Crane on Law by James Crane

In Benton v. Dlorah, Inc. (D. Kan. Oct. 30, 2007), the plaintiff claimed gender discrimination by her university employer. It became known during discovery that the plaintiff had used her personal computer to communicate with students and deleted hundreds of relevant emails. Although the communication and destruction of emails occurred in good faith and prior to contemplation of a lawsuit, the university sought production of the hard drive to recover the deleted emails.

The Benton court concluded that plaintiff should produce the hard drive for a forensic inspection limited to the deleted email. The court reasoned that even though the emails were deleted, they were still in her possession, custody, or control, and retrievable. The court ordered plaintiff to pay $1000 in sanctions to reimburse the university, which had to seek production twice, but denied additional sanctions based on spoliation because there was likely no duty to preserve the emails at the time they were deleted.

In Benton, there was one hard drive at issue. For the corporation, the problem of deleted emails on office desktops, personal pcs, and various rogue formats like online storage and flash drives, is multiplied by the thousands. Altep has been very active in assisting our corporate partners to account for their universe of data by providing a variety of services including document retention program consulting and forensic collections and examinations.

The American Corporate Counsel Association (ACCA) conducted a survey of corporate law departments to measure the satisfaction level with their outside counsel. It may not come as a big surprise, but nearly 70% of in-house attorneys are dissatisfied with the outside law firms they use, and a third of all corporations fired at least one of their law firms.

Without diving too deep into the statistics, I can tell you that the biggest issue is the budget. First, whether it’s a litigation support partner, like Altep, or the outside law firm, or the in-house lawyer, we all serve the same master: the Budget. Corporate counsel has the daunting task of providing the best legal representation to the corporation at the best value. When outside law firms aren’t mindful of the costs of executing a legal matter, there is bound to be conflict.

Altep has built its reputation as a staunch advocate for corporate law departments when it comes to cost efficient execution of litigation. In fact, our next-generation online review platform, Inspicio(TM), was developed from the ground-up with cost savings in mind. We believed that corporations were paying too much for processing of their digital data. There was no need to process every document to images (TIFF or PDF) when only a fraction of the document population needs to be produced. With Inspicio(TM), documents can be reviewed in their native format, which costs about 75% less for processing. Then, the corporation only pays for the small fraction of production documents to be processed to image. This innovation is literally saving our partners hundreds of thousands of dollars in processing costs.

Another feature of Inspicio(TM) was inspired by numerous requests from our corporate law department partners. It has a real-time dashboard that monitors progress across cases, custodians, and client databases. A majority of corporate lawyers responsible for billing reconciliation have experienced the unpleasant surprise of a review project that has gotten out of hand, resulting in a bill that is many times what they expected. Using Inspicio(TM), corporations now have control over their documents and control over each matter. At any time, corporate counsel can monitor progress down to an individual reviewer, and get accurate, up-to-the-minute reports on time spent, documents reviewed and work remaining for any case or project in the corporation’s litigation database.

These are only a couple of ways that Altep has developed cost-efficient innovations for the execution of corporate defense litigation. Contact me to discuss additional techniques involving work product archiving, theme-based pre-discovery preparation, re-purposing productions, and more.

Imagine assembling the top paralegal professionals in the country in the same venue at one time. That’s just what happened in Tampa from October 17 to October 21 at the annual National Federation of Paralegal Associations conference. (I don’t know if their respective law departments and firms shut down while they were away).

Altep was happy to be a part of the event and we met many impressive people. In fact, one of the best parts of the conference was the lively exchange regarding our new online review platform Inspicio. We were definitely excited to share some of the groundbreaking features in our next-generation tool!

Its not a surprise that they would be so interested in Inspicio, because we built it from the ground up incorporating all of the suggestions of our client-partner’s attorney and paralegal reviewers. Probably the number one complaint about the existing review platforms was that they would get “bogged down” when you try to load more than 10 gbs. In the digital age, that just didn’t cut it.

So we built Inspicio with scaleability in mind. Inspicio just won’t get bogged down. Its designed to handle the massive volumes of digital data that is now commonplace in most lawsuits. I don’t mean to brag, but the viewing interface is attractive and user-friendly, it has real-time case and custodian tracking, it has an internal instant messaging system, and is about 100% customizable.

That’s enough for now, I sound like a commercial! It is so great to see the excitement among the paralegals for a review product that’s time has truly come. We had so many requests for webinar presentations that we’re booked through the first half of November! That doesn’t mean we can’t make time for you though. If you’d like to know more about this next-generation review tool, you can go to www.inspicioreview.com. If you’d like a live demonstration over the web, contact me and we’ll get you set up for a webinar!!

A controversy has been brewing for a few years regarding the whereabouts of Morgan Stanley’s pre-9/11 emails. In representations to arbitrators and regulators, between October 2001 and March 2005, Morgan Stanley maintained that all pre-9/11 emails were lost forever when the firm’s email servers were destroyed in the terrorist attacks on the World Trade Center. Consequently, Morgan Stanley alleged they were unable to produce any pre-9/11 emails during discovery to any claimants or regulators.

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The Association of Corporate Counsel 2007 Survey has been released and they accurately reflect what in-house counsel have been routinely telling me. The increased compliance requirements following Sarbanes-Oxley and increasing budget pressures have caused more resources to be directed to in-house attorneys and away from outside counsel.

Some of the general conclusions from the survey include:

In-house counsel are adding more rules and more formalities to their relationship with outside counsel.

One-fourth of in-house counsel is increasing competition among outside counsel, including competitive bidding and discounts for early payments.

A growing number of in-house counsel are utilizing web-based systems to directly collaborate with and monitor outside counsel.

Law departments continue to reduce the number of firms they use based on better rates and better work.

In-house counsel are increasingly using budgets to evaluate performance and set expectations.

Personally, I'm excited to see that corporate law departments are being more proactive and requiring more accountability from outside counsel. For several years, Altep has worked with in-house counsel to make litigation and the associated document management process more transparent and understandable, and it's good to see others getting on board.

The DOJ filed a consent decree in the U.S. District Court for the Southern District of Ohio to settle a longstanding lawsuit against American Electric Power (AEP). The suit which included eight states as plaintiffs ( New York, New Jersey, Massachusetts, Vermont, Connecticut, New Hampshire, Maryland, and Rhode Island) settled when AEP agreed to install pollution control equipment at an estimated cost of $4.6 billion, pay $15 million, and spend $60 million on remediation projects. Many citizen groups also joined the settlement as plaintiffs, including the Sierra Club, National Wildlife Federation, and the Natural Resources Defense Council. You can see a copy of the consent decree at http://www.usdoj.gov/enrd/Consent_Decrees.html.

The SEC announced on Tuesday that they have completed the first stage of their review of the executive compensation at 350 public companies. In its October 9, 2007 press release, the SEC informed us that their staff instructed the companies that they should “provide more focused disclosure of how and why they made specific executive compensation decisions.” When the SEC invests time and resources so heavily into an issue, smart companies will take note. Justifying executive compensation was among the core issues regarding the options backdating storm, and it appears it will continue to be an emphasis for SEC compliance for the coming years. If you’re not busy on October 12, 2007, SEC Chairman Cox will present the keynote address at the Center for Plain Language’s Symposium on Plain Language: Public Policy and Good Business. The comments to the companies and the companies’ responses will be posted on the SEC’s EDGAR system around the end of November for all those interested. You can find the SEC staff report regarding the first stage of the review at http://www.sec.gov/divisions/corpfin/guidance/execcompdisclosure.htm.

The Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce, recently released their 2007 State Liability Systems Ranking Study. The population of respondents was comprised of 1599 in-house general counsel and senior litigators at companies with annual revenues of at least $100 million. The results were quite interesting. Here are the top 5 and bottom 5 states that have a “fair and reasonable litigation environment:” (drumroll…)

Do you agree? If you want to see where your state ranks, you can check out the full survey results at www.instituteforlegalreform.com.

When I’m out visiting with my friends in corporate law departments, we may talk about recipes, fishing, or the weather…but the conversation always comes back to “how can we do things better to save money?” It's one of my favorite topics because at Altep, we've been creating methodologies and processes that eliminate waste and save money for more than a decade.

However, as good as we are, there are even more ways that corporate law departments can serve the budget. One intriguing possibility is the availability of free and searchable case law databases. The latest good example and useful resource that I’ve come across is altlaw.org.

The altlaw site promises to “make the common law a bit more common.” It is a joint project by the law schools at Columbia University and the University of Colorado. It provides opinions from the last decade or so from the federal appellate and Supreme Courts. The coverage included 173,378 cases at the time of this writing.

It is not as convenient or flashy as the pay-per-case sites (you know who I’m talking about), but the price is friendly ($0.00) and it does allow you to search by case name and perform full text searches. They even want to offer West Reporter Citations in the future. Take a look for yourself and let me know what you think.

One of the challenges of properly executing e-discovery is the loose use of language used by lawyers, IT personnel, and other persons. As an example, the amended Federal Rules of Civil Procedure was careful to use the phrase Electronically Stored Information in order to account for videos, audios, photos, cds, dvds, flash drives, memory in copy machines, network data, etc. 

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