Friday, July 8, 2011

e-Discovery Search Term Negotiation: The Impact on Time, Money and the Infliction of Emotional Distress

Search term negotiation, the reaching of an agreement with an opposing party about which words and phrases to use when responding to electronic discovery requests, is more relevant than ever. At the heart of the negotiation is a pursuit of the documented facts surrounding litigation, government or regulatory inquiry. Recent high-profile cases have brought the importance of search term negotiation to the public eye. This pursuit of facts and truth should always be of paramount importance within the justice system. However, behind the exercises of collecting relevant data, a different set of dynamics can center around cost, fairness, reasonableness, relevance, technology and time.

Case law and technology continue to evolve in this area, with case law seeming always a step behind the evolution of search engine technology, data and document retention policy. What frequently gets lost or forgotten in this evolution is the increasing burden placed on respondents. Even so, respondents themselves sometimes appear oblivious to the importance of the up-front exercise of agreeing on the terms that drive the search. Legal requirements will frequently dictate some of the search, but more frequently an agreement by both parties on the terms and methods applied to the search for relevant data will contribute more to the time and associated costs.

In-house counsel may not focus on the discovery request and pass these directly to litigation management or IT professionals to respond with little understanding of the broad and deep implications involved. Search tools and algorithms today are much more sophisticated than their Boolean predecessors. Gone are the days when we should allow a search term such as "Pro*" in order to find occurrences of the word Product. Tools now allow professionals to simply input the word "Product" and to then configure the tool to find variations of the word...Produce, Producer, and Production (now called "stemming"). This is only one example of the disconnect and the need for an appreciation of search term negotiations. At the heart of these negotiations there should not be muddying by respondents, nor leverage and pressure from the search terms, requester; the aim should be relevance with due consideration of the time, cost and distress to produce what is requested.

There is a precarious balance to be struck between reasonable search terms and ensuring adequate collection of pertinent data. The legal landscape in this area is not yet clearly mapped and the topography continues to shift. This makes the up-front exercise of negotiating the search terms to be used more important than ever. In today's pressing economic climate, the impacts are felt on time, money and the aggravation and distraction while the focus should remain on the just outcomes.

Thursday, April 14, 2011

Why aren't More Govt. Agencies Using Legal Spend Management Tools?

A US Treasurey watchdog report, set for issue today, points to inadequate or vague descriptions of time by law firms representing the government's Troubled Asset Relief Program. The report notes that The Treasury Department's Office of Financial Stability (OFS) failed to question the fees and paid the invoices which totalled some $27M paid to five law firms as of December 31st, 2010. "[]OFS paid without questioning, fee bills that contained block billing, vague and inadequate descriptions of work, and administrative charges not allowed under the contract,” the audit report says. “As a result, in many instances OFS could not have adequately assessed the reasonableness of the fees.”

This blogger has to ask why government agencies aren't keeping up with their private sector peers who have been adopting Legal Spend Management applications since the late 1990s. These applications have an incredibly high ROI and are able to automatically check each and every invoice for exactly the kinds of violations that the Treasury watchdog noted in its 35-page report. These systems are far less expensive than the $677,000 in questionable charges in the $1M worth of invoices that the auditors screened; a 94% "potential" violation rate. Who knows what the auditors would have found in the remaining $26M in billed and paid invoices.

As a taxpayers, perhaps we should be asking the Treasury department directly. As a vendor selling, implementing and supporting the most advanced legal spend management technology available, doeASCENT, I think our sales team may have to spend more time inside the beltway.

Tuesday, April 5, 2011

Is doeLEGAL a Game Changer?

See the article in American Legal Technology Insider.

If serving the world's largest corporate legal departments with the most innovative use of next generation collaboarative technology for legal spend management is the benchmark, then the answer is yes.

If the implication is that doeLEGAL's business model allows flexibility in how it serves its clients, then the answer is yes.

If uncompromising support is required, the answer is yes.

The game is changing and doeASCENT is leading gthe way.

Tuesday, March 29, 2011

Global Litigation Rates: The US is Not the Leader

For years we have heard in the news, in the press, in articles, blogs, etc., that the US is "the most litigious society in the world". I have always understood that comment to mean that we Americans sue one another far more than any other country. I've taken that statement in stride, knowing that it is not so (having done the research), but it seems time to provide a few facts to perhaps dispel the myth, or at the very least further the discussion as it bears heavily on the topic of legal technology, how it gets used, what are the most useful solutions and frankly the cost of those solutions.

Two sources seem to have gone unnoticed. First, in his book “Exploring Global Landscapes of Litigation”, (Baden-Banen: Nomos, 1998), Christian Wollschlager notes that the litigation rates per 1,000 people shows that the US is well down the list of the world's most litigious countries. Without having read the book I refer second to the fact that in his draft testimony before the House Committee on the Judiciary of June, 20, 2004, Theodore Eisenberg, Henry Allen Mark Professor of Law at Cornell University includes Wollschlager's data and relies heavily on it. In that study, Wollschlager found the following:

Country Cases per 1,000 Population

• Germany 123.2
• Sweden 111.2
• Israel 96.8
• Austria 95.9
• U.S.A. 74.5
• UK/England & Wales 64.4
• Denmark 62.5
• Hungary 52.4
• Portugal 40.7
• France 40.3

Source. Christian Wollschlager, Exploring Global Landscapes of
Litigation Rates, in Soziologie des Rechts: Festschrift fur Erhard
Blankenburg zum 60. Geburtstag 587-88 (Jurgen Brand and Dieter
Strempel eds., 1998).

Granted, the study is a bit dated as is the prepared testimony, but can things really have changed so much? Eisenberg's draft testimony alone is worth a read and I'm going to try to find a copy of Wollschlager's book. Of course, litigation rates alone don't define the issues surrounding the impact of litigation on society; jury awards, insurance payouts and rates, etc. contribute greatly. But as a legal technologist I'm more interested in the questions this poses for the legal marketplace in its use of legal technology.

I'm going to think about this issue a bit more and look for others to weigh in. I think the issue bears on the use of legal spend management systems, matter management systems, ebilling systems, litigation management systems, and the like. There are issues and questions such as why these technologies are not more prevalent in these more litigious societies, or why they are not more widely used outside of the US? Questions also arise as to whether the systems which are out there are overpriced and therefore not more widely used, antiquated or too "US-focused", or whether users, lawyers, paraprofessionals and administrators, don't use these systems for discernable reasons.