Discovery

ALL YOUR DOCS ARE BELONG TO US.

Litigators at large law firms spend an inordinate (and depressing) amount of time on discovery disputes. They bombard poor magistrate judges with motions to compel. They bicker over deposition timing and location. They compile massive privilege logs. They file letter briefs with the court, explaining their entitlement to certain documents that opposing counsel is withholding, without justification.

Partners who work on such matters often say to their associates, “Find me a case in which a judge sanctioned a party for failure to comply with discovery obligations — preferably a case in which the non-compliance is exactly what opposing counsel is doing here, and ideally featuring soaring rhetoric about the importance of following discovery rules.” The associate spends several hours on Westlaw or Lexis, then returns empty-handed; there was nothing quite on-point. There was certainly no soaring rhetoric.

This shouldn’t be surprising. Do you think successful lawyers give up the practice of law in order to keep dealing with discovery-related headaches, for a fraction of what they earned in the private sector? Of course not. Federal district judges prefer to write published opinions about Sexy Constitutional Issues, leaving their magistrates to oversee the discovery playpen. In the rare discovery-related cases that do go up on appeal, federal circuit judges affirm as quickly and summarily as possible, so they can get back to the fun stuff. [FN1]

If you’re a Biglaw litigator searching for a published opinion addressing discovery issues, well, today is your lucky day. Check out this great opinion, just handed down — not by a mere magistrate or district judge, but by the U.S. Court of Appeals for the Tenth Circuit….

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Recently on my blog I have been posting different viewpoints as to whether the e-discovery industry should have its own specialized certification. In the past year there has been a push by several organizations to establish standards of testing in the industry.  In fact, a few weeks ago, the newly formed Association of Certified E-Discovery Specialists or ACEDS (prenounced “A-Saids”) held an inaugural conference in Hollywood, Florida. Although ACEDS was just founded last year by the Intriago Group, led by a former McDermott Will & Emery partner, Charles Intriago, the meeting had over 300 attendees — not bad for a first conference.

I had the chance to speak with two attorneys who spoke at the ACEDS meeting. They provided me with a better understanding of whether the movement toward certification is simply a passing trend or a sign of things to come…

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From a legal staffing viewpoint, it means that a lot of people who used to be allocated to conduct document review are no longer able to be billed out. People get bored, people get headaches. Computers don’t.

Bill Herr, a lawyer who used to supervise document review for a chemical company, discussing new e-discovery software that can analyze documents quickly and cheaply. Herr is quoted in an interesting New York Times article entitled Armies of Expensive Lawyers, Replaced by Cheaper Software.

From “concept searching” to “cloud computing,” every year there are new buzz words and catch phrases that enter into the lexicon of legal technology. Of course, when you are dealing with technology of any sort, you should expect to update jargon regularly (such as from 3G to 4G to 5G, whatever that means).

2011 is shaping up to be no different. This year’s “it” phrase is already emerging in the industry. It evolved from the buzz words of yesteryear, and if this new phraseology is worth its salt, these new advances could drastically change how law is practiced for years to come.

So what is legal technology’s newest terminology?

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Daniel de Juan, a sales engineer from Mitratech, summed up perfectly what LegalTech was like for me this year: “Being at LegalTech is almost like being at a casino, in the sense that you lose all track of time.”

Two years ago, I found the conference to be pretty intimidating, and that was when the conference was much smaller due to the weak economy. Last year, LegalTech New York was much bigger, and I found it slightly overwhelming. This year, due to some bad planning on my part, I came home from LegalTech utterly exhausted.

It seems I wasn’t the only one who felt this way. After a quick search on the Internet, I have seen only a few things written up about the conference, so I’m guessing many people went through the same experience. (For example, I spoke with members of The Posse List on the first night, and they told me that they were gearing up to do 36 interviews during the two and a half day conference — so it must have been a whirlwind for them as well.)

That said, here are some musings from my adventure last week….

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I know lots of guys fantasize about boinking “barely legal” teenage girls. Not me, I like women: fully formed, adult women. There’s just something unseemly about older men salivating over girls who could have been in high school a year ago. Call me crazy, but it’s just more interesting as an adult to be intimate with other adults.

Similarly, I like my lawyers to actually practice law. There’s something unseemly about watching market forces turn law school graduates into glorified paralegals and secretaries. Call me a prude, but there’s just something gross about seeing young, nubile attorneys going around begging for document review positions. These people spent three years of their lives and six figures of their (or someone else’s) money to get law degrees; they should have something to show for their efforts.

But even if I don’t like to look, I can’t deny that this is happening. We are all living in a time that will be studied by future generations: a time when attorney career paths bifurcated, between traditional partnership-track associates and what I’ll call “barely legal” career paths….

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Ed. note: Gabe Acevedo will be covering LegalTech for Above the Law this year. If you are interested in communicating with someone from ATL about LegalTech coverage, please contact Gabe at gabe@abovethelaw.com. Thanks.

It seems that judges are no longer afraid to unleash the power of the gavel when it comes to e-discovery violations.

There has been quite a buzz in the e-discovery community this week about an article in the Duke Law Journal by attorneys Dan H. Willoughby Jr., Rose Hunter Jones, and Gregory R. Antine, of King & Spalding LLP. Willoughby is the partner in charge of the firm’s Discovery Center, and Jones and Antine both practice in the e-discovery arena.

The article, entitled Sanctions for E-Discovery Violations: By the Numbers, was mentioned in the ABA Journal and the WSJ Law Blog, tweeted extensively, and summarized in vendor blogs such as Catalyst and Clearwell.

So what are the authors’ findings? Let’s take a closer look…

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This week, The Rundown is going international. LegalTech is just around the corner, and there will be a solid contingent of lawyers from the United Kingdom in attendance.

Speaking of LegalTech, I’m going to be covering the conference for Above the Law. If you are interested in communicating with someone from ATL about LegalTech coverage, please contact me at gabe@abovethelaw.com. Thanks.

In this week’s Rundown, we will touch on the LegalTech conference. We’ll also link to a quick interview with the General Counsel of the UK’s Serious Fraud Office, who recently discussed the UK Bribery act and its connection to e-discovery.

Staying in foreign territory, why has there been a recent boom in cases requiring foreign languages? I also highlight two articles of interest on outsourcing…

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(And a note about ATL’s LegalTech coverage.)

Ed. note: This is the latest installment of Inside Straight, Above the Law’s new column for in-house counsel, written by Mark Herrmann.

This post is a two-fer: It both suggests a way for outside lawyers to develop business more effectively and offers a tip to in-house counsel to protect their legal departments. (I bet you can hardly wait.)

First, the business development tip.

Outside lawyers often ask whether in-house lawyers are annoyed or impressed by the brochures that firms mail (or e-mail) to clients and prospective clients. I, at least, am not annoyed to receive those things. It’s awfully easy to delete things unread, so they don’t exactly impose a burden on me.

But am I impressed by the brochures? Obviously not; that’s why I now typically delete them unread.

What’s unimpressive about the brochures? Let me count the things….

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This week, when I wasn’t thinking about how to crack down on lunch thieves and trying to recoup the money I paid former Judge Porteous over the last few years (which put me in a bit of a financial bind, but I’ll be fine because I’m on the short list for a job at Skadden’s San Francisco office), I found time to piece together another Rundown of legal technology for the week.

In this edition, we go back to the future to discuss “2001: A Space Odyssey.” There is also a free download addressing European privacy and e-discovery, as well as other related content.

In addition, the most famous plaintiff in e-discovery will be speaking in Boston. And have you ever wondered what the legal industry will look like in ten years?

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