Wednesday, November 11, 2009

The Future of Search (and the practice of law?)

Yesterday I attended the Ediscovery: Future of Search seminar sponsored and put on by Capital One. It was at their Northern Virginia headquarters and moderated by a slew of their in-house counsel.

To be honest but for the participation of Jason Baron and Ralph Losey I more than likely would have skipped this seminar. After all there are so many “ediscovery” related seminars that I find myself reacting in similar fashion that GCs do when they hear the word “ediscovery” – I shutter or roll my eyes with exhaustion. Nevertheless, this seminar was valuable and had nuggets of useful information and new perspectives. If a participant were new to the practice and process of ediscovery this seminar would have been invaluable to their education.

The highlight of course was the new video that Ralph and Jason premiered. If any of you are familiar with the “Did You Know?” videos that have been viral on the web and in many presentations over the last few years you will know what this may look like. In short, they pieced together some rather intriguing and thought provoking facts, comparisons, and predictions about where the future of data and search are going. Ralph had to manually manipulate the slides as this was a beta-version so to speak but I know that in talking to him later in the day he plans to have this as a self contained movie in short time. I believe their target release date is the next LegalTech in NY.

Back to the seminar. The range of topics and panels encompassed the spectrum of ediscovery and search. Some of the highlights included having Ellen Voorhees of the NIST explain the TREC project and some of the key findings and methodologies. Also, Judge Paul Grimm gave the lunch speech and discussed his 5 P's of effective search (Preservation, Processing, Privilege, Production, and Proportionality).

One of the more enlightening panels was the one moderated by Heather Bryden – Capital One’s ediscovery Director in which she asked questions to a panel of four law firm partners. The topic was on how to partner with IT and outside counsel to search ESI but the conversation veered into other areas of the processes and practices of law firms. Of note was that underlying sense that no one really wanted to address the realistic aspects of conducting a powerful and efficient search on data that would more than likely represent a significant reduction in time the firm would spend on review and search itself. The discussion had an academic feel to it rather than practical. I do not fault Ms. Bryden for not pushing on this and I do not necessarily fault the partners for avoiding this aspect. It was however a classic illustration of the difference between academic pursuit of change and practical pursuit.

It is an on-going debate that is thankfully growing in volume as to law firms’ incentives and interests in changing or getter better at processes at all. LegalOnramp is filled with this discussion and it is often brought up at Sedona Conference meetings too. Firms may talk to the talk but few are walking the walk.

When I mentioned this to Jason Baron in an email after the conference he reminded me of the Darwinian analogy to this. That is that the firm that looks to automate and deliver a quality process will win over the competition and the “old dinosaurs” at the firms who wish not to change will lose. Jason also pointed me to the Sedona Conference paper on Achieving Quality in the Ediscovery Process, specifically the executive summary. In part it states

“The legal profession is at a crossroads: the choice is between continuing to conduct discovery as it has “always been practiced” in a paper world — before the advent of computers, the Internet, and the exponential growth of electronically stored information (ESI) — or, alternatively, embracing new ways of thinking in today’s digital world. Cost-conscious clients and over-burdened judges are demanding that parties now undertake new approaches to solving litigation problems.

An excellent point to be sure. My problem is that I cannot wait for the glacial pace of evolution to take place. I am seeking change now and looking for others to do so. In the meantime I will continue my pursuit and also celebrate the likes of Bartlit Beck and Adams Holcomb – two firms that are not waiting to become extinct – they have already evolved.

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