the duty of technology competence: catalyst webinar slides

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OCTOBER WEBINAR

And What It Means for E-DiscoveryThe Duty of Technology Competence

Robert Ambrogi, Esq. Niki Nelson Mark Noel, Esq.

Panel

Mark specializes in helping clients use technology-assisted review, advanced analytics, and custom workflows to handle complex and

large-scale litigations. He also works with Catalyst’s research and development group on new litigation technology tools. Before joining

Catalyst, Mark was an intellectual property litigator with Latham & Watkins LLP, co-founder of an e-discovery software startup, and a

research scientist at Dartmouth College’s Interactive Media Laboratory.

Mark Noel

Bob is a practicing lawyer in Massachusetts and is the former editor-in-chief of The National Law Journal, Lawyers USA and Massachusetts

Lawyers Weekly. A fellow of the College of Law Practice Management, he writes the award-winning blog LawSites and co-hosts the legal-

affairs podcast Lawyer2Lawyer. He is a regular contributor to the ABA Journal and is vice chair of the editorial board of the ABA’s Law

Practice magazine.

Robert Ambrogi

Speakers

Managing Director, Professional Services, Catalyst

Director of Communications, Catalyst

One of our most experienced project managers, Niki works with larger corporate clients, providing ongoing management and oversight

services and bringing a broad background in litigation technology. Before joining Catalyst, Niki was a senior project manager for Stratify.

Niki got her start in the litigation support industry working for PricewaterhouseCoopers as a certified forensic examiner, managing many

large-scale forensic investigations. She has a B.S. in computer science from Ohio University.

Niki Nelson Senior Consultant, Professional Services, Catalyst

Legal background

ABA rule and California opinion

Discussion among speakers

What is “competence” anyway?

What should your team look like?

How should you build your team?

Potential pitfalls

Key take-aways

Questions / open discussion

Today’s Agenda

End of Session 1

Maintaining Competence ABA Model Rule 1.1, Comment 8

“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

ABA Model Rule 1.1, Comment 8Maintaining Competence

16 States Have Adopted Comment 8▪ Arizona, effective Jan. 1, 2015. ▪ Arkansas, effective June 26, 2014. ▪ Connecticut, effective Jan. 1, 2014. ▪ Delaware, effective March 1, 2013. ▪ Idaho, effective July 1, 2014. ▪ Illinois, effective Jan. 1, 2016. ▪ Kansas, effective March 1, 2014. ▪ Massachusetts, effective July 1, 2015 ▪ Minnesota, effective April, 2015. ▪ New Mexico, effective Dec. 31, 2013. ▪ New York, adopted March 28, 2015 ▪ North Carolina, approved July 25, 2014. ▪ Ohio, effective April 1, 2015. ▪ Pennsylvania, effective Nov. 21, 2013. ▪ West Virginia, effective Jan. 1, 2015. ▪ Wyoming, effective Oct. 6, 2014.

Adoption Pending in Two Additional States

The Oklahoma Bar Association has petitioned the Supreme Court to approve adoption of the rule.

Oklahoma

On Feb. 28, 2015, the Virginia State Bar Council voted to adopt the rule change. The change is pending review and approval by the Virginia Supreme Court.

Virginia

Recognized by Ethics Opinion in at Least One State

New Hampshire Bar Association, Advisory Opinion #2012-13/4 (concerning cloud computing)

“Competent lawyers must have a basic understanding of the technologies they use. Furthermore, as technology, the regulatory framework, and privacy laws keep changing, lawyers should keep abreast of these changes.”

Either be competent in e-discovery or associate with others who are CA Proposed Formal Opinion Interim No. 11-0004

“Not every litigated case involves e-discovery. Yet, in today’s technological world, almost every litigation matter potentially does. The chances are significant that a party or a witness has used email or other electronic communications, stores information digitally, and/or has other forms of ESI related to the dispute.”

CA Formal Opinion No. 2015-193Either be competent in e-discovery or associate with others who are

CA Formal Opinion No. 2015-193“[C]ompetent” handling of e-discovery has many dimensions, depending upon the complexity of e-discovery in a particular case.

The ethical duty of competence requires an attorney to assess at the outset of each case what electronic discovery issues might arise during the litigation, including the likelihood that e-discovery will or should be sought by either side.

If e-discovery will probably be sought, the duty of competence requires an attorney to assess his or her own e-discovery skills and resources as part of the attorney’s duty to provide the client with competent representation.

Attorney Handling E-Discovery Should Be Able To:1. Initially assess e-discovery needs and issues, if any.

2. Implement/cause to implement appropriate ESI preservation procedures. (This is a slight change from the proposed opinion, which said: ”Implement/cause to implement appropriate preservation procedures for electronically stored information (ESI).”)

3. Analyze and understand a client’s ESI systems and storage.

4. Advise the client on available options for collection and preservation of ESI.

5. Identify custodians of potentially relevant ESI. (The word “potentially” was not in the proposed opinion.)

6. Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan.

7. Perform data searches.

8. Collect responsive ESI in a manner that preserves the integrity of that ESI.

9. Produce responsive non-privileged ESI in a recognized and appropriate manner. (The word “non-privileged” was not in the proposed opinion.)

Can meet the duty through association with outside attorney, outside vendor, subordinate attorney or even the client.

Attorney must maintain overall responsibility for and remain engaged in the work of the expert.

Attorney must educate everyone involved about: The legal issues in the case.

The factual matters impacting discovery, including witnesses and key evidentiary issues.

The obligations around discovery imposed by the law or the court.

Any risks associated with the e-discovery tasks at hand.

Duty to Supervise

“[A]n attorney has a duty to assert the attorney-client privilege to protect confidential communications between the attorney and client.”

“In civil discovery, the attorney-client privilege will protect confidential communications between the attorney and client in cases of inadvertent disclosure only if the attorney and client act reasonably to protect that privilege.

“A lack of reasonable care to protect against disclosing privileged and protected information when producing ESI can be deemed a waiver of the attorney-client privilege.”

Duty of Confidentiality

People

Product

Process

A Catch-22: you need skill in order to recognize your lack of skillThe Dunning-Kruger Effect

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Actual Ability

Self-

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lity

A Catch-22: you need skill in order to recognize your lack of skillThe Dunning-Kruger Effect

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25%

50%

75%

100%

0% 25% 50% 75% 100%

Actual Ability

Self-

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Competence

Expertise

Mastery

“The 1% Problem”

“The 1% Problem”

Manual, linear review

Traditional Document Review Techniques

Keyword Searching

The 1st Problem with Linear Review

Disagreement among reviewers

Maura R Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and Efficient Than Exhaustive and Manual Review, XVII Rich. J.L. & Tech. 11 (2011), http://jolt.richmond.edu/v1713/articlee11.pdf; Ellen M. Voorhees, Variations in Relevance Judgments and the Measurement of Retrieval Effectiveness, 36 Info. Processing & Mgmt 697 (2000)

“How complete was my catch?”

IR Metrics - Recall

“How pure was my catch?”

IR Metrics - Precision

The 2nd Problem with Linear ReviewInconsistent, often poor results

Recall

Precision

Recall The % relevant documents from the Collection Set that are in the Review Set

Precision The % documents in the Review Set that are truly relevant (the balance of the Review Set is junk)

The 1st Problem with Keyword Search

(((master settlement agreement OR msa) AND NOT (medical savings account OR metropolitan standard area)) OR s. 1415 OR (ets AND NOT educational testing service) OR (liggett AND NOT sharon a. liggett) OR atco OR lorillard OR (pmi AND NOT presidential management intern) OR pm usa OR rjr OR (b&w AND NOT photo*) OR phillip morris OR batco OR ftc test method OR star scientific OR vector group OR joe camel OR (marlboro AND NOT upper marlboro)) AND NOT (tobacco* OR cigarette* OR smoking OR tar OR nicotine OR smokeless OR synar amendment OR philip morris OR r.j. reynolds OR ("brown and williamson") OR("brown & williamson") OR bat industries OR liggett group)

Jason R. Baron, Through A Lawyer’s Lens: Measuring Performance in Conducting Large Scale Searches Against Heterogeneous Data Sets in Satisfaction of Litigation Requirements, University of Pennsylvania Workshop, (October 26, 2006)

It can become overly complex

The 2nd Problem with Keyword SearchGenerally poor results

Recall

Precision

Recall The % relevant documents from the Collection Set that are in the Review Set

Precision The % documents in the Review Set that are truly relevant (the balance of the Review Set is junk)

The 2nd Problem with Keyword SearchGenerally poor results

Attorneys worked with experienced paralegals to develop search terms. Upon finishing, they estimated that they had retrieved at least three quarters of all relevant documents.

Blair & Maron, An Evaluation of Retrieval Effectiveness for a Full-Text Document-Retrieval System (1985).

20%75%

What they actually retrieved:

The Advantage of TARFind more relevant documents with less junk

Recall

Precision

Recall The % relevant documents from the Collection Set that are in the Review Set

Precision The % documents in the Review Set that are truly relevant (the balance of the Review Set is junk)

Discussion

The Duty of Technology Competence and What It Means for E-Discovery

Mark NoelRobert Ambrogi Niki Nelson

You may use the chat feature at any time to ask questions

Questions & Answers

mnoel@catalystsecure.com

bambrogi@catalystsecure.com

You may use the chat feature at any time to ask questions

Mark Noel

Robert Ambrogi

nnelson@catalystsecure.com

Niki Nelson

Solving the Transparency Issues in Technology Assisted Review

Thursday, November 12, 2015 | 1 p.m. Eastern

John Tredennick Mark Noel Tom Gricks

COMING SOON!