How Judges Make Decisions?

Law students enrolled in various law schools learn little about the fundamentals of legal jurisprudence as being an elective course. Not only that, professors spend less time on this subject matter and more on the exigencies of law. Among these students become Judges and must decide on cases that range from a simple case to a highly complex legal matter. The fundamentals of jurisprudence being taught is different in various parts of the world. For instance, the teachings of law within the American legal education is different from the common law principles taught in European and Asian countries.

Following predefined learning processes, Attorneys adhere to the notion that traditional law books and materials seldom suffice in determining the outcome of the case. While books and materials provide solid understanding of legal principles, reasoning, and logic, there is a dire need of having greater understanding of how the court interprets and gives its verdict. In most cases, students are taught that the outcome of a case can either be rules in favor of the plaintiff or the defendant. As a result, comparing precedents and various historical cases and patters, students fall victim to various forms of biases.

The Legal Realism entails that typical style of judicial decisions are not quite accurate depiction of the actual process of adjudication by basing itself on the major premise of law itself, followed by facts as its minor premise, and its conclusion follows the logical certainty. This is also known as mechanical jurisprudence.

No matter how the case is decided in the court of law, legal reasons, as implicitly taught within the American legal education, solely by themselves cannot form the basis of why a Judge decided a case as he or she did! On the contrary, the rest of the world, for the most part, follows the norm of:

  • How often an existing law runs out
  • How to fulfill existing gaps within legal reasoning and logic

Some Judges deciding on matters of fact follow a certain pattern such as enforcement of norms of prevalent culture and reaching the best possible decision under the prevalent socioeconomic condition. The main role of Judges should to act as a delegated decision maker and to dig deeper into various Cases, Statutes, Principles, and Jurisprudence.

Unlike classic legal thought, the legal education, largely shaped by the legal Realists in understanding the nature of adjudicating matters, has a distinct way of looking at the law. Judges take on these approaches while deciding cases, and reach to conclusions that may turn out to be good for some people, but bad for others.

Watch a free lesson from my E-Discovery course here:

Syed Raza:

With over 20 years of combined experience in the fields Law, Management, and IT, Syed has impeccable reviewing and strong editing skills with a long track record of writing technical, legal, and management articles that make readers stop and think. Being an entrepreneur, professor, and attorney, he providesconsultancy, management consulting, and project management in e-Discovery issues in complex civil litigation. He is the CEO of ClayDesk, an e-Discovery and cloud computing consultancy firm, and can be reached at ceo@claydesk.com

Please follow and like us:

Implementation Of Law: A Word Of Wisdom





We have laws for just about everything from personal laws to commercial, contractual, e-discovery, and list goes on and on…

What’s important is to understand the ‘implementation’ of such laws! In my experience, as an attorney, I have come across hundreds of laws from all the way from legislation to the point when they are repealed! Laws have been around for a long time, yet we regularly find instances/cases where person suffered illegal detention, false imprisonment, and so forth.

The litigation hold in the process of e-discovery can be summed up in the following definition:

A litigation hold is a written directive advising custodians of certain documents and electronically-stored information (ESI) to preserve potentially relevant evidence in anticipation of future litigation

Well, easier said than done! In the NuVasive, Inc. v. Madsen Med., Inc., No. 13cv2077, 2015 WL 4479147 (S.D. Cal. July 22, 2015) case, simply implementing a legal hold was not enough to satisfy a party’s duty to preserve. Instead, the party must take affirmative steps to implement the hold, follow up with custodians to ensure data preservation, and also ensure that the hold covers all forms of data, including text messages and other emerging data formats.

Well, that seems like and, in fact, is a daunting task. In today’s computing scenario, where majority of the time the workforce is mobile, and not to mention the influx of mobile devices each of us have an use – then we try to remember “Where in the world did I save/store that document” – you get the point.

Within the realm of e-discovery, litigation can be reduced by providing an indispensable, seamless, and a fully collaborative platform/solution so that documents, text messages, and voice can be saved in repositories. Proactive approach towards data compliance will reduce costs in the long run for corporations!

The Information Governance Model (IGRM) Reference Guide at E.D.R.M does a fairly decent job at presenting a model.

While the future of e-discovery may rest on the foundation of information governance, a wise and proactive approach with special emphasis on building efficient processes, and more importantly automating those processes within the organization must be adopted to reduce legal complexities.

Here’s a sample tutorial of what SharePoint/Office 365 Compliance Center can help you achieve!

Please follow and like us:

How e-Discovery works in SharePoint 2013

SharePoint 2013 allows you to use eDiscovery and compliance features to manage and recover evidence used in civil litigations, as well as manage the records for your enterprise. Being such a powerful web based platform, you can create various sites (similar to web sites) within the SharePoint environment.

Before deploying SharePoint Server eDiscovery features, an important consideration, however, is to plan the search service application infrastructure for your organization. E-Discovery uses search service applications (SSAs) to crawl SharePoint farms. You can configure SSAs in many ways, but the most common way is to have a central search services farm that crawls multiple SharePoint farms. You can use this one search service to crawl all SharePoint content, or you can use it to crawl specific regions, for example, all SharePoint content in Europe.

The way it works is simple: To crawl a SharePoint farm, search first uses a service application proxy to connect to it. The eDiscovery Center uses the proxy connection to send preservations to SharePoint sites in other SharePoint farms.

Key features and APIs in eDiscovery include:

  • Case Manager, which enables records managers to create and manage enterprise-wide discovery projects, place potentially large amounts and various types of content on hold, and preserve a snapshot of content.
  • Enterprise-wide access, which includes the ability to put content on hold and to search for content from a central location. It also includes the ability to conduct searches, access SharePoint content, and place content on hold in any configured SharePoint location.
  • In-Place Holds, which enables an attorney to preserve a snapshot of content while ensuring that users can continue to make changes without disturbing the state of the content snapshot.
  • Analytics, which enable attorneys, administrators, and records managers to collect and analyze data about eDiscovery activity.

Take the course below and sharpen your Excel skills!


e-Discovery and | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
www.claydesk.com
(855) – 833 – 7775
(703) – 646 – 3043

Please follow and like us:

Predictive Coding In E-Discovery: The Game Of Convenience

Back in 2012, Magistrate Judge Andrew Peck’s decision in Da Silva Moore v. Publicis Groupe & MSL Group, 287 F.R.D. 182 (S.D.N.Y. 2012), officially gave the green signal to start utilizing TAR in e-Discovery. The same Judge recently issued an opinion in Rio Tinto PLC v. Vale S.A., 14 Civ. 3042, 2015 WL 872294 (S.D.N.Y. March 2, 2015), titled “Da Silva Moore Revisited”, and stipulated sharing of “seed sets” between parties.

Importantly, the opinion reiterates that “courts leave it to the parties to decide how best to respond to discovery requests” and that courts are “not normally in the business of dictating to parties the process that they should use”.

Importantly, Judge Peck instructed that requesting parties can utilize other means to help ensure TAR training, even without production of seed sets. For instance, the honorable Judge suggested statistical estimation of recall towards the end of the review to determine potential gaps in the production of documents.

Yet, in cases such as Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391, 2013 WL 6405156 (N.D. Ind. Aug, 21, 2013), for example, the court declined to compel identification of seed set, however, encouraged cooperation between parties.

So, where are we going with TAR?

According to the Grossman-Cormack glossary of technology-assisted review with foreword by John M. Facciola, U.S. Magistrate Judge, seed set is “The initial Training Set provided to the learning Algorithm in an Active Learning process. The Documents in the Seed Set may be selected based on Random Sampling or Judgmental Sampling. Some commentators use the term more restrictively to refer only to Documents chosen using Judgmental Sampling. Other commentators use the term generally to mean any Training Set, including the final Training Set in Iterative Training, or the only Training Set in non-Iterative Training”. The important thing to know about seed sets is that they are how the computer learns. It is critical that a seed set is representative and reflects expert determinations.

With this in mind, in one of my articles back in April 2014 titled “E-Discovery Costs vs. Disseminating Justice – What’s Important?” I concluded that technology must strictly be used as a tool in aid to the due-process of law.

As an attorney, I love a good argument corroborated as well as substantiated by solid precedents. Use of TAR in e-Discovery invariably is becoming a matter of “convenience” between both parties in trying to resolve issues. Well, we have arbitration laws for that matter!

Take the course below and sharpen your Excel skills!


e-Discovery and | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
www.claydesk.com
(855) – 833 – 7775
(703) – 646 – 3043

Please follow and like us:

What’s Wrong with Outsourcing? Really?

A company’s existence is directly linked to its profit-making capabilities. This includes employing the most gifted workforce, running optimized operations, having excellent quality controls in place, just to name a few. There is an invisible force, however, constantly acting behind this entire process – the force of ‘laws of economics’ – principles of demand and supply.

The word ‘globalization’ is not a new buzz word anymore. However, its relation to economics is where the dilemma of outsourcing and offshoring lies. Gone are the days when corporations had loyal employees working for them, the technological advancement has disrupted not only how we work but how we think – Yes! We think Google, Facebook, LinkedIn, Twitter, and for the most part have become dependent upon technology.

So, what impact does technology have on driving profits for a company? Look around you – things have changed, human behavior has changed, our thinking process has changed – we have become victims to this unstoppable monster.  As the Greek philosopher, Heraclitus, rightly said “There is nothing permanent except change”. As a result, companies who adapt to the changing environment remain at the forefront, and those who resist potentially may bear the grunt. In any case, the objective remains to make profits for shareholders.

We all are aware of the exponential growth of technological innovations and big data. What should companies do to maximize their profits in this dynamic environment? Outsourcing seems to be the logical solution. The single biggest advantage is reduction in existing costs. Consider a simple scenario related to e-Discovery industry:

“Company A is looking to hire Document Review Attorney for its e-Discovery project. What could possibly be the lowest per hour rate for a first pass review? How does 20 dollars per hour sounds! In today’s economy, believe it or not, you will find qualified, experienced, and certified individuals who would be willing to work. In the US, this rate is certainly peanuts for an attorney, but in India, Pakistan, Philippines, and Bangladesh, for example, 20 dollars per hour would fetch a luxury lifestyle”

With the advent of cloud computing, developing countries now have access to all the latest technologies, learning tools, methodologies, norms, usages etc. Workforce has truly become global and cloud computing is driving costs further down. As buyers influx the marketplace searching for low priced efficient technologies, sellers lower their costs to remain competitive. Consequently, companies may not afford or attract high paid workers. To bridge the gap, various outsourcing models fit the puzzle, providing same services at a drastically reduced price. Companies now have access to equally qualified workforce available in the cloud. To top it off, Ivy League universities now offer Bachelors and Masters level degrees online. So, for example, I could obtain an MBA degree from an Ivy League business school, while residing anywhere in the world, and provide expertise on a project via the cloud.

Having said that, profitability, principles of demand and supply, and cloud computing technologies are factors exerting pressures on US companies to find alternative ways to increase profitability. Microsoft and Amazon provide secure state-of-the-art data storage centers, and with SaaS, PaaS, and IaaS technologies, allowing for data security. A good example is of WordPress – majority of their employees are virtual. Similarly, Microsoft with its launch of Office 365 and allied products is evidently cloud based, and a qualified professional could administer, manage, and support Office 365 from anywhere in the world!

Watch us on YouTube

outsourcing

Outsourcing


e-Discovery and | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
www.claydesk.com
(855) – 833 – 7775
(703) – 646 – 3043

Please follow and like us:

7 Tips for Implementing E-Discovery Best Practices

E-Discovery best practices begin with making data management as part of daily routine and business operations. Attorneys cannot achieve this objective without the help of IT department, and IT personnel cannot properly maintain data without guidance from attorneys about what should be kept or destroyed. Federal Rules of Civil Procedure related to e-Discovery and keeping up with changing law in the area is a good start, however, knowing and understanding how to put these lessons to practically work in practice is the key to implementing and conducting e-Discovery successfully. Planning ahead plays a pivotal role as it sets the standard for effective relationships between internal and external legal and technical resources. Below are few tips for implementing effective best practices for both inside and outside counsel.

  1. Be proactive and have a formal document retention policy in place with rules for saving and destroying electronic documents.
  2. Increase company-wide awareness of litigation readiness, and train employees to organize documents in an organized manner. Better yet, implement an effective document management solution such as M-Files – which includes e-compliance module.
  3. Effectively cater to big data and effectively implement strategy for later archival, identification, and production in a timely fashion.
  4. Train IT personnel to act as a deposition witness as per rule 30(b)(6).
  5. Preserve potential evidence when necessary while effectively train and involve key legal and IT personnel as soon as litigation is imminent.
  6. Must have adequate knowledge about client’s information systems and operations to effectively define e-Discovery parameters, ensuring smooth functioning with opposing counsel. Try to minimize disruption of clients operations.
  7. When a document request is received, be a partner in the data retrieval process – not just a messenger.

While harmony, effective communication, and smooth functioning between attorneys and IT personnel can prove to be beneficial for the organization, keeping current with latest technology and how it can streamline the e-Discovery process is equally important. After all, the purpose of technology is to act as a tool to handle complex e-Discovery in a speedy and cost efficient manner.

e-Discovery best practices

e-Discovery best practices


e-Discovery and | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
www.claydesk.com
(855) – 833 – 7775
(703) – 646 – 3043

Please follow and like us:

7 Things E-Discovery Auditors Must Do

U.S. Federal Rules of Civil Procedure (FRCP) require organizations to look at the ability to respond in a legally defensible manner to discovery requests. Moreover, as organizations expand globally, they need to be ready at all times to provide information that could be requested as evidence in a legal proceeding. Internal or external auditors are in the best position to recommend policies and best practices that can prepare organizations to respond to a data discovery request. The auditors must:

  1. Determine the effectiveness of the e-Discovery communication plan

  2. Document the IT environment

  3. Regularly review backup, retention, and data destruction policies

  4. Review compliance with document destruction procedures, when a litigation hold is issued

  5. Document the steps that will be taken to respond to e-discovery requests

  6. During litigation, determine whether employees are preserving the integrity of relevant material

  7. Review existing backup controls, reports, and inventories of media stored off site

Failing to prepare for an e-discovery request can result in sanctions. Organizations need to have a litigation readiness policy and plan in place to effectively deal with lawsuits. Auditors play a pivotal role in managing litigation risks and help organizations take a proactive approach to e-Discovery by recommending strategies that address key data preservation, storage, destruction, and recovery disquiets. Microsoft SharePoint 2013 and M-Files, for instance, offer e-Discovery and content management solutions to cater to these needs.

e-Discovery auditor

e-Discovery auditor


e-Discovery and | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
www.claydesk.com
(855) – 833 – 7775
(703) – 646 – 3043

Please follow and like us:

Corporate Social Responsibility (CSR) in E-Discovery Industry

Triple Bottom Line

Corporate Social Responsibility (CSR) is a management concept in which companies integrate social and environmental concerns in their business operations and interactions with their stakeholders. The basic definition according to Wiki:

“Corporate social responsibility is a form of corporate self-regulation integrated into a business model. CSR policy functions as a built-in, self-regulating mechanism whereby a business monitors and ensures its active compliance with the spirit of the law, ethical standards, and international norms”

CSR is best incorporated with the ‘Triple Bottom Line’ (TBL) approach, which is essentially an accounting framework incorporating three dimensions of performance: financial, social, and environmental.

Triple Bottom Line

Triple Bottom Line

A triple bottom line measures the company’s economic value, ‘people account’ – which measures the company’s degree of social responsibility and the company’s ‘planet account’ – which measures the company’s environmental responsibility. While CSR indoctrination within the e-Discovery industry may be prevalent, only a handful of companies may actually have developed and adopted CSR.

Adopting to a mindset of a good corporate citizen, at ClayDesk, we have initiated the development of a CSR program with a goal of embedding CSR practices in our business. The foremost area of focus for CSR initiatives are directed towards promotion of legal education, e-Discovery laws, Pro-Bono legal work, sponsor a student, and steps towards a paperless (go-green) environment. These steps will bring about positive change and improve the quality of life of members of the society.

Some of the core CSR issues relate to: environmental management, eco-efficiency, responsible sourcing, stakeholder engagement, labor standards and working conditions, employee and community relations, social equity, gender balance, human rights, good governance, and anti-corruption measures. Denmark, for instance, has CSR Law in place which mandates companies to report their CSR initiatives. Apart from providing charity and sponsorship, CSR concept goes beyond by allowing companies the opportunity to become a socially and ethically responsible corporate citizen.

CSR

ClayDesk’s committment to CSR


e-Discovery and | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
www.claydesk.com
(855) – 833 – 7775
(703) – 646 – 3043

Please follow and like us:

Outsourcing or Insourcing? The Balanced Score Card approach

Outsourcing is now a common phenomena among businesses. Essentially, you contract out a business process to a third party, both foreign and domestic contracting – at times relocating a business function to another country. Traditionally speaking, companies having financial difficulties didn’t have much choice but to restructure, lay-off employees or incur additional debt to cover short term obligations. Outsourcing of redundant business processes came as a sigh of relief for many, especially large corporations with humongous overheads. The incentive to outsource may be greater for U.S. companies due to unusually high corporate taxes and mandated benefits such as Social Security, Medicare, and Occupational Safety and Health Administration (OSHA) regulations.

Now that you have successfully outsourced and established a cordial relationship with your vendor, industry trends may change that require you to focus more on certain business segments.  Insourcing has been identified as a means to ensure control, compliance and to gain competitive differentiation through vertical integration or the development of shared services (commonly called a ‘center of excellence’).

But wait a minute! It seems like you require both in order to attain a lean and optimal cost effectiveness business model.

E-Discovery Industry:

For the last decade or so, e-Discovery industry has experienced tremendous growth in terms of outsourcing mainly due to escalating costs. The result – growing number of captive centers all over the world, especially with abundant labor resources such as India, Pakistan, and Philippines. The biggest cost driver in e-Discovery is document review – over 60 percent of total costs, one of the main reasons of influx of captive offshore centers or outsourcing. Recently, however, law school graduates in the US, for instance, have been accepting employment at all time low wages – making it increasingly competitive for e-Discovery vendors.

What’s an optimal solution?

According to Balanced Score Card Institute, “The balanced scorecard is a strategic planning and management system that is used extensively in business and industry, government, and nonprofit organizations worldwide to align business activities to the vision and strategy of the organization, improve internal and external communications, and monitor organization performance against strategic goals” Using this tool helps an organization to identify, understand, and evaluate core business processes, resulting in best practices of utilizing outsourcing and insourcing strategies.

e-Discovery | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
www.claydesk.com
info@claydesk.com
(855) – 833 – 7775
(703) – 646 – 3043

ClayDesk_BSC

Please follow and like us: