e-Discovery Team

Facebook’s success shows that for organizations to prosper in today’s world they must: focus on impact, be fast, be bold, be open, and build social value. To attain these goals they must adopt iterative processes for continuous improvements; they must promote a hands-on and meritocratic culture where an idea is adopted if it works, no matter who suggested it. This is the core meaning of Facebook’s motto – Code wins arguments. It is a very practical and egalitarian approach to management. Too bad most of the e-discovery industry titans do not understand this, as my recent article in LTN explains in greater detail. Vendor CEOs: Stop Being Empty Suits & Embrace the Hacker Way.

In my earlier blog “The Hacker Way” – What the e-Discovery Industry Can Learn From Facebook’s Management Ethic, I focused on Mark Zuckerberg’s Letter to Investors. The letter disclosed Facebook’s core values, which Zuckerberg calls the Hacker Way. My blog also began an exploration of how this new philosophy of work can be applied to e-discovery. This blog takes the application theme a little further. I am convinced that all organizations in the e-discovery world – law firms, vendors, corporations – can benefit from applying Facebook’s three-fold code wins methods, and five-fold Hacker Way goals. We all need to adopt 21st Century attitudes to stay relevant. We are otherwise in danger of joining the empty suit parade and offering services and products that are more like Blackberries than iPhones.

It doesn’t take a Zuckerberg to realize that these methods and goals could be applied to any modern field of endeavor. Are you involved in some way in management of your law firm or company? Do you want to stay competitive and remain relevant? Do you want to attract and retain the top creative and technical talent like Facebook, Google, and Apple do? If you stand still and keep the old management style and values, you will quickly fall far behind. You will lose the next generation of movers and shakers. The business and professional motivations to study the new management ethic are obvious. I hope you will at least read on and think about it, maybe even be bold enough to try it out.

Personal Apps?

There may also be applications of the Hacker Way to your personal life and code of conduct. Do you want your life to have an impact on the world? To have meaning? Do you want your life to embody ethical values that you are proud of? Do you share, or are you closed off, an iconoclastic island? Are you open to change, no matter how fast it may come? Can you take action, make decisions? Can you quickly implement your decisions? Are you efficient and productive? Do you dare to be bold, or just follow timid conventions of old?

I certainly will not try to answer these questions here, nor share the kind of personal fractal solutions that I try to fashion on a day-to-day basis; the iterations of action, observations, analysis, adjusted actions, repeat.  I just raise the questions to stimulate your personal thinking. Everyone has their own solution to the enigma that is life. There is no one right answer. We each have our own path on the Hacker Way. This essay will instead focus on the practical applications of Hacker Way to e-discovery management.

Impactful

In e-discovery, like anything else, you have to focus and prioritize. You cannot do everything at once, at least not if you are going for impact. Scatter-brained is a recipe for failure. Any writer of appellate briefs will tell you that. Focus on the key issues if you want to persuade. Put aside the rest. You have to pick and choose your battles, your time, energy, and money. All tasks are not created equal. Some are more important than others. For instance, in e-discovery look for the smoking guns first, check out the ESI of the key custodians first. Do phased discovery and start your search and production in the data sectors and custodians most likely to give you the biggest bang for your buck. Most of the time with phased production you never need to go beyond the first phase. The low hanging fruit you find up front is usually more than adequate to try the case in a just, speedy and inexpensive manner.

In all kinds of project management, not just discovery, you should focus first on the problems and issues that could have the biggest impact, and then move on to secondary problems. A business manager, just like a wise project manager in an e-discovery review, knows what to focus on and when. Empty suits in the board room lack this kind of focus and ability to prioritize. Perhaps they just do not understand what is important, and what is not. Maybe they are too preoccupied with next quarter’s profits to see the big picture.

Back to e-discovery, the big picture, from the highest elevation, shows that the core problems are the high costs of e-discovery and the low skills of practitioners in using new technologies. You could say high costs and high risks, but I really think that the risk management problem is secondary to the skills problem. Attorneys trained in e-discovery have the skills to avoid the colossal mistakes that we read about in the court opinions every day.

To maximize impact e-discovery teams everywhere should focus on these two, costs and training. They should look for bold new ways to control costs and train attorneys. As discussed briefly in “The Hacker Way” – What e-Discovery Can Learn From Facebook’s Culture and Management, for me cost control means focusing on search, since review is the most expensive part of any production project. It also means building new aggressive culling methods, such as Bottom Line Driven Proportional Review and multimodal predictive coding assisted review. SIRI and Pandora are the way of the future, not legions of low priced lawyers. The study of the non-profit Rand Corporation on e-discovery costs has reached the same conclusions. Where The Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery.

This is also an area for vendors to be bold. Vendors must lead the way not only in training, but by making advanced predictive coding type software less expensive than it is today. To be the kind of insanely great software the legal profession needs to prosper in these days of data deluge, the software also needs to be even more effective than it already is. Yes, we need cheaper and better. It can be done.

Vendors can attain the profits they need to keep feeding research and improving their products, and can lower prices at the same time, but they have to take a new approach. They have to focus more on volume. They have to stop thinking about predictive coding as a luxury only product where they make a lot of money on a few customers. Increased sales quantity does support lower prices. For example, if you make a thousand-dollars each on a software license, but do so on ten-thousand users, you will make $10,000,000. That is ten times as much profit as you would make selling licenses to one-hundred users with a ten-thousand dollars profit on each license ($1,000,000). Too many companies are still stuck in the low-volume, high-priced model.

You can attain the critical mass of higher sales, but to get there you have to lower prices and improve training. You have to do both. In-depth training and guidance will encourage greater utilization by the legal profession. The practice of law has always been just that, a practice. That is how we lawyers really learn anything, by doing. So although price is important, training is just as important, perhaps even more so because lawyers are involved, often subject matter expert lawyers at that.

We also need pricing models that are simplified and encourage all-in participation. The more data that goes into predictive coding, the better. That is how data analytics work. This also opens up a new field of application for search and review software, and with it a whole new customer base. By crunching ever larger datasets advanced data analytics can become part of corporate compliance. That means using advanced search software before litigation. It can even mean preventing litigation. With artificial intelligence enhanced data management the savvy employers and law firms of the future will be able to detect internal torts before they happen, or at least before they can cause real damage. Now that is real impact. The movie Minority Report is not as far-fetched as you might think when it comes to Big Data analysis.

Consider for instance Laura Kibbe’s article There’s More to TAR Than Litigation (LTN Aug, 2013) where she says:

Despite its cutting-edge reputation, on the document production front TAR is approaching mainstream. But what if it could also be used proactively in business to help manage information — or gain insight into problems before they occur? Using these tools to identify patterns of behavior, risk decision points, and control data expansion has the potential to not only save money, but also facilitate proper risk planning and training in the ordinary course of business in all industries.

Quite a few people I know are starting to think this way about the use of AI for corporate compliance and information management. This is a form of crime prevention, just like in Minority Report. It is also a question of business intelligence. It is only a matter of time before a truly bold CEO gets the message and designs software that can be customized to accomplish these Big Data tort-prevention, business efficiency ends, not to mention training in risk-control, pre-litigation usage methodologies. (You really cannot have one without the other.)

Laura’s article mentions one way it could be used in the pharmaceutical industry, a place where she is an SME. Her article shows how a drug company could search and analyze its data to prepare in advance for possible claims before a new drug is released. Lawsuits could be anticipated. Any failings could be corrected in advance of the new drug release.

There are many other possible applications. Fraud prevention and trade-secret theft come to mind. So too does prevention of discrimination, wrongful discharge, and retaliation. The potential applications are as endless as the law itself. It also goes beyond law, into general quality control and business efficiency. The potential impact of all of this is truly mind boggling.

Fast

This kind of new software and methods can make a huge impact on the law, indeed on all of society. But getting these new products and methods to market require fast action. First of all, the need is great. Secondly, the competition is great. There can be a large first to market advantage, but only if quality controls are observed and it is done right. There is a difference between fast and reckless; moreover quality is always critical.

Acting fast is second nature to most e-discovery practitioners by now. The 2006 Amendments to the Federal Rules of Civil Procedure put a premium on speed. We have now had seven years of experience with the need for speed. We all know you have to work fast to get your act together before the initial 26(f) conference. You have to be prepared to discuss and disclose your e-discovery plan, including your preferred format of production, preservation efforts, and plan for search and review. Evolving case law on litigation holds also requires you to act fast, to send out written notices quickly, to collect key ESI quickly.

Obviously most search, review, and production projects also require you to act very fast to meet tight time deadlines. How many files per hour can your CAR go, your Computer Assisted Review? You have got to be fast to succeed in e-discovery. Yet, at the same time, you must act reasonably and minimize mistakes. This means that you must have quality control methods built into your CARs. You have to know when to double-check your efforts. There are straightaways in e-discovery where you can go fast, such as irrelevancy culling, and there are curves, such as privilege review. You have to know when and where to slow down so you don’t go flying off the curves.

Some analyses and conversations need to happen quickly, right at the beginning of a case. Determination of key players and key player interviews and preservation instructions come to mind. So too do conversations with IT to suspend automatic deletions and old hard-drive recirculation. So many things in e-discovery are front-loaded that all who practice in this field are used to this kind of time pressure. We know how to act fast, yet tempered, and not hurried. We expect the same from our vendors. Most of the project managers of vendors seem capable of acting fast, but, alas, not so most of the empty suits they report to. Vendor CEOs: Stop Being Empty Suits & Embrace the Hacker Way.

Fast is also important in law firm management. Firms need to quickly get their e-discovery departments up to speed. They need to move fast to ramp up their attorneys’ skills. Gradualism is a recipe of failure. You cannot just wait until the next generation figures it out. Yes, it may be easier for the twenty-somethings to learn this new area of law, but do you really want them to do that by trial and error on your clients’ cases? Do your clients want that? Anyway, they won’t learn the right way to do things. They will stagger along without the benefit of senior advisers.

For a law firm to move fast, they really need to do what my law firm did, and others have done. They need to hire an outside attorney or attorneys who are already skilled. Then the senior experts can train and help others get up to speed, especially the young rock-star e-disco associates who otherwise practice e-discovery without adult supervision.

Vendors need to move fast too. Indeed, the pressure on vendors is even more intense because the competition is hotter. Speed and early adoption are all important in the world of e-discovery vendors. They cannot slow-poke around with yesterday’s technologies, such as keyword-only based search, or expensive on-site licenses. They need racing CARs. They need to move, and move quickly. They need to bring those prices down and science up, if they are going to win the race. They need advanced search with artificial intelligence type agents that the user trains, i.w. active machine learning based software. Take a look at Nokia’s and Research in Motion’s stock values as compared to Apple. Which team do you want to be on?

Fast does not mean you abandon quality control or appropriate beta testing. Apparently Facebook itself has had to learn this lesson. See Facebook Puts the Brakes on ‘The Hacker Way’. The Wired article by Ryan Tate points out that since going public Facebook has started slowing down product releases:

It’s testing new tools more thoroughly prior to release and then parsing goodies out slowly to help smoke out even more problems. Facebook’s move toward greater testing is a sign of maturation at the company…

I agree this is a sign of maturation, but I do not agree with Ryan Tate that this means Facebook has put the brakes on the Hacker Way. Tate’s article misstates the Hacker Way as being built around the adage “move fast and break things.” But as Mark Zuckerberg’s Letter to Investors shows, that is only a small part of this new work ethic. Moreover, I do not think Facebook has backed off one bit, in fact the speed of product development after going public has increased dramatically. As Tate’s article admits:

In some regards, Facebook is moving faster than it ever has before. Since going public, it has launched a search engine, a mobile “operating system,” a camera app, a pages app, a “poke” app, an app store, an ad exchange, an online store, a gift card, a video sharing system, at least two major news feed updates, and plenty more. The teenaged Zuckerberg, in full hacker glory as a Harvard underclassman, would have approved of the breakneck product release pace.

Fast does not mean reckless. But the more skilled you become, the faster you can move and still remain safe, still remain within acceptable quality control parameters. Knowing just how fast you can go is an artifact of experience, of age, and it looks like Facebook is gaining that experience.

One careful reader pointed out the Tate article in a comment to my earlier blog “The Hacker Way” – What the e-Discovery Industry Can Learn From Facebook’s Management Ethic, which I appreciate. He also criticized the Hacker Way as promoting, or at least tolerating, age discrimination, and said this was rampant in Silicon Valley. This may or may not be going on at high-tech start-ups. I hope not. But I do know if has nothing to do with the Hacker Way ethic, at least not as this old hacker understands it. Not only is age discrimination illegal, it goes against all of the core values of the Hacker Way, which, above all, is built on the importance of values. The Hacker Way is a meritocracy, no matter what the age or color of a person. This is not a youth culture movement, nor an exclusive enclave of the young. It has been around since the sixties, and its primary gurus now are geeks of my age or older. The Yoda of Hacker Way, Steve Wozniak, is hardly a kid. And many think, myself included, that Steve Jobs was at his best after he turned fifty.

Mark Zuckerberg may still be young, but he has learned fast, and as Darth Vader said: The Force is strong with this one. When Zuckerberg and his company gain maturity and wisdom from experience, they will be an even greater power to change the world for the better. I just hope they remain true to the Hacker Ethic and remain value driven. As Zuckerberg put it:

Facebook was not originally created to be a company. It was built to accomplish a social mission — to make the world more open and connected. . . .  Simply put: we don’t build services to make money; we make money to build better services.

The Hacker Way is an ideal, one that has been inspiring to many in the high-tech world for many decades. It is not an excuse to discriminate, nor a credo that sacrifices quality for mere speed. Above all else it is a value driven work ethic, a new model for corporate leadership. There is far more to work than just making money, and the companies that realize that are well along the path of the Hacker Way.

To be continued ….

This entry was posted on Tuesday, August 20th, 2013 at 11:39 am and is filed under Lawyers Duties, Review, Search, Spoliation/Sanctions, Technology. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.