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CounselQuest Appoints Lloyd Wilks as Managing Director
by CounselQuest on 

Canadian-based Legal Process Outsourcer (LPO) CounselQuest Inc. (CQ) announces that Lloyd Wilks, LL.B. will become its new Managing Director of its Canadian operations.


Today the Board of Directors of CQ confirmed the appointment of Lloyd Wilks as the company’s new Managing Director responsible for Canadian operations.  Joe Milstone and Rubsun Ho of Cognition LLP (www.cognitionllp.com) both sit on CQ’s Board and have worked with CQ from its inception, collaborating with a strong network of experienced review lawyers and a combination of corporate counsel and law firm clients, to provide cost efficient and professional document review services.  Joe Milstone shared: “The voluminous amounts of data and documents involved in eDiscovery, competition review and a number of corporate/transactional matters, combined with the push for more efficient document review alternatives makes working with CQ and Lloyd a highly competitive offering.” Jon Veale, the Managing Director for the executive legal search firm Vision Legal Recruitment (www.visionlegal.ca) and a CQ board member, remarked: “With Lloyd’s leadership and the exponential growth in the document review sector, CQ is strategically positioned to capture a growing amount of market share.”


Lloyd brings over 15 years of eDiscovery industry subject matter experience and expertise.  Most recently, Lloyd was a Director for PwC Canada’s (PricewaterhouseCoopers) Forensic and eDiscovery team. Lloyd has worked on a number of litigation, investigation, and competition files in Canada, the United States, the United Kingdom, and the Caribbean.  Lloyd brings his professionalism, risk management skills and a strong passion for success to CQ’s well-established business operations. As part of the senior leadership team, Morgan Borins, JD, formerly of Miller Thomson LLP will continue in his role as Director of Business Operations.


CQ’s philosophy is based upon applying quality assurance standards while adopting innovative approaches for each client’s request in order to better manage costs.


For more information about CounselQuest, please contact either Lloyd Wilks (lwilks@counselquest.ca) at  647-624-7400 or Morgan Borins (morgan@counselquest.ca).
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Court imposes punitive sanctions for discovery violations
by CounselQuest on 

U.S. District Judge David Herndon of the Southern District of Illinois recently released an opinion issuing sanctions for various discovery abuses. The case of In re Pradaxa Products Liability Litigation dealt with discovery violations tied to the defendants' duty to preserve relevant evidence and adopt an adequate litigation hold.

The plaintiffs sought sanctions for alleged discovery violations regarding the defendants' failure to identify potentially relevant custodians, improper preservation of evidence, and untimely disclosure and production of materials.

The sanctions imposed by the court arose from the fact that the defendants took a narrow and incremental approach to their legal holds. The court found that the defendants: 1) failed to put a key custodian on legal hold; 2) failed to preserve and avoid the auto deletion of text messages on employees' mobile phones; 3) limited their legal hold to an inadequate number of employees; and 4) did not give full and proper access to the vendor hired for the responsible collection and production of relevant data. These actions and omissions violated the court's previous case management orders and were held to have been done in bad faith.

The court imposed a $931,500 fine on the defendants in order to encourage them to respect the court and comply with its orders. To read the full decision, please click here.

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Humans still the most vital component of e-discovery projects
by CounselQuest on 

The Electronic Discovery Institute together with Oracle Corp. recently completed the first phase of a joint study on technology-assisted review ("TAR"). The research project's design was to assess and evaluate the performance of predictive coding technologies in the completion of a document review process as compared to the results of an attorney-based document review.


The study used data from a real 2007 Department of Justice litigation matter where Oracle had reviewed approximately 1.7 million documents using an outside counsel team comprised of both law firm associates and contract attorneys.

Participants in the study consisted of a variety of the leading predictive coding vendors and service providers. All participants received the entire set of review materials and were required to evaluate the documents for responsiveness, privilege identification, and relevancy.

Performance outcomes of the TAR process were compared to the original review and ranked based on project cost, responsiveness, privilege identification, hot document identification, and cost per document.

Based on the analysis, two key takeaways from the research project were that software is only as good as its operators since human contribution is the most significant element, and that higher cost does not necessarily correlate with greater quality.

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Avoiding Human Linear Review is Risky Business
by CounselQuest on 

Apropos of our comment of November 30, 2011, which discusses the continuing need for human document reviewers regardless of the claims made by some technology proponents, there was a provocative posting this morning in the eDiscovery Daily Blog, which posed the question, “When is it OK to Produce without Linear Review?"

 

The article apparently was inspired by the concern that a lawyer could be caught in a dilemma if confronted with too much data to review within a reasonable timeframe and budget.  The author uses an imaginary review set of 1.2 million “potentially responsive pages,” the number remaining after 88% of the original data was weeded out in technology-assisted first level review.  He calculates the cost of a human linear review of the documents at roughly $1.5 million.  Pointing to the use of a clawback agreement to claw back any inadvertently produced privileged files, he asks, “Why not just produce all this without having humans review it?”

 

That idea was swiftly rebuffed by a fellow e-discovery expert in a comment following the blog post.  The crux of the rebuttal is that “you should NEVER EVER produce to the other side without a review for attorney-client privilege, work product protection, or other protections.”  What are these "other protections"? Things like trade secrets or other confidential information that require a protective order with “layers of protection”, such as "ATTORNEYS EYES ONLY", "TO BE FILED UNDER SEAL ONLY", etc. 

 

In addition, the "case study" used was derided as unrealistic because, practically speaking, there should never be 1.2 million documents left after a first pass review.  If so, you might be using a poorly-constructed search or faulty analytic search tool, so you should “do another pass at the 1.2 million pages or use another search tool or limit the scope of the search in the first place.”

 

Let’s hear it for the humans.

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Seek and Ye Shall (Hopefully) Find
by CounselQuest on 

For an interesting webinar, try to find an archived recording of the event broadcast today entitled eDiscovery Case Law Update: What the Courts Expect of Your Search and Culling Efforts (sponsored by IE Discovery, Inc.).

 

Hosts Marc Fulkert of Jones Day (Columbus, OH) and Stacy O’Neil Jackson, Corporate Counsel of IE Discovery, Inc., led a pleasant and informative presentation focusing on Keyword Searching, taking us from the evolution of searching through to current considerations and leaving us with some thoughts for the future.

 

The webinar was less a case law update than an advisory on what you need to do to comply with your minimum obligations when you find yourself as counsel on a case involving e-discovery.  The search component of the process is given great importance because it’s where the rubber hits the road.  You have your data collection; you have your technology.  Now it’s time to find the evidence.  The message was loud and clear – don’t shirk when it comes to your search approach; it not only will have a huge impact on the success and budget of your review project but, if not planned and executed properly, could get you into hot (or, worse, hot and expensive) water. 

 

With respect to the craft of formulating keyword searches, our hosts confirmed that there is no perfect keyword search and, in any event, “perfection” is not the test; it is “reasonableness”.  This standard was applied recently by a U.S. federal judge who held that an “adequate search” was one that “could…have been expected to produce the information requested.”

 

So what will satisfy a judge that your search should have found what was requested?  To be somewhat confident that your search methodology is defensible, your keyword search terms, at the very least, need to be carefully considered, refined through an iterative process and thoroughly documented.  Best practices also call for good project management methodologies and metrics to monitor progress and measure search and review performance.  Finally, the process needs to documented clearly to show what was done and not done. 

 

We heard a few good anecdotes about some less than stellar search formulations – a couple involving hundreds of keywords – and Mr. Fulkert suggested that about 25 keywords are all that are necessary to create a search reasonably designed to get to the desired information. 

 

Given that the traditionally hostile climate between opposing litigation counsel has proven to be an impediment to coordinated and efficient e-discovery efforts, I chuckled when our hosts touted the 2008 Sedona Conference Cooperation Proclamation – which essentially says to counsel, “please cooperate on e-discovery issues” – and advised that it has been judicially endorsed numerous times.

 

We also were fed some good statistics, including that there has been an increase in the number of cases in which sanctions have been levied (at least in the U.S.) for a party’s or lawyer’s failures to comply with e-discovery obligations.  I imagine there’s a correlation between that and the rising judicial expectation that litigation practitioners will understand and comply with their e-discovery obligations.  As judges become more informed and sophisticated with respect to e-discovery and better understand the processes, resources and effort involved it, it becomes much harder for litigants to get away with any shenanigans.

 

Once the appropriate search formulation is determined, it is just a matter of executing the search.  (This all presumes an appropriate search and collection of data.  In this regard, the “Search Party” is the first big concern.  Your choice of leader of the search expedition is crucial, and you should consider appointing a lawyer for the task  given that she will know the issues, the kinds of data you are looking for and the right questions to ask.  The risks of asking a non-lawyer to collect data – an incomplete search, re-collection of documents, further expense and, heaven forbid, sanctions for employing a deficient process – is not wise without a backup strategy.) 

                 

So, what do the courts want?  Mr. Fulkert and Ms. O’Neil Jackson concluded with the following:

 

    • Consult the custodians – talk to individual record keepers; determine your universe of data
    • Test your search terms iteratively
    • Sample your results
    • Tailor your searches
    • Keep all search data (and tabulate where appropriate) and be prepared to show your results and defend your efforts

 

As for the future?  It’s all about the Cloud, Social Media and Mobile Apps.  Topics for another day.

 

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E-Discovery: Machines on the Rise
by CounselQuest on 

Concept searching is a hot topic although the human touch is still deemed vital

 

How appropriate that as I was about to sit down in my living room on Sunday to write this, my daughter flicked on Terminator: Salvation, a very loud movie pitting puny humans in their final showdown with evil machines, which have everything going for them – size, speed, strength, intelligence and cool weapons – except Christian Bale, who, of course, defeats the machines and saves all of humanity.

 

As we know, life often imitates art.  Technological advances in the real world have had a huge impact on humans; this is no more evident than in the e-discovery environment, where the exploding volume of ESI can be addressed only with technology.  The latest – or at least the hottest – innovation in ESI review is “concept searching”, a technology that has inspired some providers to proclaim the impending obsolescence of human document reviewers. 

 

Concept searching, which uses an algorithm-based search to identify and organize documents, can perform functions that resemble abstract reasoning.  Similar documents can be identified and segregated based on concepts even where there might not be common key words or phrases among all of them.  The process begins with a legal professional, usually a senior lawyer, who will specify a concept and documents, or sections of documents, describing that concept.  A search of the entire collection will be run to gather documents based on their similarity to those in the control set.  This process is repeated (fifty times would not be unusual) until the software is sufficiently “trained” to identify similar records to the desired degree of accuracy.  The technology can be utilized throughout the document review process to find and group potentially responsive and privileged documents and for quality control purposes. 

 

Each provider of concept searching technology offers its own distinctive user interface including unique descriptors.  You’ll hear “predictive coding”, “intelligent categorization” and “intelligent coding”, among others.  Thus, depending on the platform, as soon as documents are identified as possibly similar to the control set they might be assigned a score reflecting their likelihood of similarity to the control set or they may be organized in order of degree of similarity.  When no more documents in the collection meet the standards of the control set, the legal team can review and code a smaller collection of responsive documents than would be identified using traditional Boolean search methodology.  The nonresponsive documents are sampled to confirm that they are in fact nonresponsive.  If the sample passes the statistical test for responsiveness (i.e., within a desired margin of error and confidence level), the review can be deemed complete (at least In theory).  

 

At KPMG’s e-discovery conference last month in Toronto, which featured speakers Craig Ball, an American lawyer and leading e-discovery commentator, and Duncan Fraser of Canada’s Justice Department, KPMG highlighted several of its latest technology offerings for the legal profession, including for remote data management and forensic investigations and its concept searching platform for e-discovery.  With interesting and informative presentations by KPMG’s Dominic Jaar, Robert Castonguy, Danny Garwood, David N. Sharpe and Karine St. Pierre, the message was not about whether we need technology in the legal profession to help us preserve, store and manage all this data – that’s a given – it was that the technology we need is here now and can effectively combat many of the costs and inconvenience associated with ESI. 

 

The presentations inspired some good conversation about the extent to which the use of technology will reduce the need for human linear review in e-discovery and whether it could ever replace human reviewers altogether.  The latter idea didn’t seem to resonate, at least not in regard to using software to make judgment calls.  An intelligent use of e-discovery technology still is envisioned as one that will help reduce costs and increase efficiencies and productivity by augmenting the existing process, including the human review aspect, not completely supplanting it.  There was strong support for the use of concept searching together with other traditional culling methods as a means to identify and group the potentially responsive documents in a first pass review, but there also was a presumption that a sizable collection would need reviewing and coding by lawyers.

 

The cautious nature of lawyers could be one reason that there hasn’t been a sweeping embrace of the notion that software can perform a function identical to the nuanced and abstract reasoning necessary to interpret often cryptic information, particularly when it comes to the all-important production of documentary evidence (described by Justice Campbell of the Sedona Canada Working Group as “the cornerstone of litigation”).  This is not head-in-the-sand myopia, as most lawyers would concur that the use of software initially to reduce large volumes of data not only is unavoidable but is welcome and has become an accepted component of e-discovery.  It’s just that there is a limit to the welcome.  In a profession that tends to find, or create, perfectionists because clients (and judges, law partners and opposing counsel) demand perfection, the thought of delegating ultimate judgment to a computer program just does not feel right. 

 

Other barriers to early adoption include the technology itself, not because it’s hard to use, but because service providers do not offer a single, widely-used and fungible product.  As a result, the software is not familiar to users, there are significant differences between certain products and there is no universal concept searching syntax.  Concept searching technology also can be significantly more expensive than traditional search software and its defensibility in court has yet to be put to the test.  

 

Finally, the reluctance to replace human reviewers with computer-assisted concept searching and coding might just come down to the need for as much human accountability as possible and the comfort in knowing the legal team has, within reason, laid their eyes on everything that might be relevant.  If a record is overlooked, or a privileged document inadvertently disclosed, the finger can point straight at the reviewers, not so easy a task if technology is the culprit.

 

While studies favorably comparing the use of concept searching technology to human reviewers are quite interesting, the most compelling conclusion that can be drawn from them is not that we should now do away with human linear review, it is that lawyers should continue to work intelligently with traditional search methodologies and concept searching to segregate the most concentrated volume of responsive documents and utilize efficient, cost-effective and experienced reviewers who follow a regimented process.

 

The business and legal communities would love an easy answer – a silver bullet – to the vexing problem of escalating e-discovery costs.  The solution, however, should not include acting so aggressively in the pursuit of dramatic cost savings and faster processing as to become comfortable in accepting as the norm the exclusion of many potentially relevant documents from a given collection.   Humans may overlook as many or more documents as the software – although it will be interesting to see future studies of human linear review projects that utilize a combination of computer review tools and rigorous project management techniques – but they theoretically have looked at and considered the ones they ultimately miss, a mistake that can be remedied to a great degree with a disciplined review process, focused reviewers and strict quality control.

 

At the end of the day, when it comes to e-discovery, containing costs and simplifying review and production projects is a function of advance planning, which includes establishing user-friendly, documented and judicially defensible ESI and paper record preservation and retention policies, identification and collection strategies and review and production processes.  Concept searching is a valuable tool that can help reduce a client’s e-discovery pain if employed as part of such an integrated e-discovery plan.

                                                                                   
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Welcome to CounselQuest
by CounselQuest on 
  

Welcome to CounselQuest, the document review company with a difference!

 

You might ask: What can be so different about a document review firm?  Well, take a look!

 

After an intensive, year-long study of the e-discovery process, including best practices and trends here, south of the border and across the pond, we have developed a proprietary, Lean Six Sigma-derived document review methodology – “CQ³” – through which we can significantly enhance our reviewers’ productivity (i.e., their efficiency and accuracy) while motivating them to stay focused and meet review targets and deadlines.

 

It’s not magic, just the result of scrutinizing and re-thinking the document review process, on the one hand, and, on the other, analyzing and addressing the crucial “rubber hits the road” point where electronically-culled data must be reviewed and evaluated by lawyers within strict time constraints.

 

The rapidly increasing volumes of ESI, continual enhancements to search and culling technologies and serious concerns about escalating discovery costs demand a new approach to this necessary and crucial element of the litigation and due diligence processes – the CounselQuest approach.  CQ³that's the CounselQuest difference!  

 

So, please; spend a few minutes on our website, contact us for more information or post an opinion or observation below.  We look forward to hearing from you.

The Management

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