Blogging and Presenting at LegalTech West 2008

I was at the LegalTech West Convention in Los Angeles last week. There were several good presentations on e-discovery at this massive event, but the best by far was Craig Ball’s E-Discovery Jeopardy. This was part of the Game Show theme that he dreamed up for three e-discovery CLEs.

If you think that is surprising, you might also be taken aback by the sign on the front row seats of each event: “Reserved For Bloggers.” These seats were equipped with power strips to plug in blogger notebook computers. Looks like bloggers are finally getting some respect! Still, who wants to sit in the front row? The second and third rows were largely empty too because no one likes to sit up front. I’ll know blogging has truly arrived when we get the coveted back row seats. Then I’ll gladly plug in my MacAir and risk conspicuous over-the-shoulder snooping. In the meantime, for the most part, I prefer to remain just another suit in the crowd with a lap top. So too did most everyone else, as the fronts row seats with the “Bloggers Only” signs were usually empty.

The Many Legal IT Vendors at the Convention,
Most of Whom Were E-Discovery Focused

I spent a lot of time cruising the huge hall of vendors, and checking out several new companies I had not seen before. This included a couple of new companies with a focus on Asia, such as Ji2, Inc. It is a Japanese company, with offices in Tokyo and L.A., that specializes in services to Japanese multi-nationals. UBIC is another interesting Japanese company along the same lines as Ji2. They assist Asian companies with general computer forensics and e-discovery.

Attenex was there as a major event sponsor, even though they had just been purchased by FTI Consulting. They were the ultimate in low key sales, since they did not know what they had to sell, and neither did the people at the nearby FTI booth. They did not know whether the Attenex software would still be available for purchase, like FTI’s Ringtail, or whether FTI would switch to pure service offerings like the Applied and Kroll software.

Like everyone else, I collected a bag full of freebies from the many vendors. I liked the Attenex glow in the dark pens, and the Kroll golf balls, but my award for the best give-away goes to Exterro (whom I had never heard of before). They gave out a combination stress release squeeze ball and magic eight ball. Their corporate motto is “Empowering Legal Teams” and their software fits into the all important area of legal hold management. It is supposed to help you implement and track holds to try to “eliminate human errors in high-stakes litigation.”

This kind of human error is exactly what happened to Intel in the big antitrust case it is defending. Advanced Micro Devices, Inc., et al. v. Intel Corporation, et al., C. A. No. 05-441-JJF. A tech forgot to lookat page two of a spreadsheet and so did not suspend the auto-delete function on the email accounts of several key executives. The mistake was not discovered until two years into the case. I have written about this unfortunate mistake several times before, including the blog What Game Does an e-Discovery Team Play? No doubt the Intel error has been good for Exterro’s business and several other software companies like them, who now specialize in legal hold management.

I had dinner Thursday night with the good folks of Fios, primarily for the opportunity to get to know Mary Mack better. She is the Corporate Technology Counsel of Fios, and has her own blog that I read regularly, Sound Evidence. Fios gives out her newly updated book, A Process of Illumination: the practical guide to electronic discovery. She was the gracious host at Roys, a landmark Hawaiian restaurant in the historic section of downtown Los Angeles.

The event featured group discussions with many e-discovery luminaries and students alike, including, coincidentally, one of the senior partners in the firm representing Intel in the AMD antitrust case. He did not speak of that case, of course, but had many excellent insights. It is amazing how much agreement there is among experts in the field on all of the major e-discovery issues. This was a private event, so I will not get into the names and discussions, except to say they were lively and frank. If you get an invitation to a Fios dinner, be sure to take it.

Presenting on Search and Cost Control

I was also occupied at Legal Tech by my participation in two CLEs: one on e-discovery search, and another on cost control. They were LexisNexis sponsored panels and followed the game-show format set up by the master of ceremonies, Craig Ball.

For the search panel I followed Craig’s suggestion and created a Match Game theme Keynote presentation. The panel was led by Patrick Oot of Verizon, with help from Phil Strauss of H5, Inc., and Joe Utsler, a project manager of LexisNexis Litigation Services. The best Match Game question I could dream up was a quote by Marcel Proust, the French lawyer turned writer who lived from 1871 to 1922. One of the most famous quotes of the Marcel Proust is: “The voyage of discovery is not in seeking new landscapes, but in having ________?”

No one in the L.A. audience could fill in the blank, but unbeknownst to me, the father of one of the panelists, Phil Strauss from H5, was none other than Walter Strauss, one of the country’s leading Proust scholars. Phil of course knew that the answer was NEW EYES. “The voyage of discovery is not in seeking new landscapes, but in having new eyes.” The idea here is that we need new eyes, namely automated search technologies, to see the relevant evidence in ESI. Our human eyes are too slow, and weary too quickly, for discovery in the massive quantities of ESI that lawyers are faced with today. Since Phil’s Dad had recently passed away, the unexpected Proust e-discovery connection was an especially nice touch for us all.

The main case we discussed was Victor Stanley, which I have previously discussed in Hundredth Blog: Thoughts on SEARCH and Victor Stanley, Inc. v. Creative Pipe, Inc. There was some disagreement in the panel on the impact of Victor Stanley and whether and when attorneys should hire search experts to help them with a case. Phil Strauss, aside from being the son of a Proust scholar, is a practice director of H5, a linguistic/information retrieval and consultancy company. Naturally he was the strongest proponent of bringing in experts to help on search issues as Judge Grimm opined was necessary in Victor Stanley. But Patrick Oot, who heads up Verizon’s e-discovery team, is far more reluctant to incur the added expense. I am somewhere in the middle, with the focus on scalability and proportionality, considering the size, dollar value of the case, and the cost of review. If hiring an expert, or using special, albeit expensive concept type search software can reduce the volume of ESI enough to pay for itself, then by all means use it. The new eyes are then well worth it. The quality of retrieval will also improve as an added bonus to the cost savings.

For cost control, the game show theme Craig suggested was The Price Is Right. Here I was helped by Rick Hauser of Farmers Insurance. He is an attorney on their e-discovery team, and is in charge of litigation cost control overall. He was a good complement to my presentation focusing on e-discovery teams and how they are the Holy Grail of e-discovery cost control. As usual, the killer statistic in my presentation comes from CISCO, who brags that its e-discovery team saved it over $25 Million in the first full year of operation.

It was a creative challenge to makes slide on e-discovery issues with game show themes, but one that I enjoyed. For instance, for The Price Is Right, I came up with the question: “What is the price to review one terabyte of ESI?” The answer, upon the authority of Anne Kershaw, is approximately $18,750,000. (This assume that one terabyte equals about 75,000,000 pages, a review time of 50 documents per hour, and thus 375,000 hours of review.) But by far the most imaginative e-discovery event in the whole show was Craig Ball’s own E-Discovery Jeopardy. There I was pleased to sit on the front row as the only confessed blooger for this entertaining CLE.

Craig Ball’s E-Discovery Jeopardy

Craig created a terrific PowerPoint presentation that mimicked the Jeopardy game show perfectly, including effective use of video clips from the game itself. He has done this several times before with great success. Craig does an excellent Alex Trebek impersonation and begins by selecting three volunteer contestants from the audience. At this show the contestants were Charles, Nancy and Travis. Nancy was a paralegal specializing in e-discovery, and Charles and Travis were senior level techs. Apparently no lawyers in attendance were brave enough to volunteer, myself included. Craig’s PowerPoint slides mimicked the Jeopardy “Answer Board” perfectly, except that all of the categories, clues, and answers were related to e-discovery. In the first Jeopardy board the six categories Craig came up with were:

I Never Metadata I Didn’t Like
Alphabet Soup
Down to Cases
E-Discovery Lingo
By the Numbers

The “I Never Met a Data …” category had questions in some way pertaining to metadata, the “Down to Cases” questions all pertained to famous e-discovery cases, etc. For example, a clue on the Answer Board might be: “the fingerprint of all ESI” where upon the correct answer would be “What is hash?” Very clever stuff here, and the whole presentation had the look and feel of the game show. The contestants picked a category and dollar amount that indicated degree of difficulty. If they thought they knew the answer, they would ring their bell. All of the Jeopardy rules applied, and there was even a panel of judges to decide who rang a bell first in close calls, and there were many. The contestants were all good sports, and tried very hard, especially since there was a real $100 gift certificate for the winner. They got the question right almost half of the time (ok, I’m being generous). After each answer Craig would give an explanation of the correct answer and explain why and how it is important to e-discovery. That is where the learning took place.

Craig has thus figured out a way to make the infusion of real knowledge, often very technical and dry information at that, a fun experience. It is especially enjoyable for the audience who does not have to suffer the embarrassment of not knowing Craig’s many difficult questions. Still, when the contestants are all stumped, Craig gives the audience a chance to shout out the answers, which I enjoyed doing myself on a few occasions. So everyone gets to play along, including the judges who were hand picked in advance for having some sort of background and expertise in e-discovery.

Just like the real game show, E-Discovery Jeopardy also has a second round of Double Jeopardy, surprise Daily Doubles questions where you bet what you want, and even Final Jeopardy where you can bet all of your winnings to try for a come-from-behind victory. The six categories in Double Jeopardy were again very clever:

Playing by the Rules
Geek Speak
Beginning with “E”
Search Me
More Alphabet Soup
Computer Forensics

By the time Double Jeopardy was over, one of the Techs, Charles, who is a security expert, had amassed a huge lead. The Final Jeopardy question, which Craig was gracious enough to allow me to reveal in this blog, was:

The jurors who convicted this domestic diva were disturbed by her reported efforts to tinker with ESI on her assistant’s computer.

The correct answer of course was “Who is Martha Stewart?” and all of the contestants got it right. That meant Charles walked away with the gift certificate.

Congratulations to Craig Ball for coming up with the most creative e-discovery CLE yet. He covered 61 different e-discovery words/issues in an hour’s time, and made it all fast-paced and entertaining. With a different audience, this could have been, should have been, very exciting. I am told it has been at other venues where Craig has done E-Discovery Jeopardy before. (The LegalTech attendees in L.A. were very laid back; many seemed like they were paralegals and techs ordered to go to an e-discovery CLE on a Friday afternoon when the boss had already gone home for the weekend).

I have seen many, many e-discovery CLEs, and this was one of the best. Once again, Craig Ball sets a high standard for the rest of us to follow. He has got me thinking of how to make my own e-discovery contest. Perhaps some kind of reality show might work? America’s Got E-Discovery Talent perhaps? If you get any ideas, please let me know.

Legal Tech Key Note Speeches

The keynote speaker of the first day was Charles James, Chevron‘s General Counsel, and a former antitrust partner at Jones Day. He admitted to technological illiteracy, and so explained his presence as the lead speaker of a high tech event because, as he put it, “I am the target … my IT needs are astronomical.” Seems somewhat odd to me, but who can say no to the general counsel of a big oil company. He explained that Chevron has more than 400 in-house lawyers, gets sued an average of 2.5 times a day, and spends $190 million a year on outside counsel, spread out among 500 law firms. Yes, Chevron is a big consumer of legal services, and it pays to know what the customers want.

Mr. James spoke of his successes since he became General Counsel six years ago, none of which pertain to e-discovery, so I will skip them here. He did include e-discovery in his list of gripes, however, focusing his main wrath on the propaganda of vendors. He dislikes gross overselling of capability and functionality of products, and hates jargon like “complete enterprise solution” and “seamless integration.” Who doesn’t? But certainly there were a few vendors in the hall nearby who could have profited from hearing this message. Most still puff and over-promise to an embarrassing extent. Of course, when everybody else is shouting, who can hear the plain talking whisperer?

Mr. James also noted the convention center’s proximity to south central L.A., and quoted Rodney King’s famous line: “Why can’t we all get along?” He says that compatibility between different software systems is a major issue for Chevron. So much for “seamless integration.”

Finally, Mr. James, who was billed as a controversial speaker, delivered with statements such as: “Electronic discovery is a waste of society’s resources.” Instead, he imagines a world without plaintiffs lawyers, litigation holds or prosecutors. Kind of like John Lennon’s imagining a world without government, or me imagining cars that run on water. He wants a world where we all just get along, where no one would ever sue anyone else. Who doesn’t? Still, back in the real world, his company is sued 2.5 times a day, and counting; so, like it or not, e-discovery is here to stay.

The keynote of the second day was delivered by the decidedly uncontroversial Magistrate Judge Elizabeth D. Laporte, from San Francisco district court. She was well prepared and reviewed the holdings of many of the current e-discovery cases of the day. Her presentation included the major cases coming out of California, such as Qualcomm and Columbia Pictures. She read many of the key case quotes, and like a good judge, said nothing controversial or outside of the record. The audience seemed interested, and if you were new to e-discovery, and most in attendance seemed to fit that bill, you would have learned a great deal from her excellent speech.

Judge Laporte also agreed with Judge Scheindlin’s Zubulake Duty. She stated that legal counsel and their clients need to understand and learn about their ESI prior to attending Rule 26(f) “meet and confers” and other pretrial discovery conferences. She said the days of “drive by conferences” were over. Lawyers today either have to learn the complex technologies themselves, or bring in experts to assist them who can. This is now mainstream gospel truth among the federal judiciary. Yet, it is too painful a truth for many attorneys to hear. In my experience, many attorneys, especially otherwise terrific trial lawyers, still live the lie that e-discovery is not important, and can safely be ignored. In the words of the immortal Marcel Proust:

Lies are essential to humanity. They are perhaps as important as the pursuit of pleasure and moreover are dictated by that pursuit.

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