Honorable Elizabeth D. Laporte, magistrate judge from the U.S. District Court, Northern District of California. She had a lot to say about how counsel and their clients need to understand and learn about their electronically stored information prior to attending "meet and confers" and other pretrial discovery conferences.

The lessons to take away are not to treat the early meetings as "drive-by conferences" and prepare for them: do your homework. And when you know the extent of your ESI, be prepared to discuss it openly and with candour to your opponent and to the court. You also need to go beyond the extent of ESI and know how it was created and how it is maintained -- all in a way that can inform the parties and the court of its nature and accessiblity, or inaccessiblity. And most of all, remember that the "cover-up is worse than the crime."

The things to take away from Laporte's message: know what you don't know about your ESI prior to meeting with your opponent; discuss ESI in an open dialogue with your opponent; and, at all times, maintain your candour with opposing counsel and the court. In short, be a lawyer! When you meet regarding discovery obligations, best of luck to you; luck is found where "preparation meets opportunity." And always remember why you are there -- you are an advocate for your client and his or her data.

UPDATES AT LEGALTECH

I have been following Compulaw, a publisher of calendar and docket matter management software with built-in rules to calculate court dates and deadlines -- a software tool that beats counting the days, back and forth, on your own calendar. Now, in their Vision Web Portal version 3.3, Compulaw has a handy feature that answers the question: How did you get that date? And the answer is in an easy to view, graphical format.

Compulaw also has a Web part that integrates with Microsoft SharePoint 2007: Compulaw Collaborate. With more and more law firms implementing SharePoint, the Web part shares Compulaw data across the law firm that has installed both Vision and the Web portal.

One more new item with Compulaw's deadlines calculations for both Vision and Deadlines on Demand. The products are now endorsed by Egloff Insruance Agency, that services more than 30 Calif.-based malpractice insurance carriers. Why? Calendaring and date calculation are leading causes of malpractice claims. Compulaw's products aim to reduce errors in calendaring that hope to reduce the lawyers' liability and, ultimately, limit policy claims and the carrier's exposure to liability.

Good things in small packages

Although LegalTech West Coast is a smaller show than LegalTech New York, there are some advantages to it. LegalTech West Coast is a great opportunity to get to know the people behind the products as well as the products themselves.

The keynote address presented by Charles A. James, VP and GC of Chevron, was a good starter on what law firms and lawyers need to maintain a profitable business: knowledge management. James indicated that Chevron has yet to see a product that would help them leverage corporate knowledge. In addition, he indicated that existing products don't address the social barriers to KM input. That is, inside knowledge helps one succeed in the workplace. Sharing that knowledge with others will dull your competitive edge and perhaps mitigate your opportunities for advancement. To follow on James' theme, I will get a run down of the KM options available at LegalTech and pass them on.

In the legal technology world, electronically stored information is well known; not so well known are the techniques to get that evidence submitted in court for the judge or jury to weigh. CT Summation put on an excellent event on "How Law and Technology Determine the Admissibility of Evidence." The presenter went through some basic evidence rules that most first- and second-year law students should know in regard to relevance and admissiblity. But my ears perked up when she discussed the Federal Rules of Evidence and the amendments to the Federal Rules of Civil Procedure.

Now, we all know that there have been amendments to the FRCP regarding ESI. However, the Federal Rules of Evidence have not been updated in the same manner. In fact, there remains ancient common law rules operating on ESI, including the rules around chain of custody and the Best Evidence Rule. Despite the old rules, the law admitting ESI in evidence is growing, case by case.

For example, a proper chain of custody for ESI monitors data and includes an audit trail on anyone or anything that impacts the data from the event the caused it to be part of litigation to the court room. Whether or not the evidence is admissible comes down to whether the evidence is relevant to an issue at trial; and then conditional relevance. Conditional relevance goes to the weight that the jury places on the evidence. The bottom line in chain of custody issues: you can make or break your case on the trustworthiness of the custodian. Choose your experts carefully.

In regard to the FRCP, I was reminded today that there is a Rules Enabling Act that limits the scope of the FRCP. In effect, that scope includes activities and events that occur after the complaint is filed, not before. Consider that for a moment and consider that judges will apply sanctions for some activities in discovery that predate the actual litigation. But, according to the Enabling Act, where do judges get that power? There is an article devoted to this topic in the forthcoming issue of the University of Baltimore Law Review (37). Stay tuned.

Legal Tech in L.A.: it's about the data

I am about to close the door to my office and head to another Legal Tech West Coast in Los Angeles. I realize these conferences are all about meeting people, collaborating and connecting. But it's really about the data: what tools are out there that are going to give us a head start in managing data for clients and help manage the risk of litigation.

My door is not closed yet, and I'm already getting an inkling of what I will see in L.A. RenewData took the wraps off ActiveVault 4.0 today -- a managed service that will allow clients to consolidate, archive and manage all their inactive data, including old backup tapes, into one basket to apply data retension rules and attach legal hold requests. That's one big pool for data that has the potential to be a "safe harbor," depending on the substance and implementation of an organization's retention policies.

RenewData aims to make it easy for ActiveVault customers to view and manipulate their data and metadata with self-service tools that will allow early case assessment, search and review tools all within a Web browser. But don't think RenewData will be the only game to make it easy to manage your data.

CommVault announced today that their Simpana 7.0 software suite will now allow organizations to apply legal holds in anticipation of litigation -- no managed service necessary. Most organizations anticipate litigation at some time. So, tools like these, bundled inside one architecture designed to put all your data under one platform, makes it easy. Just make sure that the one platform is going to fit all your requirements for resource management, data protection, archiving, and search and scale to your future needs.

See you at Legal Tech.

Autonomy to host data in e-discovery

With the increasing amounts of data to process in e-discovery, and their escalating costs, corporations and law firms have to look for more manageable and cost-effective ways to manage the process. So in any large litigation with discovery requests, outsourcing is going to be a topic under consideration. Now, you can add Autonomy to the list of items to consider in outsourcing data acquisition and review in e-discovery.

Autonomy recently announced a hosted e-discovery solution. They appear well-suited to the task with approximately 6,000 servers across five data centers and an intellectual property portfolio that consists of an early case assessment process and automatic categorization of data to prioritize it for review. Autonomy’s assets are also Unicode compliant that gives them language independence in processing data for international litigation and arbitration. In addition, Autonomy has audio support if discovery requests include voice records like in financial services and subprime litigation cases. So, as an afterthought to this note, and a forethought to litigation, make sure your records retention policy includes voice records.

Get traction in your redaction process

Sensitive metatdata in a sex discrimination case against General Electric was recovered from redacted digital documents downloaded from the federal court filing system, PACER. This breach underscores the need for software and know-how to ensure sealed data stays concealed.

Lawyers for GE then ensured that redacted information remained inaccessible by printing the documents from PACER, complete with the black bars covering text, and then re-scanning them back into the system. A low-tech way to deal with an issue that's full of technological landmines.

The low-tech way works. But if you have ongoing redaction needs, you will need to look into a more automated way to handle the procedure. Towards that end, Informative Graphics Corporation (IGC), a manufacturer of viewing, collaboration and redaction technology, recently announced the release of its next-generation Redact-It Enterprise Server software.

Redact-It Enterprise bulk processes document and image files on-demand as part of a workflow process.  No metadata or redacted data are transferred to the rendition -- and the process prevents the alteration of the source file. Once information is redacted, the software creates new PDF, TIFF or secure Content Sealed Format (CSF) files for use.

IGC has designed an intuitive interface for Redact-It Enterprise and the system integrates with content management systems like EMC’s Documentum, Interwoven WorkSite, Kofax Ascent Capture, Microsoft SharePoint, and Open Text Livelink ECM. For a demo, see the Redact-it Web site.

FTI Consulting to Acquire Attenex

We continue to see examples of how the e-discovery market is changing with new entrants and the merger of existing players. Today, FTI Consulting announced their acquisition of Attenex for USD 88 million, to close in the third quarter of this year. Together, FTI and Attenex will combine a modular intellectual property portfolio that aims to scale up to servicing large-scale e-discovery needs in litigation and investigations.

FTI Consulting hopes to bring Ringtail Legal, Quick Cull, and Analytics together with Attenex's Patterns to bring a unified, end-to-end e-discovery platform to existing Am Law 100 and corporate customers and attract new customers with the combined intellectual property portfolio.

With over 4 years of experience working together to date, FTI Consulting and Attenex should quickly come up to speed with a unified R&D approach for customers. In the short term, cross-licensing their modular software approaches will be appealing to both corporate and law firm customers looking for best-of-breed software for discreet e-discovery tasks. All told, FTI Consulting will be able to offer customers both the Attenex and Ringtail e-discovery platforms as well as modules like Attenex Patterns Workbench, Ringtail A2R Connector, Ringtail QuickCull and Tiff-on-the-Fly.

Readers should also note that FTI Consulting is also launching a strategic partnership with Endeca Technologies. After all, if you can't find it, you don't know what you have until your opponent shows you.

eDelaware Fits on a BlackBerry

Yahoo shareholders are suing the Internet search company hoping to prove that it deliberately sabotaged a proposed deal with Microsoft Corp. One would think the suit would lie in New York or San Jose or another technology center. But the complaint the investors filed against Yahoo's board of directors sits in Delaware Court of Chancery. Why?

Delaware law makes the state an appealing place to incorporate business. As a result, many attorneys across the country, and the world, need access to Delaware law. And wouldn't it be nice if they could read it on their BlackBerry device? And wouldn't it be nicer if the service was free? Well, nice things still come in small packages.

EDelaware is a free resource created, designed and distributed by Potter Anderson Corroon LLP, the oldest Delaware law firm and the 8th oldest continuing law firm in the U.S. In addition to its practice areas including corporate law, alternative entities, intellectual property, mergers and acquisitions, civil litigation and bankruptcy and creditors’ rights, Potter Anderson is now a software developer and distributor and content provider. It may be the first law firm to offer free legal content delivered and formatted for a mobile device like the BlackBerry.

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