Same Bat Time, Same Bat Channel (Different Bat Uniform Though)

Beginning December 1, 2009, I will have the pleasure of supporting the marketing efforts of one of the leading worldwide providers of electronic discovery services - Applied Discovery.



As a member of the Applied Discovery team, I look forward to the increased opportunity to cover, comment, and converse with those in the electronic discovery arena - and will continue daily news updates via Twitter from @complexd (now Unfiltered Discovery) and also from a new feed - @discoverapplied (Discover Applied) - beginning in December.

The news, views, and considerations via this blog will continue to be available at the "Same Bat Time and Same Bat Channel" although I might be in a different "Different Bat Uniform".

Are You The Turkey This Thanksgiving?

Are You the Turkey

The Organization of Legal Professionals | Toward a Generational Model of E-Discovery Classification

Graphics supporting the November 2009 Organization of Legal Professionals' Newsletter article Toward a Generational Model of E-Discovery Classification



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Herb Roitblat on ED Searches | docNative Paradigm Blog

Provided as an extract from an excellent post by industry pundit Tom O'Connor on his docNative Paradigm Blog, the following comment by Search Expert Herb Roitblat, Ph.D., is incredibly instructive for electronic discovery vendors as they seek to help make the process of search and the use of search more effective.

I think that the main thing that differs between tools is the ease with which you can accomplish your task. Practically any tool can be used to select documents for review. The review process itself is so sloppy that it trumps every other process. If you could think of all of the right words to search for you could accomplish everything with keyword searching. The problem, as you know, is that it is practically impossible to think of all the right stuff, so you need analytic tools to help. The systems differ in how much help they provide and in the amount of effort it takes to get that help (think H5 and the long process they force you through).

For the complete article, click here.

“Right Sourcing” Electronic Discovery

What is the “Right Sourcing” of eDiscovery?

As electronic discovery requirements continue to increase in light of the ever-expanding universe of digital data, many firms are questioning more than ever the way in which they conduct electronic discovery.   In a market that has over 600 vendors and is growing at over 25% per year , there are many options available to those sourcing electronic discovery tasks.  With this sourcing in mind, organizations are having to make important strategic decisions on whether they outsource or insource specific technology and expertise.  

As the ultimate goal for organizations appears to be centered around how they can leverage internal and external resources to efficiently enhance, and transform their electronic discovery efforts, the following definitions and thoughts are provided to help legal professionals consider the balancing of options and opportunities as they seek to “right source“ their electronic discovery requirements.

• Outsourcing: Outsourcing involves the transfer of the management and/or day-to-day execution of an entire business function to an external service provider  In the arena of electronic discovery, outsourcing can be considered as the support of electronic discovery tasks with the use of externally provided technologies and people. 
  
• Insourcing: Insourcing is often defined as the delegation of operations or jobs within a business to an internal (but 'stand-alone') entity that specializes in that operation.   In the area of electronic discovery, insourcing can be considered the support of electronic discovery tasks with the use of internally deployed technologies and people.
  
• Right Sourcing:  Simply stated, Right Sourcing is the balancing of internal and external resources in order to best accomplish a specific business function.  In the area of electronic discovery, right sourcing can be considered the support of electronic discovery tasks with the best balance of internally and/or externally provided technologies and people.

What is driving the need for Right Sourcing in eDiscovery? 

Balancing the business drivers of cost, time, and complexity in the conduct of electronic discovery continues to be one of the greatest challenges faced by legal professionals today. 

1)    Cost - The cost of electronic discovery has become such an important factor in litigation that, in some cases, it may actually drive counsel recommendations as much, if not more, than actual evidentiary positions.  Costs range from the specified monetary costs of sourcing the technology and people necessary to complete needed electronic discovery tasks to the implied opportunity costs associated with tasks and/or projects.  Costs to be considered for sourcing electronic discovery may include:

• Cost of Electronic Discovery Technology (To Include Upgrades and Maintenance of Technology)
• Cost of IT Staff to Support and Manage Electronic Discovery Technology
• Cost of Legal Professional Staff To Complete Electronic Discovery Tasks

2)    Time - The ability of legal professionals to manage the time components associated with electronic discovery is of paramount importance if counsel wants to both efficiently execute electronic discovery tasks and ensure that they are compliant with the requirements of audit, investigation, and/or litigation requests.  Time components to be considered for sourcing electronic discovery may include:

• Time Available to Respond To Audit, Investigation, and/or Litigation Requirements
• Time Required to Initiate and Complete Electronic Discovery Tasks
• Time Constraints based on Technology Availability and IT/Legal Professional Staff Availability

3)    Complexity - Litigation is inherently rife with risk, and the complexity of electronic discovery only increases this risk based on the intricacies of digital data, the continually growing volume of data available, and evolving ESI related law.  Complexity considerations to be considered for sourcing electronic discovery may include:

• Complexity of Risk Associated with Electronic Discovery Technology
• Complexity of Systems and Processes Required in Dealing with ESI
• Complexity of Expertise Needed to Execute and Manage both Electronic Discovery Technology and Tasks

Each of these drivers plays an important part in the consideration by counsel to outsource, insource, or right source their electronic discovery capabilities. 

In looking further at right sourcing, a logical next step beyond understanding the definition and drivers of right sourcing appears to be determining what eDiscovery tasks might be beneficially considered for right sourcing.

What eDiscovery Tasks should be considered for Right Sourcing?

Potential core eDiscovery Tasks that might be reasonably considered by counsel for right sourcing include:

• Collection Tasks that help acquire potentially relevant electronically stored information (ESI).
• Analytics Tasks that help identify and eliminate irrelevant document sets early in your efforts.
• Processing Tasks that help prepare relevant files for subsequent use while ensuring that the techniques used are defensible.
• Review Tasks that help define and examine data sets of documents for relevance, responsiveness, privilege, and/or confidentiality.
• Production Tasks that help deliver or make available to another party documents and/or ESI deemed responsive to a discovery request.
• Proactive Hosting Tasks (Pre-Discovery/Post-Matter) that help accelerate the electronic discovery process by providing a readily accessible repository that contains potentially relevant ESI.

While each of these core tasks is imperative for counsel to consider as they seek to be able to conduct complete eDiscovery, it appears reasonable to state that for most organizations the choosing of a single approach (i.e. fully insourcing or fully outsourcing) may not be the best approach for all services.  

What are the potential models for Right Sourcing?

In considering right sourcing eDiscovery, there appears to be three general models that warrant careful attention.  These models include: 

• Fully Insourced Model – A fully insourced model of eDiscovery is defined by the fact that all core electronic discovery technology and expertise is completely maintained within an organization (i.e. corporation, governmental entity).  Key characteristics of firms employing this model may include:
  
  +  Dedicated In-House eDiscovery Technology - Acquired, maintained, and supported Internally.
  +  Dedicated In-House IT and Legal Professional Staff – Resourced to support eDiscovery technology and conduct of all eDiscovery core tasks.

• Fully Outsourced Model - A fully outsourced model of eDiscovery is defined by the fact that all core electronic discovery technology and expertise is completely transferred to outside counsel and/or external service providers. Key characteristics of firms employing this model may include: 
  
  +  Leveraged Externally Provided eDiscovery Technology – Provides legal technology for outside counsel execution of core eDiscovery tasks.
  +  Leveraged Outside Counsel Staff – Conducts all eDiscovery efforts on behalf of in-house counsel and monitors external service provider efforts.

• Hybrid Sourcing Model – A hybrid sourcing model of eDiscovery is defined by the fact that a combination of insourced and outsourced technology and expertise is used by in-house counsel to accomplish all required electronic discovery tasks.  Key characteristics of firms employing this model may include:
  
  +  Flexible eDiscovery Technology – A combination of in-house and externally provided eDiscovery   resources designed to ensure the most time and cost efficient use of available resources.
  +  Flexible Staff In-House IT and Legal Professional Staff – Scalable (Depending on Cost, Time, and Complexity) to either fully support and/or fully manage all eDiscovery efforts.

 

Understanding that right sourcing is the balancing of internal and external resources in order to best accomplish a specific business function, aligning the specific model which best suits an organization with the model an organization chooses to implement will be a key contributor in an organization’s overall ability to successfully conduct electronic discovery tasks in support of audit, investigation, and litigation requirements.

Winds of Change? Electronic Discovery and the Am Law Tech Survey 2009

Provided below for use/consideration is a table view of information provided in the form of Am Law 2009 Tech Survey answers to the question “What electronic evidence data discovery vendors does the firm use?”

This table provides a view of the data different from the actual survey presentation as it adds the %Change to the information and orders the information based on change in reported usage between 2008 and 2009.

Details of the entire survey can be visited via Law.com.

New Times, New Requirements, New Principles.

Considering New Communications Principles In Marketing

Based on transformation and technology, current principles of marketing communications require considerable rethinking in light of the available “conduits” to communicate with others. With a relook at past marketing communications principles in mind – the following new marketing communications principles are provided for your consideration, review, and use.

These principles have been developed using the approach submitted by Christopher E. Van Avery in his writings on the need for America to revise and expand its principles of war to effectively plan and execute the more expansive and complex warfare of the future battlefield[i]. While communication in the business arena is certainly not war, the principles of war[ii] have always served as a solid framework for considering marketing communications efforts. These new marketing principles may be useful in helping provide a framework from which individuals and organizations can better ensure effective and efficient communications efforts.

12 New Principles of Marketing Communications

Marketing Communications require an achievable business objective to be effective. Whether it is reaching, informing, engaging, and/or encouraging[iii] individuals of interest, the achievable business objective is the starting point for understanding and applying the following principles of marketing communications.

1 Objective is focusing all efforts toward the decisive achievement of obtainable business results from the use of communications.

2 Speed is the rapid execution of all functions and operations related to communications.

3 Concentration of Effects is the focusing of traditional and advanced communications techniques to achieve business objectives.

4 Economy of Effects is employing the right number and combination of communications tools and techniques to achieve desired results.

5 Pervasive Awareness is building an in-depth knowledge of the market, the client, and the competition – to include their centers of gravity and challenges.

6 Continuous Planning is the ongoing development and redevelopment of courses of action, for the current situation and contingencies, to rapidly achieve business results.

7 Flexibility is rapidly adapting to new or different requirements or situations.

8 Sustainment is ensuring the persistence of communications tools and techniques to see the communication effort through, from initiation to completion of business results.

9 Efficiency of Command is ensuring there are no more layers of required approval than necessary for communication efforts.

10 Security is ensuring the safety and integrity of messages and responses during all phases of the communications effort.

11 Integration of Actors is allowing appropriate participation in planning, and assigning useful tasks to all individuals and organizations taking part in a communications effort.

12 Surprise is acting in an unpredictable fashion to leverage the utility of effects.

Transformation and Technology – Expansion and Complication

Transformation and technology continue to expand and complicate the marketing communications arena.

With this expansion and complication, it appears that the independence of individual communications principles is now a thing of the past.

In reality, like the actors and systems in today’s new world of communication, these marketing communications principles are absolutely interdependent each other.

This “interdependency of principles” can be a true benefit to marketing communications professionals today because when the principles are applied together they can provide quite a synergistic effect to the effectiveness and efficiency of the efforts of those who employ them.

New times, new requirements, new principles.

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[i] Van Avery, Chris, 12 New Principles of War, Armed Force Journal, The Defense News Media Group, http://kuex.us/317e (July 2007)

[ii] Principles of War, Wikipedia, http://en.wikipedia.org/wiki/Principles_of_War (October 30, 2009)

[iii] A Simple Continuum for Online, Print and Face to Face Communication

http://kuex.us/317c (October 30, 2009)