Archive for June, 2012

Judges are getting tough about cooperation.

eDiscovery case law is being driven by a handful of federal judges like Magistrate Judge John M. Facciola with the U.S. District Court in Washington, D.C. Recently, Facciola told litigants in the matter Taydon v. Greyhound Lines, Inc., there is “a new sheriff in town–not Gary Cooper, but me.”

Gary Cooper in High Noon

“Drop your 40 page discovery motions and reach for the sky.”

Facciola is talking tough, but he wants lawyers to play nice. In law school, lawyers are trained to crush their opposition. But in eDiscovery, the updated Rules of Civil Procedure and emerging case law actually make it not only possible to make discovery a cooperative process, but mandate cooperation between parties. In Taydon, Facciola is fed up with parties treating eDiscovery like a war of attrition, and is ordering them to come up with a fair and effective plan for managing the process.

After declaring himself sherrif, Facciola ordered, “The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation.”

Discovery rules and pretrial procedures are designed to remove the risk of surprises at trial and provide for more a fair contest “by requiring disclosure of all relevant information.” However, discovery of all possible relevant information in our electronic world is not always possible. If attorneys want to make judges like Facciola happy, they should familiarize themselves with the Sedona Conference’s Cooperation Proclamation. The document promotes a less adversarial approach to discovery that’s not only practical, but has been endorsed by judges across the country.

In this order, Facciola rejected requests for sanctions that parties had requested, despite legitimate sounding claims that the “defendant failed to respond to discovery requests in a timely fashion and generally engaged in ‘delay tactics.’ Instead, he ordered a teleconference status conference, “every two weeks in which I will ask the parties about their progress (or lack thereof) and try to resolve any disagreements they have.”

Regular phone calls to craft a cooperative eDiscovery response plan is a sensible solution to an intractable problem. Technology can help opposing counsel coordinate efforts, but judges clearly expect more communication and forthright sharing of information. It seems clear from the tone of Facciola’s order that in the future, he and other judges might be less patient and more prone to imposing fines on parties that fail to cooperate.


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Nextpoint is not a private jet kind of company. That didn’t stop a boutique private jet firm from trying to pitch us on the value of buying time on one, promising to cut, “hourly rates, outrageous fuel surcharges, expiring prepaid hours and annoying peak day restrictions.”


This seems like a terrible pitch. The service being offered is a private jet, which assumes the passengers are too busy and too important to fly commercial. Yet, the pitch is about how much less expensive their service is–selling a high-value, high-priced service by talking price. The whole point of a high-value service is the valuable service it provides. If someone is going to consider travel costs purely based on cost, they will never pay for a private plane. That person will always fly commercial. The same is true for litigation services. Many service providers these days are jumping on the cloud computing train and promising the lowest possible price. But does their provided solution solve your problem?

Where’s The Beef?

Corporations already spend a lot of money on technology. But if the technology doesn’t work to efficiently solve their problem, it’s value proposition is busted. In litigation, if they don’t have the support they need, they can’t get their work done. They will spend their money on a solution that does work, even if it is more expensive–they get VALUE for their dollars spent.

Forbes recently discussed the right way to measure return on investment in cloud services. The article was based on a broader study by the Garner Group on cloud computing. The bottom line is that cloud technology is not the answer to all IT problems because it is a less expensive alternative to in-house IT. Cloud technology solves your litigation support problems, and that is where the value lies. Cost savings is an additional benefit, but it is not the primary concern.

The problem corporate legal departments face is complexity– managing legal holds and preservation demand letters, avoiding spoliation claims, dealing with recurring litigation, intellectual property and trademark protection, meeting regulatory requirements, enforcing document retention policies, and the volume of data involved in managing these issues. Cost is on the list of concerns, but only once those other requirements are satisfied. No corporate counsel is going to tell their boss, “well, we lost a $10 million dollar judgement for losing evidence, but look, we saved $1 million is hosting costs!”

Know the Value.

As more eDiscovery, litigation, and trial technology claims to be cloud-based, prices for hosting and data processing services will continue to fall. But the question for those providers is whether their services take advantage of the cloud platform to provide more powerful solutions. By 2020, the average case will involve 1.6 terabytes of data. Can your cloud software scale? Can your technology archive social media and other content in a forensically sound review platform? Does it provide end-to-end litigation service? Those are the questions that matter. Price per gigabyte is obviously a concern, but only if the technical questions around managing your case have been satisfied first. As the Forbes piece puts it, “Price is determined by what the market will bear. Performance is tracked based on any number of metrics that are related to what you want to get out of the service.”

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Cost is still the most challenging problem in eDiscovery. The volume and complexity of discoverable evidence in litigation is such that law firms are struggling to manage it in-house. As we’ve discussed before, the battle to control litigation support IT costs is being fought on two fronts – one, the overall firm technology infrastructure, and second, to provide case-specific support.

The first problem is simply that firms are investing in expensive, difficult to support and maintain software and hardware to manage eDiscovery. Law firm IT departments should focus on the core functions supporting the firm-wide infrastructure, like email and time and billing. Instead, in order to manage eDiscovery, new litigation software and hardware are bought, which becomes a cost drag as cases are drawn out or during dry periods between major engagements.

The second part of this problem is that these firms don’t always know how to segregate and separate the costs for individual clients to pass on the specific costs for any given matter. The result is that most firms either do not bill for IT costs on a given matter, or they lump costs together and charge all clients a higher, less competitive rate.

Cloud-based eDiscovery beats the problem on both fronts. First, law firms pay only for the data storage and services they provide to a customer, rather than for a server farm, software infrastructure, and in-house support team. In the cloud, there is no software to maintain, and storage costs are only incurred as needed. Additionally, there is no reason matter-specific costs cannot be passed through — just like other legal fees — to the specific clients.

The screenshot above shows the dashboard view for a fictional Nextpoint Discovery Cloud user. As you can see, individual matters are tracked with simple metrics for the volumes of data being stored, like number of documents, data imports and exports, activity, and users. Billing these functions becomes a simple and transparent function.

Corporate clients increasingly understand the IT costs associated with eDiscovery. There is an understanding that law firms should not have to build, implement and support the servers, litigation software, and user support to command large volumes of electronic data in a litigation. Many have responded to the challenge by taking eDiscovery servicing and hosting functions in-house. Instead, law firms that can demonstrate effective use of cloud platforms and technology not only control their own costs, but make it easy to pass these costs on to clients at a reasonable rate.

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Nextpoint "Expert Witness" Post

Nextpoint’s Expert Witness is a new feature here on the Frank blog, offering insights from lawyers, technologists, law enforcement, entrepreneurs, and other interesting people influencing our industry and world. Check back regularly for thought-provoking and in-depth conversations.

Lawyer Tom Mighell is probably best known for his blog inter-alia, which he describes as a collection of his “favorite technology topics, as well as the latest in law practice management tips, tricks and resources – among other things.” More recently, the iPad has become the focus of his technology obsession, which has spawned the site iPad 4 Lawyers, and his books iPad in One Hour for Lawyers and  iPad Apps in One Hour for Lawyers, published by the American Bar Association. Readers may also be familiar with the Mighell Marker Newsletter, which he helped publish for 10 years, or the The Kennedy-Mighell Report, a legal technology podcast from the Legal Talk Network. Tom’s current day job is Senior Consultant with Contoural, Inc., where he deals with records management, electronic discovery, and litigation readiness issues.

Nextpoint is clearly on board with the iPad, since all of our applications are optimized for the device. But we wanted to talk to Tom about why tech-savvy lawyers are falling in love with the iPad. He’s also picked up a few tips to help lawyers and others get the most out of their devices.

iPad in One Hour

Nextpoint: Why did you write your books iPad in One Hour for Lawyers and iPad Apps in One Hour for Lawyers?

Tom Mighell: Two reasons. I wanted to provide lawyers with a way to get up to speed quick on using an iPad. iPad in One Hour for Lawyers provides the basics that lawyers need to know to be able to get their iPad set up and start using it, all in a little more than an hour. The second book I wrote as a response to the fact that there are hundreds of thousands of apps available in Apple’s App Store. There are somewhere between 100,000 and 200,000 apps made especially for the iPad, and busy lawyers don’t have time to sort through all of them and figure out which apps are best. iPad Apps in One Hour for Lawyers provides a curated collection of the best apps for lawyers in different categories – Productivity, Legal-Specific, News and Reading, Reference and Research, Travel, and Utilities.

The iPad is commonly thought of as device for casual users. Why are you excited about it is a tool to make lawyers more productive in practicing the law?

I’ll challenge the first sentence of your question, and modify it to, “the iPad was once thought of as a device for casual users.”  There are probably some out there who still look on the iPad only for playing Angry Birds, surfing the web, or reading a book, but many lawyers are now recognizing the value of the iPad as a productivity tool. In fact, I myself was skeptical at first that the iPad could help me in my work – but the apps that are currently available for iPad users can help lawyers do a lot of the things they already do with laptop or desktop computers: take notes, draft and revise documents, and review caselaw or other documents they deal with in cases or transactional matters. (more…)

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Browser WarsRemember the browser wars? This week, Slate published a nice chart of the ongoing browser wars, which is a lot more interesting and volatile than it ever was when Microsoft and Netscape first squared off back in 1995. The short version is that Internet Explorer now represents less than 20 percent of Internet users, Firefox is quickly losing market share, and Chrome now has 40 percent of all users. You can see the detailed, month-by-month breakdown here.

Even more dramatic shifts continue to take place in the PC market, which is completely moribund. Sales of Windows-based PCs grew a pitiful 4 percent last year, a 14 percent decline in the growth rate from last year before. That’s the slowest growth rate since 2001. And as noted here before, the iPad has been outselling the total number of PCs sold.

These are facts that have nothing to do with the relative merits of the various platforms available. There are perfectly valid reasons to use PCs, just as Mac aficionados have good reasons to love their Macs. But the days when one technology platform, Wintel, had 98 percent market share, are over. This is the business landscape all legal technologists have to consider in making buying decisions. This ongoing market fragmentation is daunting, but the solution is simple.

The only viable technology solution is one that works in every browser and is completely platform independent. Technology should not be tied to any one browser, any computer type, or any operating system. Unfortunately, true platform independence is still rare in legal technology. A number of eDiscovery vendors still release technology specific to one browser or platform.  For example, some software is being retrofitted to act like it is not platform specific, often using technology like Microsoft Silverlight. This is not platform independence, it’s called kludge.

The simple solution is to ask one question about any software. Does it work on every computer or device? If the answer is no, it makes no sense in the world we live in today.

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In the abstract, the Internet and cloud applications are vaporous and hard to pin down. Data is not always stored in one location and does not follow a predefined route from one location to another. For lawyers, this makes cloud applications seem like a potential legal liability. If you don’t know where your data is stored or where it is, how do you know what laws it might be subject to?Geolocation in Cloud Computing

This week, the Law.com article Why Companies Should Know Where in the Cloud Data Are Stored, is the latest in a long string of legal articles on this issue. The article notes that if cloud data is stored internationally, it is subject to the privacy laws of these international jurisdictions. But while the question of data crossing international borders is an interesting hypothetical question and makes for lively discussion, it is largely irrelevant.

Geographic Control Is Yours

Email backup providers, data hosting services, cloud applications, and other Internet services certainly take advantage of multiple data centers for their services, but crossing international borders is not common. The Internet architecture is such that storing data internationally doesn’t make economic or practical sense. For example, Nextpoint relies on Amazon Web Services for secure data storage across multiple geographic Regions. Each Region offers independent data center services in two US Regions: East (Northern Virginia), and the West (Northern California). Separately, AWS has three international Regions, the EU (Ireland), Asia Pacific (Singapore) and Asia Pacific (Tokyo), but data from the US Regions do not cross over to international regions unless the customer wants it to.

With AWS, users select the acceptable geographic jurisdictions for data storage. Data is not replicated between Regions unless proactively done so by the customer, allowing customers to know their data is always stored domestically. In this way, Nextpoint has complete control over where customer data is stored. All Nextpoint servers are in the United States and in case of failure, automated processes move customer data traffic away from the affected area to another domestic data center.

If you’re concerned about where your data is stored, make sure to ask any cloud provider if they store data in non-U.S. locations. Geolocation is an interesting subject to think about, but as a practical question for business users, it is not a pressing or immediate concern.

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Many of our customers want to upload large data sets themselves, but are often intimidated by the intense volume of metadata, varieties of file type, and the general unexpected that’s innate in any sizable litigation database. If you are one of these users, you may not know how to use a load file… or perhaps even what one is. We’re here to explain how you can create one yourself, and show you how a well-made load file can be a lifesaver.

Basically, a load file tells the Cloud processors what documents to look for, where they are located, and allows for the import of all metadata. The column headers should reflect each piece of coding information and each of the rows represent an individual document. Build your load file in Excel, then ‘save as’ a .csv file. Rename your .csv load file to nextpoint_load_file.csv. You can download a sample .csv load file from the support site link at the bottom of this page. You can delete any headers you don’t need and add as many as you’d like.

Looking at the screen capture below, you can see the basic properties of a load file.

Image_file is the name of the document,

Image_dir is the location of the files on your computer.

…and author, recipient, and document_date represents coding information that needs to be imported.


Setting Document Boundaries

If your documents are comprised of single page images and you need to set document boundaries, include fields for image_range_start and image_range_end in order to specify a range of pages for each document (see image below, no need to include the file extension).

Setting Bates Numbers

If these pages also correspond with the desired bates number, you should include columns for bates_start and bates_end so that the pages will be coded with the correct bates numbers at the outset. It’s much easier to apply bates numbers during upload, if you have them (see image below).


Providing Accurate Field Names

If you already have a load file but the headers don’t conform to the field names in Nextpoint, you can; 1) change the names in the header row to match the fields in Nextpoint, or, 2) create a ‘.map file’. A map file is a cross reference file. It tells the Cloud processors to take the data from a particular column and to populate a specific field in Nextpoint, regardless of the header name.

***Download a sample fields.map file from the bottom of this page. Follow the format and type as many lines as you need.

You can create this file in a simple text editor like TextPad, Notepad, or TextEdit, and it should be saved with the name “fields.map” in the same folder where your load file resides. (see images below for an example of a load file and its appropriate map file for import).


Map File


You can also review this content on our support site under the topic “Building a Load File”, and “Building a Map File

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