Are you a Thinker, Implementer or Doer?

There are different types of people in business. Different personalities, skill sets, and experiences. Getting the right combination of these differences on any team is a challenge, particularly in the legal profession and associated disciplines. There are different schools of thought when describing the makeup of a successful team. Some speak of Implementers and Enablers, while others use the terms Thinkers and Doers, but for the purposes of this discussion let’s take a look at Thinkers, Implementers and Doers; the three components which, in my opinion, form the nucleus of the perfect Project Team.

Skills on any given team fall into at least 2 categories – Thinkers and Doers. Our implementers are the planning bridge between the Thinkers and the Doers. A critical component missing on many teams.  To create a solid Project Team, such as the type that would manage an E-Discovery matter, these three elements are crucial to success.

Thinkers are the personalities open to new concepts and ideas. Thinkers are the thought leaders, constantly trying to improve or change the way things are done. They are creative instigators who are always experimenting. A thinker’s strengths are their willingness to experiment, take risks and change. They strive to invent new processes, products or services. One weakness of some Thinkers is that they often don't understand all the nuts and bolts of what it takes to implement processes and the issues required to bring these new concepts to market, or to implement them once they are sold. On an E-Discovery Project Team these people would act as the ESI Consultant or Solution architect; designing the process for a project.

“Doers” are the folks that “Get er done”. A Doer recognizes an efficient and standardized process. They are the people with the functional knowledge, and they often do not appreciate a Thinker tinkering with a process and introducing change. Doers can do without change finding change disruptive to the existing processes, particularly if a process concept has not been tested and proven. With a Doer, something is either black or white with no shades of grey. On an E-Discovery Project Team these people would act as the Project Coordinators or Technician; the people who perform the tasks associated with any given project (i.e. acquisition, processing, and production).

These two personality types appear to be in conflict with one another and, although conflict, change and improvement can be good, to make these two personalities work, a third personality is needed - an equalizer if you would. Enter The Implementer!

The Implementer works with the thinkers to shape, refine, prototype and design and a process. The implementer then works with the Doer, the one that will perform the work, to resource and implement the process. The Implementer on our perfect Project Team is the Project Manager.

Together, Thinker’s, Implementers and Doers work together to bring a project to a successful outcome.

Does your team/organization have the right mix with the proper roles defined? What role do you play?

Database Discovery - What's all the fuss?

Today I read another great article in LTN -

Database Discovery Is Dubious, but Unavoidable. As I read the article and quotes from our friends over at FTI Consulting, the technologist in me could relate. "There are still types of evidence that lawyers prefer to ignore and hope will go away, the way e-mail discovery was ten years ago," says FTI's Rob Brunner.

The article goes on to say:

"Like the mass of ice below an iceberg's waterline, the amount of structured data is often the bulk of corporate data, but is rarely seen. According to the Data Warehousing Institute, a technology research firm, approximately 47 percent of corporate data is structured in nature, compared to 31 percent of unstructured data. (The remaining 22 percent was described as semi-structured data.)"

I too have been through many complex exercises with all manner of structured data. In some cases our team writing complex applications and processes to preserve, then search, review and produce relevant information where it is needed. Like e-mail before it, the discovery of structured data is poised to add yet another billion dollars to the eDiscovery pipeline. Or will it? Slowly the years of discovery and trial experience fights back the technologist interested in all things complex with problems to solve. Wait a second! I revisit the title of the article - Database Discovery Is Dubious, but Unavoidable. Unavoidable? How often is structured data even relevant? If relevant, what value will those data have within the context of the actual facts underlying the dispute? Before we start building fleets of technologists and consultants dedicated to handling petabytes of structured data raining from the sky, we might want to consider the percent of that 47 percent of those corporate data that is actually useful outside of making widgets. In most cases, large and small, do you really need to preserve, collect, search and review every transaction in an enterprise accounting or procurement system, as examples? Preservation can be easily handled in most cases by simply taking backups most enterprises already have in place. If not, create one. Is it the entire SharePoint system that needs to be preserved and searched? Or, is it just documents for specific custodians? Do the Metadata records associated with each document even have relevant information? Maybe you simply need to review the reports easily generated by most “structured” enterprise systems, and targeted at the specific information of interest. Before embarking upon a big expensive effort to pull information from a system, whether simple MS Access databases, or complex relational Oracle based data warehouses, doesn't it first make sense to inquire about how the witnesses use the information? After all, we call data "structured" for a reason. Considering the amount of data collected each day for litigation, it is rare when there is cost justified reason to rebuild ways to query and report information outside its intended use. The way the information would have been used during whatever conduct gave rise to the litigation/investigation. Isn't the better approach to target those "documents" lawyers will use rather than large sets of mostly useless bits of data that will never see light of day in a deposition, much less a court room? The recent trend toward having the parties sit down with their respective technology experts is encouraging. Talk to the opposition and decide jointly what approach to take. If you can’t decide, the court will decide for you and that decision will weight cost vs. benefit. Far too much time, money and intellectual capital is spent today on the unimportant.

That is not to say there are not times when complex structured workflows are necessary. We have been there - done that - but those instances in the big scheme of things are rare. Brunner says "Unfortunately, e-discovery vendors have been slow to respond to this issue" and he is right. The reason, however, is not because we have not figured it out – some of us have. The reason there are not more widespread and standardized approaches is because there is a lack of demand.  That lack of demand, I submit, is not because data is necessarily being ignored. It just does not come up during discovery.  When it does, the relevance is usually marginal and the cost of obtaining the information is not justified when weighed against the benefit. When the need does arise, hopefully a “trusted advisor” will provide the right advice and ask the right questions before you act. Database discovery today is largely avoidable.  So, maybe the more appropriate name for the article should be:  Database Discovery Is Dubious, and Sometimes Unavoidable.There may not ever be a structured data equivalent to the manual "The Simple Solution to the Rubik's Cube", but we can look first at simple solutions to what does not have to be a complex problem.

Live by The Sword. Die by the Sword!

Today, like most days, the first thing I do...umm....the second thing I do is look at my Blackberry to find Blawgletter's daily email and post. The email strategically sent so that it will arrive in my inbox in the top 10 of the reading batting order. Well done Barnett!

Today’s Blawgletter post tells us of yesterday's 9th Circuit decision in Ahanchian v. Xenon Pictures, Inc., 08-56667, slip op. at 18151-52 (9th Cir. Nov. 3, 2010). In that opnion, the Ninth Circuit took great pains to express considerable dislike for counsel's role in “goading” a district judge into “Kafkaesque” rulings.
The opinion, according to Blawgletter, held that “the district court abused its discretion in denying a request for more time and erred in granting summary judgment (and awarding almost $250,000 in attorney's fees!) against the plaintiff, who claimed to have authored skits that appeared a National Lampoon's TV show.” Of the opinion, Blawgletter observes:

“This sort of thing happens, on both sides of the docket. The offending lawyers may think that crossing the line into perfidy against the profession won't hurt them, at least not in the short term and possibly not ever. And that their client will pat them on the back for pulling out the brass knuckles. And, who knows, that maybe they'll get a reputation for hardball and thus win the fear of opponents and admiration of potential clients.
That stinks. We, lawyers and judges alike, have to police ourselves. And so Blawgletter sincerely thanks and earnestly congratulates the panel for letting the rest of us know that we have brothers at the bar who have sinned against us all.”

This commentator, as regular readers know, has seen more than his fare share of discovery battles – many reaching the litigation equivalent of nuclear warfare. In the first five years of my career alone I had the great honor to witness first hand dozens and dozens of trials, and all manner of lawyer styles. When I left public service to join my first law firm, I was surprised at the level of civility demonstrated by lawyers on both sides in those high-stakes cases. Are these lawyers being advocates for their clients, I thought? I soon learned that when you have a case, you dash to the courtroom as quickly as possible. Maybe that’s why I stayed with law firms for almost 20 years.  Discovery disputes not only get in the way, they signal weakness, and not just to the opposition. Judges (like those on the 9th Circuit) are just flat sick of aggressive discovery tactics targeted at delay and shifting focus from the facts. That is not to say that there are not genuine discovery disputes - there are. This commentator has assisted in countless disputes where one side or the other is hiding the ball. However, as Blawgletter observes, overzealous advocacy is far too common.

Unfortunately, eDiscovery is a fertile ground for these discovery disputes on a very large scale costing hundreds of thousands, sometimes millions of dollars to fight. If you find yourself in one of these battles, at least remember your ethical obligation (directly or, in my case indirectly) to be civil and professional. You never know, giving your opposition the benefit of the doubt may just bring rewards. I can tell you based on experience, it will with the Judge.  If you choose the sword, and it may well be unavoidable, make sure you’re willing to die by it.  Warfare is always a two way street.

eDiscovery - So easy a Caveman can do it, right?



I'm a Caveman, that's the way I think.



Many may remember the late Phil Hartman playing the lawyer caveman on SNL back in the 80's. The running gag was that Keyrock, a unthawed caveman who went to law school, would speak in a highly articulate and smoothly self-assured manner to a jury or an audience about how things in the modern world supposedly "frighten and confuse" him. He would then list several things that confounded him about modern life or the natural world, such as: "When I see a solar eclipse, like the one I went to last year in Hawaii, I think 'Oh no! Is the moon eating the sun?' I don't know. Because I'm a caveman -- that's the way I think." This pronouncement would seem ironic, coming from someone who had, for example, just ended a brisk cell phone conversation, or indeed attended law school. Keyrock would always finish a disquisition, however, by asserting in a burst of righteousness that nevertheless "There is one thing I DO know..." -- namely, that his client is either innocent, or that he is entitled to several million dollars or more in both compensatory and punitive damages for an injury. The jury or counsel is invariably swayed by Keyrock's argument, except every time the Judge announces the verdict in his favor, Keyrock is distracted by some other event like watching a Knicks game on his portable TV ("I'm sorry, Your Honor, I was distracted by the tiny people in this magic box"), or by a cell phone call, and the verdict has to be repeated.

This gag was particularly funny to me because I’ve had the great pleasure to see and assist many, many lawyers in action in the courtroom. There were and still are lawyers that use similar tactics with both judges and juries. And, it worked! I remember one very old lawyer in particular back in the 80’s that came off as an old country lawyer that did not know much. He was easily overwhelmed by those “Big City Lawyers” who pushed complex issue after complex issue forward. Each time he would grab the issue, dumb it down for the jury and then twist the opposition's complex explanation to suit his client’s position. I also saw many lawyers try similar tactics, only to fail miserably. They just came off as, well, stupid.

eDiscovery can be a complex undertaking rife with considerable risk, and enormous expense. It does not have to be complex, nor expensive if you have the right plan. A plan that is tried and true, defensible and easy to understand. I see too many attorneys these days that either try to be the caveman when it comes to eDiscovery, pass the task off to an associate with no experience, or just go it alone rather than bringing someone in that not only understands the process, but has been through every conceivable situation. Don’t be the caveman. eDiscovery is not so easy a caveman can do it. At least not without a standardized process and the right technology and help.