February 09, 2009
Thoughts From LegalTech 2009
Back from a very busy week in New York. The buzz from the show centered around several themes this year:
Naturally, discussions about the economy and the overall health of the legal market prevailed. With the shuttering or RIF'ing of a number of law firms and service providers alike, many believe we're just seeing the first wave. Vocal concerns over where to place ESI tells me there is a definite Flight to Quality as corporations, law firms, and independent consultants want to know the service provider will be around throughout the life of their legal matters, which typically span several years or more. So check out your eDiscovery service providers' financial strength and definitely check out their facilities firsthand before you place your data in their hands. You might be surprised.
Interest in the right balance of sourcing eDiscovery work to control cost was a major theme as well. Many companies are looking into which tasks, processes, and supporting technologies they can reasonably in-source and maintain defensibility, while realizing they can't do everything at once. Thus a preferred approach is in-sourcing what you can, but partnering with a leading services provider to fill the gaps and provide a defensible end-to-end process from the internal notification/preservation/collection all the way through review and production. Having worked with a number of companies in this regard, the dynamics are changing. Having an experienced and trusted partner can make a huge difference as I've seen companies try to go it alone, only to end up spending a lot more in the long run that could have been avoided.
New FRE Rule 502 - I have yet to see much, if any, impact from its enactment. First, it's too soon for having any meaningful corpus of case decisions as guidance. Second, I wouldn't want to be a party in the position of having to rely upon Rule 502 as my main privilege defense. I attended a panel discussion of eDiscovery issues and trends, and heard Ron Hedges state a very similar perspective. Thus I feel it's going to be "business as usual" with respect to privilege reviews and related tasks. No one wants to be the test case.
Great quote from one of the panels: "We'll never see a well-run discovery process mentioned in the case law." All too true, as we tend to learn from the opposite in case decisions.
While eDiscovery topics dominated the show, online social networking was also big, as sessions on Web 2.0, Twitter, Facebook and more pulled in a good number of attendees and generated some high Twitter activity. The eDiscovery Town Hall was an interesting new experiment, as video questions were gathered before the event in Web 2.0/YouTube fashion. Some good questions were asked and it was interesting to get the panelists' perspectives on topics such as the globalization of eDiscovery.
As with last year, the Bloggers Breakfast was a nice opportunity to meet fellow bloggers and put some faces with URLs. While I'm certainly not against capitalism by any means, I would caution several of the publicists, PR firms, and marketing agents not to swamp or overwhelm bloggers in your zest to use them in your overall marketing push (emphasis on the "push"). A brief introduction and being mindful of not monopolizing our time will go a long way.
As always, the ILTA-sponsored sessions on Tuesday were good fodder for discussion among in-house professionals and their outside providers. As any ILTA member will say, it's ILTA's fantastic ability to bring professionals together that is the true value of being a member.
U.S. Magistrate Judge Facciola had a very thought-provoking, engaging, and I daresay, entertaining keynote. His focus was on competence and collaboration, with the money quote: "Watching an incompetent lawyer is like watching a clumsy ballerina." He shared his frustration and a certain amount of self-restraint from wanting to jump over the bench and do a cross-examination himself over concern that a party has adequate representation in his court. He further shared his concern that the certifications and standards of competence for attorneys may need to be revisited. It was therefore no surprise when he cited the Sedona Cooperation Proclamation, and said what we already knew - that judges don't particularly like to deal with discovery disputes, particularly those when one or both sides are not well-informed.
Overall, it was another good show, and a great place to network and "feel the vibes" of the market. 2009 will continue to be a year of challenge and some changes in the legal market. I'm reminded that the Chinese word for "crisis" consists of the characters for "danger" and "opportunity", leading to the proverb: "In crisis, there is danger - and opportunity."