Randolph A. Kahn, Esq., Kahn Consulting	James D. Shook, Esq., EMC eDiscovery expert and Attorney

Date: Wednesday, July 14, 2010
Time: 10:00 AM Pacific

EMC is proud to bring you this special webinar focused on how you should think about handling eDiscovery in 2011. Our esteemed guest speaker, Randolph A. Kahn, Esq., is well known in the legal/compliance circles and brings a wealth of knowledge on eDiscovery.

He will be discussing current trends in eDiscovery that will dictate how you perform eDiscovery in 2011, risks associated with current practices/tools/processes and best practices to consider adopting in order to get ahead of your eDiscovery woes. Joining him in this discussion will be our in-house attorney, James D. Shook, Esq., who too brings tremendous eDiscovery knowledge to the event.

Register Today, as seating is limited for this premium webinar.

All attendees will be entered into our drawing for a new iPad.

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Gain autonomy and receive improved eDiscovery guidance

James D. Shook, Esq., CIPP EMC eDiscovery Expert

In today’s economic environment, companies deploying new technology have to show not just that they will be better and faster, but also just how much faster and better so that they can justify the expense.  Part of the buying process frequently involves gathering data on how much it costs to handle a business process in the current environment, how much can be saved with improvements, and establishing that the savings will justify the cost of the improvement (and frequently, how long it will take to do so).  Most companies refer to this process with the shorthand acronym of “ROI” or “return on investment”.  (In financial circles, ROI is actually a more complex analysis, but it’s still a good acronym for our purposes).

For companies that are looking to bring more of their eDiscovery process in-house, the ROI process can be difficult.  While we intuitively know that we can save money and cut risk with a leading eDiscovery solution, it can be tough to show that quantitatively because financial information is usually not readily available.  Even within the legal department, the cost of eDiscovery is frequently not well-known.  Often, time and money spent on eDiscovery issues is buried with other tasks in time entries from outside counsel; internal costs are generally not tracked at all; and payments to third-party processes are passed through (or marked up) by outside counsel and difficult to locate.

The benefits can also be difficult to calculate.  For example, many companies have poor eDiscovery processes (what we term “Faux eDiscovery“), where they wrongly or negligently ignore data sources and/or sound eDiscovery processes.  Faux eDiscovery can actually be very inexpensive — the real “cost” is in the risk with being caught and sanctioned.  But risk is difficult to quantify.  The result is that some companies trying to improve their eDiscovery processes may actually find a negative ROI (i.e. we only spend $10,000 per litigation now but it will cost us $50,000 to do it right) because they fail to identify or quantify the real ROI — their reduction in risk by handling eDiscovery properly.

If you are putting together an ROI analysis for bringing eDiscovery in-house, here are a few things to consider:

The general statistics available about eDiscovery costs are startling.  It’s well-established that having legal professionals review data – one of the later steps in the eDiscovery process — is expensive, with $18,750 per gigabyte a well-accepted number.  (Gartner, Reducing the Cost and Risk of EDiscovery in 2009, 1/9/2009 at 6).  Over the last several years, the average cost of discovery per case ranged from $621,880 to $2,993,567 (Litigation Cost Survey at 3).  And as noted earlier, Gartner advised an IT eDiscovery budget of $500,000 for a modestly sized case.    (Gartner, Reducing the Cost and Risk of EDiscovery, at 5).

Cutting through the noise, Gartner notes that many companies report a full return on their investment in an eDiscovery solution within 3 to 6 months — or within a single large case.  (Gartner, Marketscope for E-Discovery Software Product Vendors, 12/21/2009 at 2).  While these high-level facts alone may not be enough to convince anyone who requires a detailed ROI, they can help to set the stage for acceptance and also tend to strike a nerve with many C-level executives.

Undertake basic investigation on costs.  Talk to the legal department about how many “cases” they handle in each month (or year), being sure to include internal investigations and employment claims, regulatory inquiries and other matters where data is being preserved, collected and/or processed — not just “lawsuits”.  Ask them if they have information about amounts paid to outside service providers (perhaps through their law firm) for eDiscovery services.  Also check with the people who handle backups and email within the IT department — since different groups within legal may be asking them for help, they may actually have the best view of this work, and could even have hired an outside vendor to handle some eDiscovery-related work.  IT wil generally know whether the company has had to purchase tape processing equipment, additional storage or other non-standard equipment to help the lawyers with eDiscovery.

Check on soft-costs, too.  Most IT departments are only too ready and able to tell someone (anyone!) how much time they have devoted to eDiscovery tasks.  Frequently groups of 2-3 staffers can be assigned full-time or better for weeks or months on a medium or large case.  Without a chargeback model, legal might not even be aware of the massive undertaking to help them.

You may only be able to gather information on a few cases.  In that scenario, try to figure out whether it’s legitimate to extend the information out across the full volume of cases:  were these cases representative of what’s happening?  Do our cases tend to be similar or repeatable?  Do I have a good sampel?  When detailed information is not available — and usually it’s not — your goal is to get an understanding of the magnitude of the spend, and not necessarily the exact dollar amount.

There are a variety of ways in which you can begin to assess the savings that an eDiscovery solution will bring to the company.  In many cases, after purchasing a solution the incremental costs fo reach case will be almost nothing.  The better systems will enable custodian notification, search, preservation, collection and processing within the platform, so that investigators can efficiently handle these tasks.  This is really the purpose of the ROI analysis — case-by-case handling costs should be very small, because the expense is up-front in the purchase and deployment of the solution.

One area where the savings can be significant, but still substantial, is with “eyes-on” legal review.  An efficiently deployed system will help to minimize the amount of data collected, processed and eventually reviewed; but the review volumes can still be large.  And the hourly costs of review will be the same (although you can get some savings from de-duplication, clustering, email threading, etc.).  Still, we routinely see 50%+ savings in review based on the reduction in volume for efficient collection and culling.

You may decide that risk is too difficult or political to calculate as part of the ROI.  Or you may decide that it’s a necessary component that you must include.  Both approaches can be effective.

If you decide not to calculate a specific value for risk, you should still consider some risk analysis as part of your process, even as merely a “plus” factor to your overall analysis.  In doing this, take note of recent cases where companies have paid sanctions, had their case compromised and/or faced a backlash in the press (and potentially from shareholders).  You may not have a value for that risk, but the message will resonate with management.

If you do calculate risk, consider a conservative approach and factor in the probability of a sanction.  For example, you might decide that a severe sanction would compromise your ability to effectively defend (or prosecute) a case, and a larger case can be worth $5,000,000.  If you estimate a 10% chance of being sanctioned, you could take the resulting product ($5,000,000 x 10% = $500,000) as a basis for your risk value.  Remember that this risk amount would apply to each such case; so while the risk amount for a sanction on a smaller case might seem low (let’s say $20,000), it would be applied over a far larger number of cases.  It adds up!

Also remember that sanctions costs can exceed the entire estimated value of a case.  There have been many cases where shoddy eDiscovery processes have resulted in expensive remediation efforts — legal fees in determining what went wrong and how to fix it (and fending off motions for sanctions), repeating earlier work or being forced to use extraordinary efforts such as tape restoration.  So even a $500,000 case with eDiscovery problems could easily require more than the case value to try to “fix”.  (And don’t let anyone argue that you could always just write a check to settle the case.  Opposing counsel may have valued the case at a higher value than you, and once they realize that you are in trouble, it could be tough to negotiate a fair settlement).

Sometimes a simple model is better.  We have used extremely complex ROI models that were spot-on, but difficult to explain, and ultimately were ignored. We have also seen very simple models — “an eDiscovery solution will save us 50% in review costs, and last year review costs were $5M” — that have carried the day.  Hopefully, as you work on your ROI project, you’ll uncover the method that will best establish your case.  Until then, consider using a scenario-based approach (small case, medium case, large case), develop your facts for each one, and extrapolate the costs across the volumes that you expect to see each year.

DISCOVER MORE

Solving e-Discovery Challenges

Date:  May 25, 2010
Time:  6:00 to 8:30 PM
Place:  Capital Grille
Location: 633 N. St. Clair St.
Chicago, IL 60611

Click here to Register!

E-Discovery introduces risks, drives up costs and causes headaches for inside counsel and IT departments alike.  We invite you to join Laurus Technologies and EMC for an informative presentationwritten specifically with the General or Inside Counsel  in mind–that will simplify the process of selecting and implementing an e-discovery framework.  The audience will learn how e-Discovery:

• Empowers an organization with classification, security, retention, proper disposition and access to information
• Helps discover and manage content, and apply secure legal hold across a variety of repositories
• Provides secure authorized investigator access, defensible collection results, and chain of custody
• Automates the eDiscovery process and quickly deploys in days or weeks instead of months

You will also learn how EMC SourceOne delivers comprehensive information governance solutions and enables you to take a proactive approach to legal requests, ensuring litigation readiness.

James D. Shook, Esq., CIPP EMC eDiscovery Expert

About the Presenter:  James Shook, Esq., CIPP
Jim Shook is a recognized authority on legal e-discovery and information governance. In his role as the Director of EMC’s e-Discovery and Compliance Legal Team, Jim works with EMC’s customers to help them solve their challenges with e-Discovery, compliance, and privacy.  Prior to joining EMC, Mr. Shook spent over ten years practicing law as a litigator in one of Phoenix’s oldest law firms and as the general counsel to two technology companies

Jim is a long-time member of The Sedona Conference, a well-known legal think tank, and is an active contributor on several Sedona committees. He has served as an editor on the Electronic Discovery Reference Model (EDRM), and publishes and speaks regularly at conferences on technology’s impact on legal issues, including the publication of “Don’t Be An e-Discovery Ostrich” in late 2009.

For More information, contact Steve Susina at Laurus Technologies
630.521.8932 or ssusina@laurustech.com

To Register – Click DISCOVER - Wednesday, March 3, 2010 10am PT

The authors of “eDiscovery for Dummies” join EMC SourceOne eDiscovery – Kazeon to discuss “Making Your Company Bullet-Proof“:

• The sources of the highest costs of e-discovery
• Which overlooked issues can cost you the case
• How to prepare for a swift and strong response to litigation
• 3 R’s of e-discovery: reasonableness, readiness, and ROI
• How to reduce the charged environment between legal, HR, and IT

About the Authors:
Dr. Linda Volonino (PhD, MBA, CISSP, ACFE) is an author, lecturer, computer forensic authority, eDiscovery specialist and expert witness. More

Ian Redpath (JD, LLM) is an author, lecturer, eDiscovery expert, practicing attorney and former prosecutor. More

“Dr. Linda Volonino and Ian Redpath, Esq.,  have compiled a comprehensive text on eDiscovery which allows an eDiscovery novice to get up to speed quickly and which serves as a reference for Advanced eDiscovery professionals. The text is written for both the Legal and IT professional and  it does a great job bridging the legal/IT knowledge gap. ” says J. David Morris – EMC SourceOne eDiscovery – Kazeon.

The big news….In-House eDiscovery.  Although several vendors like EMC have been championing In-House eDiscovery for several years, this year is when In-House eDiscovery has come into its own.  Why?  Well, there are numerous reasons…but let’s say it is at the tipping point.


In-House eDiscovery is being touted by every company at LegalTech.  The question customer should ask is “With all the sanctions and fines leveled by Judges in eDiscovery cases, can your company provide the support to deploy eDiscovery, manage the complexity of  integrating into our data centers and provide process and legal best practices to support us before, during and potentially after ligation?”  If the answer to this question is anything less than an “unequivocal YES”….then customers must think again about their provider.

Tomorrow is likely to be even a more chaotic day, as the West Coasters will be arriving today.  EMC start tomorrow with a day of Super Sessions which have been the talk of the conference today….see our super session flyer below.

Download the Super Session Flyer

EMC SourceOne eDiscovery – Kazeon announces insightful super session “eDiscovery War Stories: The Dirty Truth from the eDiscovery Trenches” with noted guest Steven W. Teppler, Esq., EdelsonMcGuire, LLC and Author of “Digital Evidence LifeCycle Management – A Guide for Enterprise, Attorneys, and Technologists”, Matthew Nelson, Esq., Legal Consultant in EMC’s Global eDiscovery and Compliance practice Jeff Seymour, Deloitte eDiscovery, and moderated by James D. Shook, Esq., CIPP, recognized authority and author on legal discovery and compliance law and EMC eDiscovery expert.


“The eDiscovery War Stories panel will discuss early life-cycle as well as discovery-centric evidentiary missteps, how they might be avoided, and what challenges and opportunities await those seeking ESI authentication and admissibility in 21st Century litigation,” says Steven W. Teppler, Esq.

“The session “eDiscovery War Stories” highlights the challenges, issues and best practices the esteemed panelists have experienced throughout their careers in eDiscovery,” says J. David Morris EMC SourceOne eDiscovery – Kazeon. “Gaining valuable firsthand knowledge and guidance from the eDiscovery trenches is an opportunity not to be missed while at LegalTech New York.”

Click Here for the LegalTech Super Session Flyer

Registrations are pouring in for the Judges session.  RSVP now to reserve your seat!


EMC SourceOne eDiscovery – Kazeon announces groundbreaking super session “The Ten eDiscovery Commandments: The Judges Speak” with noted guest speakers The Honorable Andrew J. Peck and The Honorable Frank Maas at LegalTech New York on Feb 2nd, 2010 at 9:00 a.m. in room SS1 on Concourse C.  CLE credit is available for this session; however, session attendance is limited.  Send an email to reserve your seat, email or register online at http://www.kazeon.com/newsroom2/legaltech.php.

“During our first conversation, both Judges took the session topic absolutely seriously and I knew we had hit a nerve.  What litigator would miss an opportunity to learn what judge’s see as the do’s and don’ts of eDiscovery? That is certainly a competitive advantage I would want,” said Matthew Nelson, Esq., EMC eDiscovery expert. “This session will be one of a kind.”

As a sneak peak, Judge Peck will be asked to builded on his prior opinion which was well articulated in the article, “Judge Issues a “Wake-Up Call” to New York Lawyers: When It Comes to Search Terms, Play Nice and Plan Ahead” written Jennifer H. Rearden and Farrah Pepper of Gibson, Dunn & Crutcher LLP.

“Farrah Pepper and Jennifer Rearden’s aforementioned article is a great launch point for this discussion. Judge Maas and Judge Peck perspectives on eDiscovery legal developments over the last year are likely to set the tone for all future litigation,” J. David Morris, EMC eDiscovery.

Click Here for the LegalTech Super Session Flyer

Go Lions

Read the Full Press Release

“With her eDiscovery experience, we look forward to Farrah’s guidance and insight into “The Future of eDiscovery“,” says J. David Morris, EMC SourceOne eDiscovery – Kazeon. “Her global perspective on eDiscovery challenges, issues and best practices is truly unique.”

Farrah Pepper, Esq., is also speaking at LegalTech on The Future of eDiscovery
Click Here for EMC’s LegalTech Super Session Flyer

Question:

O’Neil: The short answer is that heavily regulated industries like financial services, life sciences, and health care providers typically have a significant number of legal and regulatory events requiring preservation and production of electronically stored information (ESI) on an annual basis.
The current economic downturn has created the perfect storm for many financial services organizations…reduced profits, increased regulatory scrutiny, disgruntled shareholders and a complex transaction-based business model.  Many financial services organizations are dealing with this problem by retaining all ESI within the purview of the organization.  The trend results in the “double-edged sword” of needing to retain, manage and preserve information which it had no legal or regulatory requirement to retain for an indefinite period of time and also paying the cost to review, analyze and produce the information for legal and regulatory purposes.

Life sciences companies, particularly pharmaceutical companies, need to retain information related to the product supply chain, FDA communications, clinical trials, as well as other corporate records typically retained.  Many of these organizations have operations in multiple countries, create content in multiple languages, engage in mergers and acquisitions and have complex compliance issues related to anti-trust, intellectual property, privacy issues and significant litigation requirements.

The Healthcare industry has unique challenges surrounding retention and security of patient medical records and PII, medical malpractice claims, vendor and contract management.  The lack of standards for medical records retention results in retaining patient data and records indefinitely and replication of information.  All these factors make for eDiscovery which is costly and riddled with over-production due to the operational inefficiencies created by the complex nature of the problem and the lack of defensible strategy and lack of scalable and repeatable processes to deal with the business problem.

All this said, litigation is a cost of doing business for many organizations across all segments of the public and private sectors.  Organizations should examine and understand their legal and regulatory profile and their IT infrastructure to be prepared for discovery.  Managing legal and regulatory challenges requires a holist understanding of the business problems, costs, risks and potential return on an investment in technology to drive sustainable change.

eDiscovery StraightTalk by William O’Neil, Esq.

We hope you have found this issue of eDiscovery StraightTalk insightful.  If you have questions that you would like to have answered in future issues, please submit them via email at david@kazeon.com.

• The Ten eDiscovery Commandments: The Judges Speak – The Honorable Andrew J. Peck and  The Honorable Frank Maas and moderated by Andrew M. Cohen, Esq., Vice President & General Manager of eDiscovery and Compliance Solutions and Associate General Counsel for EMC

• Authenticity and Admissibility: Enterprise ESI Management, Information Governance and the Chain of Custody challenge - David Shonka, Esq., Deputy General Counsel, FTC; Steven W. Teppler, Esq., EdelsonMcGuire, LLC and Author of “Digital Evidence LifeCycle Management – A Guide for Enterprise, Attorneys, and Technologists”; Anthony J. Diana, Esq., Mayer Brown LLP, James D. Shook, Esq., EMC eDiscovery expert with panel moderated by William D. O’Neil, Esq. Corporate Governance and Compliance Specialists and eDiscovery Expert.

• “eDiscovery for Dummies” – The New Book – Dr. Linda Volonino and Ian Redpath, Esq. co-authors and moderated by Jake Frazier, MBA, Esq., Sr. Director SourceOne eDiscovery – Kazeon and author of “Bringing eDiscovery In-House for Dummies”

• The Future of eDiscovery: Emerging Trends in Law and Technology and How it will Change Your Business – Andrew M. Cohen, Esq., Vice President & General Manager of eDiscovery and Compliance Solutions and Associate General Counsel for EMC; George Socha, Esq., Co-Creator of the EDRM Model; Greg Buckles, Independent eDiscovery Consultant; Farrah Pepper, Esq., Founder and Chairperson for Gibson, Dunn & Crutcher’s Electronic Data Discovery Initiative and Global Task Force and moderated by Jake Frazier, MBA, Esq., Sr. Director SourceOne eDiscovery – Kazeon and author of “Bringing eDiscovery In-House for Dummies” with special guest Robert D. Owen, Esq., Partner – Fulbright & Jaworski LLP

• eDiscovery War Stories: The Dirty Truth from the eDiscovery Trenches - Charles S. Biener, Esq., Vice President and Senior Litigation Counsel CIT Group Inc.; Steven W. Teppler, Esq., EdelsonMcGuire, LLC and Author of “Digital Evidence LifeCycle Management – A Guide for Enterprise, Attorneys, and Technologists” Jeff Seymour, Principal in Deloitte Financial Advisory Services LLP, Northeast leader of its Analytic & Forensic Technology practice and moderated by James D. Shook, Esq., CIPP, recognized authority and author on legal discovery and compliance law.

• Bringing eDiscovery In-House: In-sourcing, Outsourcing and eDiscovery Zen – David Shonka, Esq., Deputy General Counsel, FTC and Jake Frazier, MBA, Esq.; Greg Buckles, Independent eDiscovery Consultant; William D. O’Neil, Esq., Corporate Governance and Compliance Specialists and eDiscovery Expert and moderated by Ari Kaplan, Esq., is principal of Ari Kaplan Advisors, which provides law-related ghostwriting and industry research services, and also trains legal professionals on publishing, communications, business development and networking.  He is the author of The Opportunity Maker: Strategies for Inspiring your Legal Career Through Creative Networking and Business Development (Thomson-West, 2008).

• Internal Investigations: The Scoop on Employment Suits and Risk Management - Alitia Faccone, Esq., Partner – McCarter & English and Financial Services Litigation & eDiscovery Specialists; Heidi Maher, Esq., Employment Law Specialists and eDiscovery Expert; Gina Trimarco, Esq., Associate with McCarter & English Employment Law Specialists and eDiscovery Expert  and moderated by Matthew Nelson, Esq., Legal Consultant in EMC’s Global eDiscovery & Compliance practice.

Click here to read more!