The Common Scold

The Common Scold is named after a cause of action that originated in Pilgrim days, when meddlesome, argumentative, opinionated women who displeased the Puritan elders were punished by a brisk dunk in the local pond. Believe it or not, the tort lasted until 1972, when State v. Palendrano, 120 N.J. Super. 336, 293 A.2d 747 (N.J.Super.L., Jul 13, 1972) pretty much put it to rest. But the thought of those feisty women, not afraid of a little cold water, has always cheered me up and inspired me. I first used the moniker as the name of my humor column at the University of San Francisco School of Law many moons ago, and revive it now for this blawg!

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ConsultIt's always incredibly helpful to attend LegalTech -- although admittedly overwhelming -- because I get to listen to and talk to a lot of people in two solid days of meetings, meals, and panels. And in so doing, one of the benefits is that trends just percolate up.

I just wrote a mini-essay in LTN (p5, July) about a huge trend that I've noticed this spring -- that EDD vendors who are changing from a "reactive" approach to e-discovery in favor of a "consulting" approach. (That plus a definite power shift to GCs in determining technology tools.)

Kroll is the latest EDD vendor to announce a new consulting arm -- Ontrack Consulting -- and I'm sure there will be more. Clearly, were at "EDD 2.0" -- or maybe 3.0 -- as the focus moves to "litigation readiness" rather than reacting to a particular lawsuit.

Says Kroll:

This new team of consultants will help corporations and outside counsel navigate through technical intricacies and legal standards associated with the accessibility of electronically stored information and other technical issues relating to electronic discovery. Ultimately, this service will help attorneys establish best practices for data management and for all stages of the electronic discovery process to reduce the burden and cost associated with discovery.

The December 2006 amendments to the Federal Rules of Civil Procedure underscore the important role of electronically stored information in modern litigation, while requiring a heightened level of discovery readiness. Attorneys are now faced with new legally mandated responsibilities to understand the technical realities of ESI. Leveraging Kroll Ontrack’s ESI expertise and the experience of the company’s consultants, attorneys can be confident they are prepared to manage e-discovery and effectively advocate on behalf of the parties they represent.

Other hot topics that seem to be bubbling:

* EDD issues over processing foreign language files. Ditto for other international processing issues. Expect more coverage on these in future LTN issues.

* Anticipation of the Socha/Gelbmann 2007 report, which will go to subscribers next week, (we'll have a sneak preview here on the blog), -- and the pair will present their summary in the August issue of LTN.

* An increasing discomfort, largely fueled by the huge costs of EDD, by buyers of EDD who simply don't have the experience, knowledge or tools  to properly vet vendors. Many don't know enough to even how to ID the apples and oranges and then figure out how they are different. This is not a good thing.

* The EDD marketplace just keeps growing and growing and growing -- and differentiating products becomes increasingly difficult. As I wrote in the July LTN, I predict three things:

a) the Big Three will continue to buy anything that moves.
b) there will be a LOT of roadkill.
c) niche products may thrive.

And of course -- there's always the chance that we'll get another absolutely unpredictable "disruptor" -- technology or events that completely change the e-discovery landscape.

Thanks to all the vendors who so graciously spent time talking to me and to news editor Claire Duffett over the last 48 hours. My head is pounding as I process it all, but we so appreciate you insight, and your time.

June 22, 2007 in Law Firm Management, Technology | Permalink


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