Awful story out of Toronto . . .

Well, I hate to make my first "two-wheel" post of the year a report on this story, but events beyond my control have made it the first newsworthy biking news of the year. It involves both bikes and the law, but not (as yet) technology.

Apparently Ontario's former Attorney General, Michael Bryant, has been charged with a variety of vehicular homicide charges for his alleged involvement in the death of a Toronto bike courier, Darcy Sheppard near one of Toronto's busiest intersections - Bloor and Bay. Sheppard had a baby boy who is now without a father.

This is a dreadful example of who loses when there is an altercation between a motorist and a cyclist.

To all of you out there on two wheels: be safe.

Hitchiker's Guide to the (Blog) Universe article in ALSP's newsletter

Quick blog post this morning after something of a hiatus (I wish I could tell you I've been doing lots of biking as an excuse, but I haven't - long story).

I have an article at ALSP's website for their e-newsletter all about finding your way around the blog universe. I've invited comments here and on Twitter asking for which eDiscovery blogs you like to read as I'm sure there are many I don't know about.

You can find the article here, but be aware that you'll need to log into the site once this month's issue is archived by ALSP. To log in, you'll need to be a member of ALSP (which I highly recommend, by the way)

Comment away!

New column on Slaw

In case you haven't seen it yet, I have a new column out on Slaw.ca, the Canadian legal/tech collaborative blog website.

In this column I highlight something that is concerning a number of people in the eDiscovery world: the need for basic research to determine just how effective our eDiscovery tools and methodologies are.

Why is this important?

Well, I think in all the excitement (for us geeks, anyway) over how cool the technology is, it's easy to forget that the end point of all this whiz-bang technology is to find the relevant evidence and get it admitted in court. For something to be admissible you need (to a greater or lesser extent) to be able to demonstrate that the evidence is what it purports to be.

Without some basic research, there is a danger that we will all just assume that Tool X or Process Y does what we think it does because no-one has ever really checked to see if it really does do that or not.

The TREC Legal Track project is a good example of the kind of much-needed research that should be performed. I hope to see much more like it.

Summation Tip of the Week #2

This originally went out by email in mid-April.

Using Summation for tracking undertakings

This week’s tip explains a simple way to use Summation to help you track undertakings – both yours and those of opposing counsel.

How does it work?

If you are fortunate enough to have electronic copies of transcripts in Summation-ready format, you can use Summation’s searching abilities to help you find undertakings quickly.

First you import the transcript into Summation, and then use Summation’s search features to help you find the undertakings.

By searching on the word “undertaking” or “undertake”, or even words like “give” and “copy”, you will be able to find most instances of where either you or opposing counsel have agreed to undertakings. Once you’ve found an undertaking, you can create a transcript note to mark the spot and help you track the status of the undertaking.

In the transcript note itself, you will be able to:

• Add any additional comments (such as the bates number of the document or the status of the undertaking)
• Add issue codes to the note (such as “undertaking”, “refused”, “our undertaking”)
• Add a link directly to the document in question if you have it in your Summation case or on your network in electronic format

Pros and Cons

Some advantages of tracking undertakings this way include:

• Being able to quickly locate undertakings in one or more transcripts
• Being able to run reports from issue codes to find undertakings and their status
• Tracking of additional information that you include in your transcript note (such as the date of the request, and who asked for it)
• Having quick access to the document in question directly from the transcript
• Being able to quickly run a report and provide it to opposing counsel

Some things to bear in mind with tracking undertakings this way:

• Not everyone will actually use easily identifiable words when referring to an undertaking. A lawyer might just say “we can get that to you” – and so you should be aware that simply searching the transcript with typical keywords might not be enough.
• You have to keep the transcript notes up-to-date for them to be the most useful to you – you might find this more trouble than it’s worth.

Hope you all find this useful! If you want to get these tips by email, drop me an email at dtwestwood (at) intechgration (dot) com.

Leg@lIT 3.0, upcoming articles, and other news . . .

I've been busy the past few weeks!

First was my second CompTIA A+ exam, which I passed with flying colours: I am now a certified A+ IT technician which basically means I now know not to change out the memory in my laptop unless I'm wearing leather soled shoes and cotton clothes, standing on a rubber mat in an environment that is not overly dry, and have an anti-static wrist strap on. Okay, I know a little more than that, but studying for it did help plug a few of the more annoying gaps in my learned-on-the-job IT skills.

Then it was preparing for the LegalIT 3.0 conference in Montreal where I was giving a presentation on the "Virtual Road to Trial" with Sharon Redding of Bell Canada and Kelly Inglese of McCarthy's (Nicholas Trottier stood in for Kelly at the last minute). (I also have a white paper that I did for the conference on the use of technology throughout litigation which has not yet been published - contact me for a copy). I tweeted live from the conference which was kind of fun, although I'm sure I missed some of the points made in the presentations as a result.

After I got back from Montreal, I jumped straight into doing some actual client work, and I've also been preparing some presentations and articles ("eDiscovery Mythbusters", "eDiscovery - what it means for you" (for a US paralegal association) and an upcoming Slaw post).

All of which is a long winded way of saying that's why I haven't posted anything to the blog in a while, and for those of you that get my Summation Tip of the Week, that's also why you haven't had one for a couple of weeks!

Summation tip of the week

I've started sending out weekly tips for using that ol' stalwart of litigation technology - Summation iBlaze. As not everyone likes having their email cluttered with yet more stuff, even if it is high quality, informative, educational material like I send out (ahem!!), I thought I'd put them up here as well.

For those of you that have had my weekly tip via email and would rather read it here (or not at all), just email me with "Unsubscribe - Summation Tip of the Week" and I'll be sure that you're taken off that email list. Be sure you let me know if you'd rather never hear from me again (in which case I'll head off into a quiet corner to sob) or just don't want to get the Summation Tips.

Summation Tip of the Week No. 1

Using Summation for electronic exchange of documents

This week’s tip explains a simple way to use Summation to exchange documents electronically with opposing counsel.

How does it work?

A Summation Briefcase will take the documents you want to send to opposing counsel (usually as an Affidavit of Documents) and package up the images, along with their document information from the columns that you choose into one file. You can then burn the file to CD or (if it’s small enough) send it via email to opposing counsel for them to import into their own Summation case database.

Pros and Cons

Some advantages of using a Summation Briefcase include:

• No need to print out all your documents, or make copies
• Reduces postage costs
• You can redact the images if necessary and Summation will permanently apply the redactions in the Briefcasing process
• You can select which columns (and therefore what information) to send to opposing counsel
• You can give your documents new, consecutive numbers that disguise any “gaps” in the Bates numbers
• Opposing counsel can integrate your Briefcase with their own documents in Summation, or view it in a separate Summation database

Some things to bear in mind with Summation Briefcases:

• You need to have Summation iBlaze to create and directly access Summation Briefcases
• Summation Briefcases are only good for up to 20,000 images or so – you might not be able to create or view ones that are larger than this
• If you’re going to use Summation Briefcases to exchange Affidavits of Documents, get opposing counsel’s agreement ahead of timeTry to match the way you enter information in the columns with opposing counsel. You can discuss this at your Meet and Confer or include it in your Discovery Plan
• Be careful about including OCR - it can reveal text in a redacted document

Great article from the ABA Journal Magazine this month on a research project being conducted by the Text Retrieval Conference Legal Track (http://trec-legal.umiacs.umd.edu/). In short, as the article's title suggests, they're "in search of the perfect search", which translates to "just how many documents are missed with the various search technologies".

The answer (so far) is sobering:

Legal Track showed Boolean keyword searches using commands such as and, or
and within so many words across a range of different hypothetical topics
found only between 22 and 57 percent of all relevant documents cumulatively
retrieved through a variety of alternative search methods. But the Boolean
search was no better or worse than other more sophisticated search methods
tested, and it still represents the current standard.

Wow. That's pretty bad.

Slightly better news is that different searches find different documents, so if you combine several different types of searches, you're able to find up to 78% of the documents. As it says in the article (and as I've said to clients): ". . . No one off-the-shelf method will solve all of your e-discovery efforts."

So, in practical terms, what does this mean?

Well, for smaller data sets where you can feasibly (if expensively) look at every single document you are not as reliant on search technology to find the documents - you can categorize them as you see fit (usually by issue coding) and that, along with the bibliographic information coded into the review database is usually going to be enough to find your documents.

The big issue with this approach, of course, is consistency. Many highly-trained lawyers and legal staff just don't code the same (or similar) documents the same way. Use of near-duplicate technology, for example, can help with this, but you will still find variance in coding between documents that are similar in theme, if not content.

For larger data sets where it would take years for even a large team of people to look at every document, you have to rely on searches of the electronic data (or even OCR, which is a whole other post in itself).

The key takeaway is that you shouldn't rely on just Boolean searches, or just Concept searches, or any other kind of searching to do it all. Expect to use several kinds of search technology. Expect to come up with a smart set of search terms in the first place. If you're looking for documents about cars, don't just search on "autos" and "cars", search on "Ford" and "GoodYear" and "Mechanic" and "battery" and "gas" as well. These terms will pull up documents that are all about cars, but may never actually mention the magic word "car".

Thanks to Ralph Losey's Tweet which led me to the article in the first place.

From time to time, there is evidence of some angst among lawyers that their jobs will disappear - and not necessarily due to the economy (particularly in the US). Paralegals/law clerks (depending on which side of the border you are) were once considered something of a threat to lawyers. Then it was outsourcing. And now it's technology.

These last two are concurrent concerns right now and have been exacerbated, thanks to eDiscovery, by the exponential growth in "potentially relevant" information that has to be reviewed by someone (or something) before deciding if it really must go to opposing counsel. Not to mention figuring out if it is privileged or not.

Lawyers may be interested in knowing that it's not just their own profession feeling the pinch of technology taking over the world. Some scientists may find this article from the trusty BBC a little worrisome: a robot which can not only perform certain experiments, but also plan further experiments to verify its hypothesis.

Imagine how that might look in the legal world!! Not only would WhizBang EDD Soup to Nuts edition manage, identify, preserve, collect, process, review, analyze, produce and present your data, it even figures out if your theory of the case has to be modified, and drafts the appropriate motion/modified Statement of Defence or Answer to Complaint for you!!

Lawyers would be reduced to little more than rubber-stampers (perhaps a new use for Bates Stampers?) of relentlessly logical legal arguments created by their AI equivalents. Best of all, these Litigation AIs (LAIs) wouldn't require absurdly inflated salaries right off the bat, and could work around the clock, pushing up their billables while reducing overhead dramatically. Clients around the world would breathe a sigh of relief knowing that their litigation matters were being handled in a low-cost, logical, perfectly fair and balanced manner.

As Ralph Losey would have it - the practice of law is an art, not a science, and I doubt we're really going to see robots take over lawyers' jobs any time soon.

But it's fun to think about :-)

eDiscovery is not a static thing

Thought you'd all like to see my latest offering at Slaw.ca which takes the 100,000 foot view of how eDiscovery is changing in Canada (and will continue to change).

I think one of the most serious mistakes that can be made in eDiscovery is to assume that once you have wrapped your head around eDiscovery 101/Summation/LAW/managing email/electronic trials/etc. that the job of getting to grips with eDiscovery is done. Unfortunately that's not the case. Technology is ever-changing and the challenge of being in this field is staying on top of broad technological advances and their impact on eDiscovery.

For example: some companies are now embracing Web 2.0 technology (what's that?). How does one capture wiki content? Or blogs? What about your key custodian's Facebook page? Are any of these important in your litigation?

Yes, complexity is here to stay in eDiscovery. Unfortunately there are many in the legal field who believe that all they need to do is get to grips with the concepts of metadata and PSTs and that's all they need to know. Not so. Although it may not be necessary for every person on the legal team to understand all things technical, a general awareness of the technological trends and their impact, and willingness to listen to their experts on how it affects their case, are essential.

How much data?

Back in the day when computers like these (my first computer!) had data storage in the megabyte range, no-one thought of storing anything other than, well, numbers and text on them. Perhaps some basic graphics. Well, okay, you could do a fair bit with 80MB of space.

Nowadays, of course, you can fit 1TB of data into something that's a quarter the size (more or less) and we store our entire lives on there - photos, scanned documents, movies, music, finances, games, spreadsheets, slideshows, emails, contact lists . . . . Oh, and work stuff too. This exponential growth in data storage capabilities is known as Moore's law.

But in the future, we may see that external 1TB hard drive shrink down to the size of a quarter. Thanks to some pretty nifty techniques from nanotechnology, we can look forward to our entire lives being stored on something the size of your average USB thumb drive. Or even smaller. After all, this technology claims that it will provide 1TB of storage on the surface area of a quarter.

Pretty impressive, huh?

Just imagine the eDiscovery of the future. Instead of a litigation with a couple of terabytes being considered on the large side, we'll be looking at petabytes of data. One hopes that search technologies are vastly improved for these oversized haystacks . . .

Although I do have to wonder just how much data can be created by just one person, or just one company.

Hope for Obsolete File Types

While reading the news on BBC's website about the Continental plane crash, which happened only a few miles from where I live, I found this article tucked away in the Technology section.

A number of researchers across Europe are involved in a project called Keeping Emulation Environments Portable (appropriately "KEEP" - there must be people out there that have a full-time career creating project names that result in catchy acronyms). The goal of the project is to create emulators that can read whatever obsolete file format you might have floating around.

It's a bigger problem than you might imagine: the number of unreadable documents in archives is beginning to mount up. Britain's National Archive estimates that it holds enough information to fill about 580,000 encyclopedias in formats that are no longer widely available; and research by the British Library estimates that the delay caused by accessing and preserving old digital files costs European businesses about £2.7bn a year.

It will be interesting to watch this project as it develops. Imagine being able to take your Wang word processor files and read them in true native format thanks to an emulator (after carefully preserving them and making evidentiary sound working copies, of course).

Could this finally mean the widespread adoption of technology at law firms?

Well, probably not. But this article at the NYTimes suggests that the demise of the billable hour is, if not imminent, at least more likely than it has been for a while.

I've long maintained that the billable hour promotes inefficiency and is not conducive to the long-term interests of law firms. It's nice to see that clients are actually demanding fee structures that promote efficiency (the flat fee) and reward performance (such as a flat fee plus a bonus for achieving a quick settlement).

Perhaps now, law firms will take the adoption of serious technology a little more to heart.

There is a "but" however. As I'm fond of telling my clients, it's not just the technology, it's also the workflow you build around it, and the people using it. (As our logo says - it's People Process Technology - in roughly that order.)

All the best whiz-bang technology in the world will not make you more efficient if you don't train your people on how to use it properly and haven't thought through the process that the technology is supposed to enhance.

So before any lawyers reading this rush off to buy the latest-and-greatest piece of technology, plan how it's going to fit into what your firm actually does, who will use it, and how much you're willing to spend on training.

Otherwise you'll end up with just more really cool-looking shelfware . . .

A fascinating snippet from Slate today that nicely demonstrates that if your company has yet to put together a decent records management policy, you're not alone.

Apparently US federal electronic archiving policies are next to non-existent. Oh yes, everyone in the various branches of federal government understands the paper archiving policies, but electronic records are left out in the cold. (Speaking of which, will winter ever end? I'd like to get back to biking).

A 2005 report by the National Archives and Records Administration stated that "electronic records are generally not disposed of in accordance" with federal regulations. In particular, many e-mails are "being destroyed prematurely". For followers of eDiscovery issues, the reasons for premature destruction and failure to follow supposed records policies will be familiar:

1. Use of personal computers to write emails, and subsequent failure to turn in those files.
2. Electronic records are less tangible than paper records and they are often not considered to be records needing to be filed and retired properly.
3. The job of records custodian is left unfilled, and when filled the holders of the position are not properly trained in their record retention obligations.
4. The National Archives' technology branch (which is the entity responsible for retaining appropriate records) is so antiquated that it cannot process common file types such as Microsoft Word documents and PowerPoint slides.

This last reason for failure to archive records properly may not seem to be immediately relevant to most companies. However, it's not unusual for companies to have a mirror-image of this problem: an inability to read records because they are stored in a format that is simply too antiquated to be of any use. (Anyone have any 51/2 inch diskettes left? What about the hardware to read them?)

Although this article is slanted towards the need for federal agencies to respond to Freedom of Information Act requests, but could equally apply to companies needing to deal with eDiscovery demands.