to streamline discovery, rather than
use it as an opportunity to antagonize,
Nahrstadt said.
The courts have weighed in on
proportionality and cooperation in what
Nahrstadt called a "game changer,"
especially for smaller law firms and
their clients. Amendments to the
Federal Rules of Civil Procedure,
which are expected to go to Congress
by May 2015 and be effective as new
law as of December 1, 2015, promote
proportionality in e-discovery. One
amendment revises the scope of
discovery, stating discovery must be
"proportional to the needs of the case
considering the amount in controversy,
the importance of the issues at stake in
the action, the parties' resources, the
importance of the discovery in resolving
the issues, and whether the burden
or expense of the proposed discovery
outweighs its benefit."
Courts are also calling upon parties
and their counsel to cooperate on
e-discovery issues. In July 2008, the
Sedona Conference, an e-discovery
think-tank, started the movement
by publishing its "Cooperation
Proclamation." Since then, some
judges and courts have endorsed
the proclamation and stressed the
importance of cooperation in the
e-discovery process.
This directly benefits Primerus firms
and their clients, Nahrstadt said.
"I think that we, as smaller firms,
as a general rule are more collaborative
than the bigger firms. We have better
relationships with the attorneys that we
face simply because we actually do the
work. We are actually doing the work
rather than a first year associate, who
goes to a third year associate, who goes
to a junior partner, who goes to a senior
partner," he said. "We're not built with
that kind of bureaucracy. We tend to be
the people on the front lines dealing with
the other side, so we need to have civil
of us in small firms have been pushing
proportionality before the rules changed."
Another e-discovery trend
predictive coding also levels the
playing field among small and bigger
firms. Predictive coding is technology
that uses keyword searches, filtering
and sampling to automate portions of
an e-discovery document review, all
with the goal of reducing the number
of documents that need to be reviewed
manually. Nahrstadt likened it to the
same technology Netflix uses to pick
movies users would like, as well as
grocery stores to print coupons based on
a customer's purchases.
"I think that people are starting to
realize the gold standard is no longer a
lawyer looking at every piece of paper,"
Nahrstadt said.
He cited a 2012 RAND study
which showed that document review
makes up 73 percent of discovery costs,
representing an exorbitant cost to clients.
"This has the potential to be a real
game-changer when we're talking about
cost," Nahrstadt said. "This is not only
good for us, it's good for our clients."
of the Oklahoma Bar Association
Management Assistance Program,
lawyers today must embrace technology
that helps them and their clients. In his
article "It's Time to Love Technology"
in the January/February 2015 issue of
Law Practice, he points out that in 2012,
the American Bar Association Rules of
Professional Conduct were amended to
state that lawyers must have knowledge
of "the benefits and risks associated with
relevant technology."
"The long history of our profession
is dealing with a lot of information with
paper," Calloway said. "We were experts
on paper client files and 3-by-5 index
cards and all sorts of methods that
allowed us to manage client information
very effectively. Now that the world has
changed and paper is almost always
not the most efficient way to handle
undertaking a shift in the way they
operate."
In his article, Calloway tells the
story of Casey Flaherty, Kia America's
in-house counsel, who was very pleased
with their outside counsel's legal work,
but not so pleased with their efficiency
in administrative matters. He worked
with professor Andrew Perlman of the
Suffolk University Law School's Institute
on Law Practice Technology Information
and Innovation to create the Legal Tech
Audit, released in August 2014.
"Examples of poor uses of technology
that cost the client money included
printing documents to paper and then
scanning them to create a PDF file rather
than creating the PDF directly on the
computer, and an associate billing for
hours to manually make mathematical
calculations that could be done with a
spreadsheet."
Calloway said Flaherty and others
decided this was a major differentiator
in law firms. As he wrote in his article,
technologies that allow
them to accomplish
things that would not
have been possible a
short time ago," ... "It
allows them to offer better
services at less cost, as
well as collaborate more
closely with their fellow
Primerus members
around the world."