Speaker 1: Hello, welcome back to the E-Discovery Zone, live from the floor of the Exhibit Hall at ILTA 2011 in Nashville, Tennessee. We're here in the Tech Law Solutions booth. I'm Tom O'Connor, Director of the Gulf Coast Legal Technology Center in New Orleans, Louisiana. Ronnie Moran from DLA Piper.

Speaker 2: The San Diego office, and we're joined today by Deanna Blomquist, but now with Morgan Lewis. That's right. And thank you so much for coming today. You're very welcome. And we just heard what your title is.

Speaker 3: Director of E-Data Practice Support.

Speaker 2: You know, I'm struck every time I come to ILTA. We had our regional meeting a couple of years ago, and we went around the room and everybody said who they were and what their title was. And what struck me the most was that if we had had that meeting five years earlier, most of those titles simply didn't exist. But now, with the concomitant rise of electronic discovery, I mean, you've actually married something that is critical for the law firm. How is it structured at Morgan Lewis?

Speaker 3: Well, we have a practice group that is called E-Data. It is a practice group unto itself. It's a combination of lawyers and technologists. It's run by a group head. She's a lawyer. She's a partner in the firm. And we have a combination of technologists, such as myself, project managers, data analysts, and practice technology, married up with practicing lawyers who are responsible for managing the document review side of the projects that come through our practice group. And we provide those services across the firm to our traditional internal clients. And we also provide those services to external third-party clients directly where we may or may not be merits counsel for the clients who are providing discovery and electronic data services to. So it's a bit of a unique combination in that we are a practice group and not ourselves.

Speaker 2: One of the things that Tom and I have talked about before is whether or not the complexities associated with what you do in large firms like yours, like ours, how long it's going to be before the firms have to move much more to a managed service offering whereby we outsource it simply because of the rate of change. It sounds to me like you've got a sufficiently robust internal infrastructure set up. But I think for smaller and mid-sized firms, they really have no choice but a managed service

Speaker 1: option. Well, I think that's the split. What I'm seeing is that firms of the size that both of you work with have the resources. Now, in some cases, they may not want to dedicate those resources. A decision is made, we'll do it, and then you can still outsource. But certainly when you get to the 75 attorney, 50 attorney in less firms, they simply may not have the resources that are necessary to dedicate to what you do because it's a big job.

Speaker 3: It is a big job. It's a significant capital investment and there's an ongoing regular annual investment that needs to be made over and above whatever additional purchase you make in a software platform. Because that platform, because of the pace of change with the technology, there is a constant care and feeding that takes place. But around that, you have the people that need to support that technology and the people that need to deliver that technology to your client base, whether or not that's the attorneys at the firm or it's direct clients, co-counsel or whatnot. But you also have the business process that is vitally important that needs to wrap around the technology because you can have the best technology tool in the world. And if you don't have the people that operate that tool effectively and you don't have the business process and workflow in which to use that tool, what's the point?

Speaker 1: I want to come back to the tool question, but I love hearing you say that because that's one of the biggest failings I see is that there isn't a clearly identified process. So the tool is irrelevant. But are you also aware, we see the pension committee pay. I saw another $500,000 sanctioned for it yesterday. Are you aware of that, or obviously you're aware of it, but is that a conscious part of your daily work, the tightrope of we've got to get this right? Much more so, it seems to me, than other types of practice areas in the past, that in e-discovery we're under such a microscope by the judges. Do you folks discuss that?

Speaker 3: Right, absolutely. And we spend a lot of time developing what we would consider best practices to really support the methodology that we use to deliver the services, whatever that combination of services is, because it is so vitally important to make sure that you've got a defensible process. I think back in the day, lawyers could have made an issue of the process that was used for discovery. Did you really look at every single piece of paper that was in that paper's box? But nobody really made an issue of it. Everybody just kind of said, oh, you know, we probably use about the same amount. Now, how we go through discovery and what we do with e-discovery, how we process the data, sometimes is just as central to the case as the merits of the case itself. Or the people on either side make that part of the central issue, and we need to invest, and that's part of the investment if you're going to deliver this type of service internally. That's part of the investment that you have to make to be able to say, this is how we did what we did, and that's what all of the third-party service providers are doing. So it's incumbent upon us to be able to do that same thing and provide that same level.

Speaker 1: You mentioned third-party service providers. What about your clients? Are they starting to pull some of that in-house? Do you see that trend, or is that just more talked about than experienced?

Speaker 3: I definitely have seen that as a trend, and what I think is going to be interesting, and I predict over time, is that we'll actually see the ball shifting back the other way. I think that a few years ago, our clients were pulling things internally because their law firms were ill-prepared to be responsive in the ways that they needed us to be responsive to, and we're starting to catch up. A lot of firms are really caught up in it in a nice way, and because there is the component of risk, because there is the component of compliance, and there is the component of defensible, reasonable, validatable, if that's a word, process, and how that's an integral part of the case itself, I think for those clients who are working with firms that are at a certain level, we'll start maybe getting comfortable with turning that back over to their law firm providers, because let's face it, if you're representing a pharmaceutical company, their core competency is not in electronic discovery. Their core competency is in manufacturing pharmaceuticals, and why would they want to continue to make an investment along the level that we're just discussing if they can work with a trusted partner who can provide that level of service along with and integrate it with the legal services they're getting from their lawyers. So that's my prediction. We'll have to watch this tape in a couple of years to see if it comes true.

Speaker 2: Well, you know, going back to defensibility, before we didn't have an audit trail of what we were doing in the paper world. I mean, we did what we did. But now, it's very important to have some sort of an audit trail so that whether the audit trail is the best practice or the workflow that you apply consistently that you can rely on, or it is actually, for each case, putting together a law or a defenseability binder and really, really an important aspect with the other portion of it being that the clients don't necessarily want to pay for the amount of auditing and sort of defensive work that you need to do, unless and until something bad happens. So that's a huge challenge. Are you finding an ability to do budgeting that, in fact, comes in fairly close, or is it as much of a challenge for you as it is for us?

Speaker 3: You know, I think it's probably as much of a challenge for everyone in the type of role that we're in, really trying to understand what it is you're estimating first and foremost and how spot on or not are the estimates that you make going in and how often do we see cases where you are anticipating, oh, we'll have 10 gigabytes of data and then all of a sudden you have 25 or 30 or 50 and, oh, by the way, we need to add a few more custodians and things like that. I think that is a big challenge for everyone. It continues to be really understanding what the data might contain. So without being able to actually have a look at the data before you get it, how do you break down and anticipate what kinds of file types you're going to have and how much massaging that data is going to need? So I think it is a big challenge. We certainly try to do our best at consulting with our case teams at the beginning of a case to understand as much about the nuances of the case and even things like what's at issue in the case and what do you think you need to be looking at or not might drive how you estimate the services that are needed in the case. So we try as much as we can to be as accurate as we can and then have ongoing iterative conversation as the case progresses to make sure that everybody understands what has changed from the original estimate so that we can continue to not have any surprises or sticker shock aha moments at the end of a case when it invariably goes like that.

Speaker 1: Do you really avoid those though? Likewise, as a consultant, that's one of my biggest challenges.

Speaker 3: Can I plead the fifth?

Speaker 1: Yeah. Like you said, we start off with X amount of data. Sorry, I've already taken the fifth. Ah, right, right. You can't have him do it. That's one of the biggest challenges we have. The clients told a per gigabyte price. I'm oversimplifying, of course, and they see that we've collected 500 gigabytes. So they do the math in their mind and then when that 500 gigabytes becomes 1.4 terabytes after you've expanded it, they don't hit the refresh button. They seem locked into those early numbers. So that's a real problem.

Speaker 3: It is, but I would say that that's just as much our responsibility as consultants providing service to our clients to make sure that we are taking accountability for, number one, the original estimate as loose or tight as it might be, but then as an ongoing part of project management, going back and continually refreshing, and dare I say project management because that's an interesting discussion in and all on its own, but as a part of regular project management, you should be going back continuously and saying here's the update on the project, not just from a scope perspective and not just from a schedule perspective, but from a cost perspective as well. And ongoing. Right. So, yes, it is a challenge, and we have the responsibility for that because oftentimes our clients, whether it's an internal case team or it's our external client, or it's their insurance company. Insurance companies pay for a lot of this stuff, too. I can't assume that they know what they're supposed to know, so I have to take the approach that we know what we're supposed to know and we need to provide that education.

Speaker 2: We've got just about a minute, and so we're going to give you extraordinary powers to change anything that you would change in the current world of e-discovery. We've now given you that power. What are you going to do with it?

Speaker 3: Oh, wow. Am I limited to one thing?

Speaker 1: One thing. One thing. You have unlimited power, but only to do one thing.

Speaker 3: One thing. I would love it if all of our clients, whether they're external direct clients or internal case team clients, would engage our services at the very outset of the case when they're first framing up strategy and give us an opportunity to collaborate as partners to help figure out what the best strategy and what the best application of technology and process can be in that case so that we can truly bring the power of this industry.

Speaker 2: Well, this is truly an alleluia amen. You said everything I wanted.

Speaker 4: We were wrong.

Speaker 1: We were wrong. Even unlimited power wouldn't extend that far. Our very special guest, Deanna Bluquist. Morgan Lewis. Did I get that right?

Speaker 4: You got it.

Speaker 1: Yes, you got it. Live from the ILCA 2011 exhibit floor in the Tech Law Solutions booth. This is the eDiscovery Zone saying thank you for stopping by, and we'll be back later with some more special guests. Special thank you also to Deanna for coming by and putting up with our hijinks.

Speaker 3: Thank you. Hi, Mom.