Here is a great article that examines the ways in which engineering and law students in Ireland go about finding information.

The conclusions and suggestions are both intuitive (from a practitioner’s point of view) and startling, because it is clear that lawyers have, by and large, missed the boat in a mandatory skill:

Law students, like legal practitioners, work in an information-rich environment which is in constant flux, with ongoing additions to statutes and other sources for legal research. As a result, those involved in the study and practice of law need to stay current with published legal literature relating to their area of study, or area of practice. This can encompass court rulings and judgements, legislation and regulations, as well as secondary material including research. Essential information skills required of legal practitioners include the ability to locate primary and secondary material, the ability to evaluate the relevance, applicability and value of that material to the task at hand, the ability to manage that material, and the ability to use the information for a specific purpose (Carroll et al. 2001). Consequently, these are likely to be information skills that are required of law graduates on completion of their formal education.

In other words, lawyers need to re-learn how to find information and law schools need to teach students how to find information, n ot just use outdated reference tools.

Source: Information Research Journal

The primary method of learning project management has been to attend PMI (Project Management Institute) courses with the objective of obtaining the PMP certification. Agile doesn’t require any of that,–but the focus is on the fluency of the team NOT the qualifications of a manager far-removed from the actual work of the team and the value it provides.

Through the PMI-Agile Cummunity of Practice, PMI has explicitly recognized the value of educating its membership about Agile, and here’s a video from one of the leaders of the movement to bridge understanding between PMI and Agile principles and practices.

By the way, an interesting early point is that many software projects are on a two-year plan,.–which sounds an awful lot like most litigation.

Here’s the video ]]> http://www.betterdiscovery.com/blog/2010/01/agile-project-management-video/feed/ 0 http://www.betterdiscovery.com/blog/2009/12/ediscovery-sampling-alternatives/ http://www.betterdiscovery.com/blog/2009/12/ediscovery-sampling-alternatives/#comments Sat, 19 Dec 2009 18:02:21 +0000 admin http://www.betterdiscovery.com/blog/?p=113 This post is seemingly off-topic, but I think lawyers need to think long and hard aboutthe currently insistence on “sampling.”

So, read this article and you’ll se what I mean when I say that one aspect to becoming an Agile lawyer, is to embrace “legal polyglots.”

It’s about effective team-building to task.

It’s hard to criticize the EDRM, because so many people are invested in it, –but that’s a natural byproduct of the work my company is doing to bring Agile perspectives to the practice of law.

EDRM describes, at a task level, what needs to be done. I really think that’s all it was originally intended to do! The problem is when you work from task up, teams give suboptimal results. Not really a dirty, little secret given publication of the Facciola-Redgrave Framework.

I debuted the use of Scrum for management of document review teams at the Munich ScrumGathering a month ago, and as soon as I showed an image of the V2 EDRM, someone called out “Waterfall!”

Just like the PMI has recognized the high value of Agile, we think that firms will recognize that even within the EDRM, an Agile approach will help reduce confusion and increase business value.

In other words, from a flow perspective, most software folks (who have a huge lead in terms of team work dynamics) recognize that a series of handoffs and extremely complex lines of responsibility are an inadequate response to the needs of data-centric eDiscovery.

What I’m trying to address in the “Litigation Ecosystem Framework (LEF),” then, is a way forward. Implementation with change as a given without sacrificing quality is where Agile has a lot to offer.

Is Agile easy? No, it’s actually going to require that lawyers bring their A game. But, the rewards to clients of transparency, concepts of “done” and prioritized work flow will definitely win out in the end.

No, what we’re doing in terms of Agile is not as well developed, but I think that it will compete very nicely as a model for HOW to get work done, –particularly now that we also have the Facciola-Redgrave Framework which requires that lawyers figure out FAST how to get through the complexity.

Agile is based on complexity science, and maybe, rather than saying that the EDRM is better as a theoretical model, we can say that in looking at the EDRM, Agile teams can work through it better.

The ScrumGathering is an international conference of experts and proponents of Scrum and I’m counting on a wide network of experts to help me bring this thing to lawyers, firms and their clients. It’s not about bashing the EDRM, so much as helping lawyers do what we do BETTER.

Many lawyers are looking for ways to improve how litigation teams function, and this is where I think the “Agile for Lawyers” project is really going to shine. Eventually, we *will* focus on collaboration with both the EDRM and Sedona folks. I warmly encourage anyone interested to follow one or more of these Twitter streams: @ALASSN @AgileLawyer @AgileAgreements.

This caused someone to attempt to hack into my server (no apparent success, thank goodness), which caused my host to reset pretty much everything.

Seems to be alright, now.

The training program is designed for experienced special masters,
mediators, arbitrators, and other legal and commercial dispute
resolution professionals (and those desiring to be such) who are
involved in – or anticipate involvement in – disputes in which the
preservation, collection, review, management, or evaluation of
electronically stored information will likely be an important issue or
issues.

Thankfully, Blank has written about this very important point!

This is an amusing fiction. The truth, however, is that for nearly all clients, most of the potential savings were squandered long before the case started. If e-discovery savings and efficiency are the goals, ECA comes much too late.

Absolutely, ECA should be dealt with as reality far in advance of litigation.

The good news is, most litigation counsel can help out, even if they know little about electronic records. It just takes getting counsel involved with the client’s IT purchasing decisions. So, spread the message: Early is too late!

Not sure I agree with his conclusion, UNLESS the company and the law firm are involved in an Agile, collaborative relationship, because the last thing clients want is an uninformed lawyer poking his or her nose into company purchasing and data management decisions.

The tech team doesn’t even like MANAGEMENT telling them how to work, let alone a lawyer, billing out at…whatever lawyers are billing out at these days, walking in and messing about with established practices.

Far better, given the way most companies work, for lawyers to get up to speed before attempting to assess IT concerns by playing “chicken” with the company.

Here’s where you can learn about the term “chicken.” Far better to be a chicken, than a seagull.

Since “seagull” isn’t a well-known term, let’s look at the definition:

A Seagull can be identified by these characteristics:

1. Comes into the project mid-sprint with no prior contributions
2. Makes a lot of noise
3. Craps on everyone & everything
4. Leaves just as abruptly as he or she appeared

This can be a team morale killer, especially if it is a C-Level player. Also it will definitely have an adverse effect on your current velocity!

In other words, the seagull is the LEAST welcome team “addition” possible. I don’t think this concept is limited to tech teams. how to get around this, is to move “closer to the ground.” This is not a question of client’s, but of how much the lawyeris willing to do to get things right.

By playing “chicken,” in the Scrum world, a lawyer can learn about her client and participate in “Scrum” style meetings in a lightweight fashion. Lawyers who don’t know anything have no business advising a client, but the good news is that the remedy for that is simple: learn something!

This is a different approach from an uninformed lawyer marching into a client with a few judicial opinions under his belt and dictating IT policy. This means that when it comes time to ramp up for litigation, the client is confident that the firm understands what is already there.

Litigation is no time to start changing IT policy or second-guessing the motivation for whatever policy and practices exist. The time for lawyers to have an impact is early and often. But, in a lightweight, agile fashion that respects the wisdom of the client.

So, if I can interpret a little bit what I think C. Spizzirri is getting at here:

Certainly, there are clawback provisions in this order, but the production of documents without review is what makes this a quick peek. The two are often presented as alternative means of protecting privilege waiver in eDiscovery, but it seems that clawback protects privilege while quick peek shifts costs. So quick peek is really clawback plus cost-shifting?

It’s not clear what In Re: Waddell & Reed Financial, Inc., No. 4602-CC (Del. Ch., June 12, 2009), has to do with this issue, but ACS State Healthcare, LLC v. Wipro, Inc. and Wipro, Ltd., No. 4385-VCP ( Del. Ch., July 23, 2009) talks about the quick peek stipulation:

The Stipulation permits the parties to the action to produce documents, without first engaging in a page-by-page review and without risk that such production would constitute a waiver of attorney client privilege.

I’m not sure that there OUGHT to be a distinction. The question is of risk is an area where transparency is important and deserving of more than cursory acknowledgment. The focus should be, first, on protecting the client’s interests, and THEN protecting counsel.

The protections in the FRCP are largely to protect counsel [e.g. from malpractice claims], not the client, so counsel should always pursue clawback protection, –whether or not production is pursuant to a “quick peek” arrangement. Further, I would argue that even quick peeks should be subject to negotiation as to prior searches, that can be used to unilaterally pull documents that bear a “high probability of retention.”

This class of documents includes any document which bears universally understood indicia of irrelevance or privilege such that the risk to the client of production is unbearable. Which means that consultation with the client is imperative, prior to accepting any level of broad production regime. Stuff like travel schedules and Amazon receipts need to go through, as I argue, so that he opposing party has the ability to decide upon relevance.

This can take place at the meeting between the parties to negotiate search terms, with a difference: the searches run are not those for production in general, but those, specifically, that address open and obvious “non-producability.” Maybe all counsel does is pre-tag them, but something more needs to happen than a mere data dump.
And, therefore, discovery should NEVER be produced without at least a baseline series of queries. The difference is that the cost of a comprehensive review is not needed to protect the client’s interests, because the risk of loss (producing critical documents that ought to have been held back) can be somewhat mitigated.

Clawbacks aren’t there to protect stupid-but-inadvertent disclosures [i.e. all emails from counsel marked "Contents are for C-Level eyes only from counsel subject to attorney-client privilege" really ought to be pulled, clawback or no].

Similarly, quick peeks should not reward the diligent at the expense of the lazy: design the quick peeks to protect the client’s interests,–don’t just turn stuff over.

Does anyone reallyt just dump files in total reliance of clawbacks and quick peek protections? I hope not!

The Court ordered the parties to complete the following discovery by October 1, 2009:

1) Defendant’s production of de-duplicated data. The Court required the Defendants to “provide their computer expert and technician used for the de-duplication process to explain and describe this process, including the technique and criteria used by the process, to Plaintiff’s expert.” White, 1-2.

2) A meet and confer between experts on a search protocol for PST’s to find three email messages. White, 2.

3) A search to be performed with the both experts present on the PST data. White, 2.

4) Defendants were to perform an immediate privilege review. White, 2.

5) Non-privileged search results were to be produced to Plaintiff counsel immediately. White, 2.

6) Defense production of the litigation hold notice issued at the beginning of the case. White, 2-3.

This order says more about the inability of counsel to cope than anything else.

In litigation, the higher the stakes, it seems to me, the LESS willing one ought to be to allow an opponent to set the terms of de-duplication.

Handing over the data is always a tricky proposition, but allowing the opponent to do the -duplication means that one has to accept the consequences that:

1) the opponent has all the incentive in the world to sub-optimize queries [and then run different queries internally]

2) quality control on work done by someone else is not possible, if all you see is the outcome.

Allowing the opponent to de-dupe is a strategic error and one that should be explained to the client early on and a decision made as to the value of doing each level of data massage internally.

When you go to a massage therapist, do you tell her not to touch the left side, because she’s already done the identical right side?

I propose an alternative: each party does it’s own de-duping and then create a list of files they believe to be identical. Mark them as such and move on. Failure to mark means inability to complain.

De-duping is not the sort of discovery dispute that should have required command and control from the judge.

With respect to the Order directing the parties to devise a search protocol for 3 email messages,–what is the point of that? All it will do is confirm that, yes, we can consistently find 3 email messages.

This case seems to prove that court orders in e-discovery are just like what happens when two siblings can’t agree on who gets the piece of cake. They take it to Dad, who is tired of the noise, and settles it by eating the cake himself.

Is this good lawyering?

The Posse List Certification

The Posse List keeps growing and growing!

All programs will be free to participants.

We launch this program with the Catalyst CR Certified Reviewers program (CRCR), the certification program for Catalayst CR (for information on the software click here) which is gaining significant market share and being requested by many corporations and law firms due to its many options and easy programmability, and its multi-language capabilities.

The live certification program will be held in Washington, DC on October 7th and it will be hosted by ClutchLegal. Participants in the CRCR will be trained on review using the CR Assigned Review Module and take an examination, testing them on their knowledge of review using Catalyst CR. Those who pass the exam receive the status of Catalyst CR Certified Reviewer.

Organization of Legal Professionals

There’s a bigger story here, not sure what it is from the website (weird URL), but here’s the basics:

The Organization of Legal Professionals is a non-profit association dedicated to setting standards and certifications through collaboration, education and certifications.

Membership is open to anyone who is interested in furthering the profession. The OLP is comprised of some of the top legal authorities, spokespersons and educators in the legal field. The first mission of the organization is to establish generally accepted standards and certification in e-discovery. Additionally, OLP seeks to provide a collaborative forum to disseminate information, educational opportunities and opportunities in the legal field.

Here’s the deep bench they’re working from:

The OLP is honored and pleased to announce the 2009 Board of Governors:
(For more information about our Board, please see Biographies.)

Arnold Blair
Sr. Staff Attorney, WilmerHale, New York, NY

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

Kunoor Chopra, Esq.
President & CEO, LawScribe, Los Angeles, CA

Peter Del Valle
Complex Case Manager, Seyfarth Shaw LLP, Los Angeles, CA

Jeff Fowler
Partner, O’Melveny & Myers LLP, Los Angeles, CA

Ron Friedmann
Sr. Vice President, Integreon, Arlington, VA

Professor Jay Grenig
University of Marquette School of Law, Milwaukee, WI

Nick Hariton, Esq.
Managing Director & Counsel, Imaging Presentation Partners, Los Angeles, CA

Anne Kershaw
A.Kershaw P.C. Attorneys & Consultants, Tarrytown, NY

Linda A. Klein
Managing Shareholder, Georgia Offices, Baker Donelson, Berman, Caldwell & Berkowitz, P.C., Atlanta, GA
Past President, State Bar of Georgia

Shannon Capone Kirk E-Discovery Counsel, Ropes & Gray. Boston, MA

Browning Marean
Partner, DLA Piper, San Diego, CA

Toni Marsh, Esq.
Director of Paralegal Studies, George Washington University, Washington, D.C.

Douglass Mitchell
Counsel, Boies Schiller & Flexner LLP, Las Vegas, NV

Nigel Murray
Managing Director, TRILANTIC, London, England

Tom O’Connor Legal Electronic Document Institute, New Orleans, LA

Patrick Oot
General Counsel, Verizon Communications, Richmond, VA

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

Joseph C. Scott, J.D.
General Manager, CompuLaw/Deadlines-on-Demand, Los Angeles, CA

Eddie Sheehy CEO, Nuix, Sydney, Australia

Charles Skamser
CEO, EDiscovery Solutions Group, Boise, Idaho

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

Christy K. Stouffer
Director of Practice Support Services, Patton Boggs LLP, Washington, DC

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

Karen Willenken
Counsel, Skadden Arps, New York, NY

The Advisory Council

Henry Alonso, Complex Case Director, Dept. of the Treasury, Washington, DC
Donald Billings, West Coast Manager Litigation Support Practice, Sidley & Austin, San Francisco, CA
Mary Buker, Principal, Litigation Technology & Consulting, Inc., Austin, TX Ted Brooks, President, Litigation-Tech LLC, San Francisco, CA
Kevin Chern, Esq., CEO, Total Attorneys Practice Management Association, Chicago, IL
John Finlay, Business Development Executive, XactData, New York, NY
Oliver Gierke, Litigation Case Manager, White & Case, NewYork, NY
Debra Hindin-King, Litigation Paralegal, Holland & Hart, Denver, CO
Conrad Jacoby, Esq., Attorney & Consultant, Efficient EDD, Washington, DC
Nancy Jensen, Sr. Litigation Analyst, Reed Smith LLP, San Francisco, CA
Anne Kemp, Principal, Litigation Support Management, Sacramento, CA
Julie LaBoe, Editor-in-Chief, LegalTechbase.com, Peterborough, NH
Danielle Marbury, Litigation Support Trainer, WilmerHale, New York, NY
Dr. Robert Mongue, Assistant Professor, University of Mississippi Legal Studies, Oxford, MI Julie Parker, Commodity Futures Trading Commission, Washington, DC/Parker Litigation Services, Flagler, FL
Jim Parrish, Principal, Studeo Legal, Ft. Worth, TX
Bonita Paul, Human Resources Director, MilbankTweed, Los Angeles, CA
Janet Powell, Case Manager, Olgetree Deakins, Miami, FL
Jason Primuth, Principal, Unfair Advantage, Menlo Park, CA
Kate J. Rorrer. Senior Manager, Practice Services, Cooley Godward Kronish LLP, San Francisco, CA Dana Schultz, Attorney at Law, Bay Area, CA
Dave Tiller, Principal, Studeo Legal, Phoenix, AZ

The Board of Directors and Co-Founding Members

Harriet Cohen, M.Ed., Executive Director
Judy Estrin, M.A., Chief Operating Officer
Tom Lenzo, M.Ed., Chief Learning Officer

Dialexica Programs Coming Too!

Stay tuned for the Dialexica Tech Awards and Agile Lawyer Training Programs!