Over here in New York, one of the technology trends that can no longer be ignored is the rise and rise of the Apple platform. In one of the conference sessions at this year's LegalTech, the sentiment from the floor was that the Apple iPad was now the device of choice for attorneys of all ages. Elsewhere, we could see the growing interest in the iPhone as an alternative to the digital recorder. And we encountered ediscovery vendors who are now developing a niche line of business dealing with data collections from Apple Macs.

Echoing these sentiments, Forrester Research is now predicting that "Windows dominance is at an end." To back up this prediction, Forrester has released figures showing that the number of companies in North America and Europe issuing Apple Macs running OSX increased from 30% in 2009 to 46% in 2011. Other key facts include...

* in a survey of 10,000 employees worldwide, 8% were using Macs, 9% were using iPads and 11% were using iPhones

* 30% of businesses support Macs, 27% support iPads and 37% support iPhones

* Apple users are likely to be younger or higher up the corporate ladder than Windows users: 41% of Apple users are directors, 43% earn more than $150,000 a year and 28% were between 18 and 24.

by Tom O’Connor and Gavin W Manes of Avansic

Introduction
In 2011, a strong movement established momentum and gave rise to a great deal of discussion about altering the Federal Rules on e-discovery to directly address preservation. The debate on the topic has been lively and heated at times. The strongest proponents for the changes have been corporate counsels, best exemplified by Thomas Hill, associate general counsel at General Electric, who testified before Congress last fall that the current Federal Rules of Civil Procedure (FRCP) result in companies wasting billions of dollars on unnecessary document preservation and production. He indicated that part of the problem is that companies must preserve documents before a lawsuit is filed, therefore they often preserve even when no lawsuit is ever filed. Hill cited occasions where GE spent more in preservation than the money at stake in the litigation.

The proposed changes are still being reviewed by the Committee on Rules and Practice and Procedure of the Judicial Conference of the United States and will likely be a hot issue at LegalTech in New York next week. But do the Federal Rules really need to change regarding preservation? We feel strongly that we do not need to change the rules, and so do other several other prominent observers (see Opinions from the Field below).

The crux of the preservation problem does not lie in the inadequacy of the FRCP guidelines but rather in corporations being unprepared for litigation, particularly for the rigors of e-discovery. Fixing the major issues in data preservation will require true preparedness, with companies being proactive and forward-thinking in storing their data with an eye towards future e-discovery needs. Although rule changes might provide further impetus or incentive for corporations to move in a proactive direction, what is really needed is a fundamental attitude shift in the legal and corporate worldview to adhere to the rules as they are today.
 
Refuting the Three Proposed Approaches To the Rule Change
A set of three proposed alternative changes to the rules was circulated at several Rules Advisory Committee and Subcommittee meetings at Duke University in Spring 2011 and Dallas in September 2011. The Category 1 approach provides a higher degree of specificity including a fairly detailed explanation of the duty to preserve evidence (Rule 26.1(a)) and details possible triggers (26.1(b)), the scope of the duty to preserve (26.1(c)), and sanctions (Rule 37). Category 2 proposes a more general preservation rule, while Category 3 only addresses sanctions as a tool for influencing behavior. The three categories are discussed in more detail below.

Category 1: Specific Rule
This draft includes many different examples of how difficult it is to draft a single rule to cover all the possible problems. For example, this draft contains a long list of trigger events for preservation as well as a list of types of ESI that would be “presumptively excluded” from the preservation duty, including deleted data residing on hard drives and physically damaged media.

Why Category 1 won’t work: The problem with this category is that IT would be presented with an enormous checklist of possible options to wade through for each case that came across their desk. A significant knowledge gap would continue to exist between IT and legal as to whether trigger events have happened, so preservation still may not be performed in a timely and comprehensive manner.  

Category 2: General Rule
The Category 2 proposal also suggests lists for alternative approaches but is less detailed. For example, one proposal for preservation occurs when a “reasonable person” would expect to be a party to an action. However, since no definition of reasonableness is provided, the onus would be on IT to define and defend what is reasonable.

Why Category 2 won’t work: IT is not counsel – they are not generally in a position to know what reasonable is, or what a judge will think is reasonable.  

Category 3: Sanctions-Based Rule
The Category 3 approach differs from the first two in that it focuses only on sanctions and would act like more of a “back-end” rule. In other words, the rule would not contain any specific directives about preservation, rather it would provide direction in the areas of when and how sanctions might be applied. Absent special circumstances, the court would be prohibited from imposing any of the sanctions listed in Rule 37(b)(2) or from giving an adverse-inference instruction. This option would seem to shift the responsibility more from IT to the Court, although it would still require IT to defend their actions.

Why Category 3 won’t work: It focuses only on sanctions and not solutions. Providing a roadmap for preservation is very important to moving forward, and merely indicating the punishment for failure to follow rules does not accomplish that goal. For a more detailed discussion of these three categories, see 1st September 2011 post Jumping the Gun? Three Approaches to Drafting New Federal Discovery Rules by Matt Nelson on the E-Discovery 2.0 blog. http://www.clearwellsystems.com/e-discovery-blog/2011/09/01/jumping-the-gun-three-approaches-to-drafting-new-federal-discovery-rules/

Reviewing Opinions from the Leaders in the Field
Other eDiscovery experts agree that the rules do not need to be changed. Former U.S. Magistrate Judge Ron Hedges, who is now an eDiscovery special master and Georgetown Law Center adjunct professor, has been very vocal with the opinion that the rules have not been in effect long enough to measure their true impact. And noted e-discovery commentator Ralph Losey feels that the answer lies in more education about e-discovery, a view shared by attorney and consultant Michael Arkfeld, who maintains that 95% of all attorneys don’t know enough about what to do with e-discovery.

Corporate Preparedness
So if rule changes aren’t necessary or if new rules would not lower the cost of e-discovery, then how can costs be reduced? Corporations being proactive and affirmative in preparing for e-discovery may well be the answer.

There are a number of components to preparedness, but it is critical to understand that every single decision made by IT has an impact on the cost of e-discovery. For example, if an IT administrator only allows employees to store their email on the main server instead of in .pst files on their local computers, then only the server’s stored data would be required during e-discovery. This not only dramatically reduces the number of data stores that will need to be preserved, collected and processed; it also reduces the potential for spoliation and collecting duplicate documents.

Other IT decisions that affect e-discovery include encryption settings, asset tracking, disposition of old computers, and backup procedures and formats. Asset tracking is one of the easiest ways to reduce litigation costs (and help with general business practice).  Often, many hours are spent trying to track down the computers of target custodians. Knowing where that information resides can save time and corporate productivity. Backup procedures are another area where traditional IT “best practices” may actually hurt during litigation: keeping years of electronic information may mean having to go back through all of that data. Of course, this is a sensitive issue that requires input from legal, IT, and management since there may be litigation holds to adhere to, as well as solid business reasons to keep such information.

Another large step towards reducing litigation’s impact is to prevent the creation of large data sets in the first place. It is difficult to imagine the amount of data that any given user has created since digital waste is not as tangible as paper. Prevention can be accomplished by cataloging current documents and their storage locations, investigating and revising overbroad backup procedures, and identifying the types of electronic information that exist (i.e., emails, Word documents, CAD drawings, etc). When considered in relation to potential e-discovery requests, this thorough evaluation of a company’s electronic footprint will reveal areas of potential data reduction.  

A balance can be achieved between the efficiency of a company’s IT department and the cost of e-discovery only when addressed before the onset of litigation. It is critical to include IT personnel, corporate management and legal counsel in all of these discussions. Some companies have found success by having the legal department use a portion of its own budget for any IT changes that would benefit the company during litigation. Analysis should take into consideration the particular challenges of each company’s industry, the documents they create, and the lawsuits they are most likely to face.

Conclusion
Although the issue of rule changes related to data preservation has been widely discussed and changes have even been proposed, there is no clear path forward. Opinions on the subject vary widely and we propose that even if the rules change, the issues of preservation cost, burden, and sanctions may not be resolved. The only clear way to reduce the probability of sanctions is for companies to work within their IT departments, management, and with their counsel to be careful and thorough with their e-discovery preparations far in advance of a lawsuit.

Performing an E-Discovery Readiness Assessment (http://bit.ly/A24XrB) helps to determine the level of litigation preparedness, and the results of that assessment provide a business with simple and affordable practices to maintain control over their documents.

The ED Readiness Assessment takes into consideration the potential litigation challenges of each company’s specific industry and the documents they create. Companies can see a direct cost benefit by implementing the recommendations of the assessment. This e-discovery preparedness eventually saves both time and money should litigation arise.

The rules may or not change but the preservation obligation exists today, whether companies choose to acknowledge or not. Only a comprehensive examination of their ESI content can prepare a corporation for litigation, regardless of what the rules say. Changing the rules won’t save litigants money; only knowledge and readiness will do that.

About the authors...

Gavin W. Manes PhD, President & CEO, Avansic
Gavin Manes is a nationally recognized expert in e-discovery and digital forensics who is currently the President and CEO of Avansic, a Tulsa-based company that provides ESI processing, e-discovery, and digital forensics services to law firms and companies across the nation. Having published over 50 papers on computer security and digital forensics, Manes holds a doctorate in computer science from the University of Tulsa. He has also briefed the White House, Department of the Interior, the National Security Council, and the Pentagon on computer security and forensics issues. gavin.manes@avansic.com

Tom O’Connor, Director of Professional Services, Avansic
A nationally known lawyer and eDiscovery expert, Tom O’Connor is Director of Professional Services at Avansic. Based in New Orleans, Tom is best known for his work in e-discovery, which includes assisting firms and corporate counsel in matters of retention policies, litigation holds, and document exchange protocols. He has worked on a number of high-profile cases including asbestos litigation, the Keating case, California class actions against crematoriums, tobacco litigation on behalf of the Attorney General of Texas, and various phases of the Enron and BP litigation. tom.oconnor@avansic.com

You'll be able to see this product at LegalTech New York next week however Aderant has today announced that Aderant Expert Release 8.0, the company’s flagship practice and financial management system for law and professional services firms, is now available. As the most extensive update of ADERANT Expert delivered in several years, this release gives firms a best-in-class software platform to run their businesses and drive greater productivity, revenues, and profits. New features include:

•    A new Expert Time Management module was designed from the ground up to be the best in the industry. It provides innovative capabilities that greatly simplify entering, reviewing, and editing time. Numerous methods for time capture support multiple user behaviors and preferences, giving timekeepers unprecedented flexibility, speed, and accuracy that will maximize billable time throughout the firm.

•    Significant new functionality has been added to more effectively manage complex and ever-changing fee rate structures. With a streamlined user experience for handling rates and enhanced reporting, firms can improve the overall administration of their various rates structures.

•    Paperless Billing speeds a firm’s capture to cash cycle with streamlined, electronic prebill review and editing. Expert 8.0 further streamlines the review, editing, and now also the approval processes. Additional information and calculations are available to improve awareness while editing and increase accuracy.

•    Scheduling, managing, and monitoring alternative fee arrangement matters and matter portfolios is easy with the new features, including workflow, added to Expert Matter Planning, ensuring that all engagements meet the firm’s profit targets.

“We are excited about the Expert 8.0 release. The rates management and time entry enhancements show Aderant’s continued commitment to the Expert product line,” stated Swen Nielsen, financial systems manager for early adopters Squire Sanders (US) LLP. “As a global law firm, one of the key reasons that we have partnered with ADERANT for so many years is their continued focus on addressing the often complex requirements of firms like ours.”

And we're off with the first of many stories from LegalTech New York, starting with an exclusive preview of some news from IntApp...

IntApp Inc, provider of the most adopted confidentiality management, time capture and application integration software products for law firms, has just announced record growth figures. Presently IntApp serves over 230 customers, ranging in size from 50 to 3750 lawyers, including 63% of the 100 largest US firms as ranked by The American Lawyer.

In the past twelve months IntApp has added 48 new law firm customers and licensed 73 additional products to existing law firm customers Recent IntApp customer wins include Russell Kennedy, Corrs Chambers Westgarth, Fishburns, Wiggin, Lewis Silkin, Miles & Stockbridge and Burr & Forman. In addition in 2011, IntApp grew internal headcount by over 40%, with significant investments in R&D, client support, professional services and account management staff.

Next week IntApp will also be formally announcing two new wins (but you can read them first here, right now)...

McKenna Long & Aldridge, an international law firm with 475 lawyers and public policy advisors, is now using IntApp Wall Builder to enforce ethical screens and manage information security for client confidential matters across the firm.

“Given increasing calls for confidentiality driven by clients and other factors, our firm sought to replace a legacy software tool, which IT had been using to enforce limited security in our OpenText DM5 document management system, with a more modern application that could automate the entire confidentiality lifecycle and provide our less technical staff with a user interface they could manage themselves,” said Paul Hurdle, Senior Counsel, Head of New Matter Intake & Conflicts, McKenna Long & Aldridge LLP. “We looked at several options and quickly recognized that IntApp was the industry expert and that Wall Builder was the most mature product. Today, with our intake and risk staff using Wall Builder to create, manage and report on confidentiality policies across the firm, we know we made the right choice.”

“From our perspective, it’s clear why so many firms have chosen IntApp Wall Builder – the product was easy to weave into our existing intake, screening and compliance reporting processes and has significantly enhanced our internal confidentiality practices,” said Dave Scarzafava, IT Financial Systems Manager, McKenna Long & Aldridge LLP. “We were particularly pleased with the skill and speed with which the IntApp services team implemented the product. Because of their past experience at other firms, IntApp was able to migrate the existing security rules from our legacy security tool and import them into Wall Builder without a hitch or hiccup.”

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Miles & Stockbridge PC, a mid-Atlantic law firm with over 200 lawyers, has selected IntApp Time Builder to enhance its time recording practices.

“Our firm sees tremendous opportunity to improve profitability and lawyer quality of life by automating time capture,” said Ken Adams, Chief Information Officer, Miles & Stockbridge. “We conducted peer reference checks and detailed evaluations of two products and quickly confirmed that IntApp Time Builder offered unrivaled data matching intelligence and ease of use, both of which are critical to lawyer adoption and success with this class of software.”

IntApp Time Builder is a software product that enables law firms to increase revenue by capturing billable time that is missed or under-billed. It does this by providing lawyers with an accurate, consolidated report of their client and matter-related activity, generated by automatically monitoring the key applications they use throughout the day. Tracked systems include document creation, email, calendar, phone, and mobile devices.

The January issue (No#42) of the American Legal Technology Insider newsletter is out now. Top stories include: Microsoft Sharepoint as a DMS platform takes a credibility blow as Old Guard win in head-to-head shoot-out + whatever happened to the Aderant StarLaw DMS?

You can download a free copy by clicking on the attached PDF or you can read it in the Flash page-turning edition see below. (Sorry iPad users but we are working on this.) You can also have the newsletter delivered straight to your desktop via email free of charge – just send a note of your email address to subs@legaltechnology.com and include the words 'American Insider Subs' in the subject line. The next issue will be published on Thursday 9th February.

Work has now started on the January issue of the American Legal Technology Insider newsletter – the deadline for copy is close of business Eastern time next Tuesday 10th January – and the newsletter will be published on Thursday 12th January.

We've also attached a spreadsheet containing the timetable for the whole year.

Here’s what DocsCorp has to say…

Charles, thanks for the Workshare piece on your blog. Without going into the “lies, damn lies and statistics” bit, we would like to make just a few comments.

A lot has changed from the good old days when Workshare had a near 100% monopoly in the legal market for document comparison. Certainly the arrival of DocsCorp and Litera has spiced things up in document comparison, which has seen Workshare’s market share start to erode. Competition is healthy and law firms globally have benefitted from it with new solutions, pricing, feature sets and customer service. I think we can chalk that one up to a win for the customer.

Interesting slant on the TechnoLawyer top 15 products piece, which according to the Workshare PR “is a testament to the legal community’s strong acceptance of Workshare products.” Wow, as the late Steve Jobs would say, that’s a bit of a stretch especially when you read how Neil determined the top 15 – the amount of clicks an article received from readers. You read correctly.

Here’s how Neil puts it… “For each product we cover, we track the number of clicks. Not for nefarious reasons mind you. We track clicks in the aggregate so that we can see which products you and your fellow subscribers find most and least interesting to help guide our future coverage. We also track clicks so that we can engage in one of publishing's most enduring cliches – the annual top 10 list.”

Wow again! So these people haven’t actually used the product, they are simply reading about it. Also, not sure I understood Neils’ comment “Workshare is the Adobe Systems of the legal industry.” I always thought Adobe Systems was the Adobe Systems of the legal industry. Yes, I think we know actually what Mark Twain would say about these statistics…

According to the International Legal Technology Association (ILTA) 2011 Technology SurveyWorkshare, Workshare is the overwhelming top choice for its software solutions at law firms with more than fifty attorneys.
 
The annual survey represented input from over 100,000 attorneys and more than a quarter million users. According to the report, for firms with 50 to 149 attorneys, Workshare’s solution is the number one choice for 53% of respondents, for firms with 150-349 attorneys Workshare is selected by 70%, and for firms with 350-699 attorneys, the software is used by 75%.  For firms with more than 700 attorneys, 85% reported selecting Workshare as their solution.
 
In a related development, the latest TechnoLawyer list of the top 15 Products of the Year places Workshare PDF Professional and Workshare Point in the second and fifth places on the list, respectively – the only company to have two products in the top five.  In the summary of Workshare PDF Professional, author Neil Squillante called Workshare the “Adobe Systems of the legal industry.  Speaking of which, Workshare PDF Professional takes aim at Adobe’s Acrobat with a low price of $79.” For Workshare Point, number 5 on the Top 15 list, Squillante writes that until they covered the new solution “which transforms SharePoint into a legal-specific document management system.”

If you look elsewhere in the ILTA survey, you'll see that the corresponding market shares for arch rivals Litéra and DocsCorp are:
Litéra                  50-149 6%,   140-349 14%, 350 – 699 8%   700+ 8%
Docscorp             50-149 13%, 140-349 13%, 350 – 699 14% 700+ 3%

Neither DocsCorp or Litéra appeared in the Technolawyer new products piece.

Comment: let the squabbling over statistics begin...

Several of America’s oldest law firms have turned to Litéra for better ways to administer document lifecycle management, workflow and client data protection. The latest deals are:

    •    Davis Polk LLP (founded in 1849) was recently named the most innovative law firm in the United States by the Financial Times. The firm purchased Litéra’s Change-Pro TDC, Change-Pro for Excel, Change-Pro for PowerPoint and Innova.
    •    McCarter & English LLP (founded 1851 and in continuous operation for more than 160 years) has over 400 lawyers and offices in Boston, New York, Philadelphia and three other cities. The firm has selected Litéra’s Change-Pro TDC and Metadact.
    •    Ropes & Gray LLP (established in 1865) was named by US News & World Report in rankings released Nov. 1 as Law Firm of the Year for hedge funds. They have invested in Litéra’s document comparison tool Change Pro and Change Pro for Excel, both of which offer comparison of imbedded objects, numbers and formulas within cells.

The 2011 Clio Apple in Law Firms Survey results have been tabulated and 763 people participated, 80% of which were practicing lawyers and 20% of which were law students or non-lawyers.  76% of respondents were lawyers at firms with 10 attorneys or less. Many of the survey respondents were relative Mac newcomers: 25.3% of respondents had switched to Mac within the past year.
 
Co-sponsored by MILOfest, this year’s results show that Apple products are going strong and gaining ground with small firm lawyers at the expense of previously dominant legal technology players, such as Research in Motion.
 
Widely-used products in the survey included iPhones, used by 60.9% of respondents; Dropbox, used by 25% of respondents; iCloud, seeing high adoption at 15%; and Android phones with usage at 13%.  Evernote, a note-taking app not included in last year’s survey, debuted at 14% usage.  OpenOffice had gained 2 percentage points since last year, showing that open source technology is appealing to solo and small law firms.
 
Why are lawyers continuing to “go Mac”?  46.5% of respondents said they chose Apple hardware over PC options because the technology was more reliable and secure. Usability was next on at 33.8%. Familiarity due to home use of Apple/Mac products was 9.8%, and surprisingly aesthetics and design came in fourth at only 3%.
 
76.5% of law students said that when they graduate, they plan on choosing a Mac platform for their office.  his statistic shows that Mac has a bright future in legal, since the new generation graduating is heavily Apple-oriented.
 
“This is the second year Clio has conducted this Apple in Law Firms survey to benchmark the degree of adoption of Apple products and other emerging technology in the legal industry,” said Clio CEO & Co-Founder Jack Newton. “Apple hardware and devices - especially the iPad and iPhone - continue to capture the attention and dollars of lawyers, cloud-based applications have won attorneys’ confidence and gained more traction. With the majority of law students planning to use Mac apps in their law practices upon graduation, we can reasonably predict a longstanding trend toward continued expansion of Apple products within the legal industry.” (Clio’s parent company Themis Solutions Inc is based in Vancouver, British Columbia)

All legal professionals and law students were invited to participate in the survey, regardless of size and location. The survey aimed to determine to what extent lawyers and law students are now using Apple products, and whether there is clear evidence of an increasing trend of the legal industry “going Mac” in the future. 
For more information on the 2011 Clio Apple in Law Firms Survey or to receive the complete survey results, email info@goclio.com