A New Dawn for the Association of E-Discovery Specialists

Episode Notes

Transcript

Advertiser: Welcome to Digital Detectives, reports from the battlefront. We’ll discuss computer forensics, electronic discovery and information security issues and what’s really happening in the trenches. Not theory, but practical information that you could use in your law practice. Right here on the Legal Talk Network.

Sharon D. Nelson: Welcome to the 61st edition of Digital Detectives, we’re glad to have you with us. I’m Sharon Nelson, president of Sensei Enterprises.

John W. Simek: And I’m John Simek, vice president of Sensei Enterprises. Today on Digital Detectives, our topic is, A New Dawn for the Association of E-Discovery Specialists. We’re delighted to welcome as today’s guest, ediscovery veteran, Mary Mack, who has just been named the executive director of ACEDS, Prior to joining ACEDS, Mary most recently served in a leadership role for ZyLab, a global provider of ediscovery and intelligent information governance software. Before that, she was with Fios, Inc., a provider of ediscovery services to Fortune 1000 corporations and major law firms. Thanks for joining us today, Mary.

Mary Mack: Thank you John and thank you Sharon, I am honored to be here.

Sharon D. Nelson: So let’s start with a little bit of the history of ACEDS. There was a time when we weren’t real big fans,  but as the title of this podcast suggests, it does seem to us that ACEDS has been moving in a different direction and we are indeed witnessing a new dawn for the organization. What are your thoughts on all of this, Mary?

Mary Mack: Well, Sharon, I hear you on the history of ACEDS and prior to taking the position when it was offered, I made sure that the bridges that were broken could be rebuilt and apologies be made to some folks that had been hurt by the former ownership of ACEDS. So in a nutshell, ACEDS was owned by one individual who I would say had sharp elbows. And in our legal vertical, especially with a litigation focus, we could either have sharp elbows and scorched earth, or we could have as the late Richard Braman champion, we could have cooperation. And I think we’re pretty unusual in the legal community around the ethic of cooperation and collaboration. Well, the former owner did not do that and ended up hurting some very beloved people in the community. And so prior to taking the position, I made sure that the new owners, BARBRI, who many of us are BARBRI alone from taking their Bar exam courses and having the help of getting our licenses. After BARBRI purchased ACEDS, there was some litigation. It’s all settled, and I’m coming in and shifting the focus from being sharp-elbowed and sharp-penned and investigatory to being more of a member-focused and community-focused and collaborative organization.

Sharon D. Nelson: We certainly appreciate that direction, that’s a good one to go in.

John W. Simek: I think they started well by putting you in charge there, Mary.

Mary Mack: Well, thank you. You’ll hear more on that as I have permission to publicly apologize to individuals involved in the past. So thank you, I appreciate your support.

John W. Simek: So, Mary, tell us a little bit about why certification is important to the ediscovery professionals. And can attorneys be certified ethically?

Mary Mack: Certified or certifiable? Let’s take the attorney one first, and of course, attorneys can be certified. The question is more for their individual Bar membership as to how they can market their certification and holding themselves out as specialists. And we’re looking very closely at how we can serve attorneys and then also provide for them a way to do that that doesn’t run a follow up of the various Bar requirements. But why it’s important for ediscovery professionals, attorneys included, is that this is a field that’s beginning to mature. And as it matures, there’s so many people entering with various levels of expertise in different domains. The people might come in from IT or from paralegal or attorneys themselves. And to get a vendor-neutral grounding in what the ediscovery process is – and what I would call the function requirements of ediscovery – and some of that moves into legal and some of it’s more processed and some of it’s more technology. But to have an independent party give a proper test and certify that, and also certify the number of years of experience, much like the CISSP model where you don’t just take a test, you also have an experience level. That would give hiring managers and also insurance underwriters a comfort level that there’s a level of expertise in an organization. And I think the way that things are shaking out in the ediscovery world and in the legal world, I think it’s important to validate the experience that people have very hard won experience in this community.

Sharon D. Nelson: I guess the phrase everybody is using is, “What’s trending now?” So what’s trending in ediscovery certification and training, Mary?

Mary Mack: Well, there are courses popping up all over the place for people at the university and even the community college level. There are whole companies that are focused on training. We have some longtime folks in the community that have offered training; Ralph Losey’s one of them, Mike Arkfeld is another one of them, Sherry Stern with LLP, of course. And what I saw,  – really, I was quite surprised when I joined on Monday – is the number of teams that are certifying. 6, 8 people are all going through the training and all getting the certification, which is just amazing to me. So the next trend forward will be updating for the new 2015 rules so the tests track along that, and yeah. That’s what I’m seeing.

John W. Simek: What about other training, Mary? Do you see anything else that would potentially be necessary or helpful?

Mary Mack: I’ve been out speaking over the last year about the concept of “ediscovery and.” So they’re not, ediscovery or privacy, or forensics, but ediscovery and forensics, ediscovery and information governance. So I’m thinking about trainings as fundamental, as what Casey Flaherty’s doing around getting attorneys up to speed on the functions of Microsoft Office that lend itself to legal practice. And that’s stilled into ediscovery as well, being able to put together the Excel budgets, for example, in a court consumable way. Very, very helpful. Dan Katz has got his program that he moved from Michigan into Chicago where he’s training people on hour to be able to do some work there. So forensics is pretty strong. I feel like everybody should be certified in forensics, and privacy and security too. I think it’s ediscovery and all these things.

John W. Simek: I guess my CISSP and my forensics certifications are going to help me, then.

Mark Mack: Pretty soon, you’re going to make it, John.

Sharon D. Nelson: We’re pretty sure that you agree with us that law students need to be taught about ediscovery and it’s been argued over the years that most law schools are doing a pretty lousy job with this. I know we lectured that with UVA and they brought John Tredennick out with us as guests, and he was there for two weeks and that was the extent of the ediscovery training. Are the law schools getting any better and do you have any suggestions for them?

Mary Mack: I think some of them are, and they’re in the early adapter mode where they’re bringing in people who have industry expertise to do more like a continuing CLE for their alumni and some of them are actually teaching the law students. But I remember having one of the greatest civil procedure professors on the history of Earth, Marty Redish, very energetic civil pro teacher, and having my eyeballs roll back in my head during civil procedure. And I think that ediscovery brings civil procedure alive. So there’s an opportunity for law schools to teach this with some hands on components that perhaps, in conjunction, with the clinics that they have. But they’re not doing a good job now, no. I think Kroll had a study where 129 out of 178 had nothing, and that’s abysmal in my view. We have a curriculum, others have a curriculums like Mike’s and Georgetown’s, so there are curricula that exist. And I think that graduating the young lawyers without the knowledge is not wise and it is not good.

John W. Simek: So, Mary, give us your thoughts about some of the state Bars. I know they’ve adopted ABA’s Model Rule 1.1, discussed in the technical competence. I think 14 of them have done that so far. It seems to me it’s been a little bit on the slow side, but what are your thoughts about that? About the Bars trying to change their rules so that attorneys are technically competent?

Mary Mack: Well, I wish it wasn’t necessary. I wish it could just be competence and technical would be included. But I think we know that it isn’t, and so having those rules, I think, will increase the number of attorneys that actually spend the time to get up to speed on ediscovery as well as other technical issues. And I mentioned earlier about insurance underwriters. I think that as the state Bars do this, they’re putting a negligence standard in that it’s just expected. That it’s the normal thing to do, is to be competent or to reach out to those who have that expertise. Nobody has to be a brain surgeon, but if you have a case where there’s brain surgery, you bring in an expert. And I think that that will increase the demand, certainly, for people in our community who have the expertise to help those that don’t, because now they have a real reason with Bar licenses on the line. It’s not as forgiving, I don’t think in those 14 state Bars, as it was in 2006 when they were like, “Oh, we’re the old time lawyers, we’re not going to discipline them or anything else like that, we’re just going to let them do whatever they want.” I don’t think that’s happening anymore.

John W. Simek: Well, before we move onto the next segment, let’s take a quick commercial break.

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Sharon D. Nelson: Welcome back to Digital Detectives on the Legal Talk Network. Today our topic is, A New Dawn for the Association of E-Discovery Specialists. Our guest is Mary Mack, who has just been named the executive directors of ACEDS.

John W. Simek: Well, Mary, I know our listeners would really like to hear about what does the ACEDS certification test cover, and it is too difficult, is it fairly easy? Kind of give us a feel for that.

Mary Mack: Sure, sure. The test covers information governance through production of the EDRM model. It covers some of the key cases that inform how we do ediscovery – as I referred to earlier, like the functional requirements of ediscovery. And whether or not it’s too easy, I know folks that have several years of experience study very hard for the exam and most of them did not think it was too easy. Although I have had some people who’ve been around quite a while who really know their stuff. So we’re continually evolving our stuff and we’re in a beta now for the new test questions that are coming up and then the next iteration will be for the changes around the 2015 rule.

Sharon D. Nelson: So tell us why you would stop your hands on work with clients to move into education, that’s an interesting question.

Mary Mack: Well, Sharon, the two companies I worked for, FIOS and ZyLAB were both wonderful ediscovery communities that allowed me to collaborate across lines. But then there are some things that you just can’t do when you’re in a service provider or software position. And the ACEDS opportunity came to me and I thought at this point in the legal profession, where we’re thinking about multidisciplinary practice, where we’re thinking about having different ownership structures like in England, and licensing other professionals – what they call the pejorative non lawyer folks to do legal functions – that this was an opportunity for me to contribute. And I believe people like yourself and John, your partnership and then the legal and technical people that have that understanding of both technology and the functional requirements of legal as we develop algorithms, as we develop platforms like Facebook or Google. We will be informing what use to e informed by attorneys making law. We’ll be making information structures and information flows and processes. And I think it’s a very critical thing for our country, for our profession, and this was a platform that would allow me to contribute in that way.

John W. Simek: Mary, can someone take the test without any ediscovery experience, or is that pretty much one of the requirements?

Mary Mack: Well, to be certified, you need two years of experience. The system credential is certainly one of those types of experience, but validated by others, validated by your peers to be certified. And to take the test, there’s training to take the test, but in my experience, people need a grounding in ediscovery before they’ll be able to pass that test.

Sharon D. Nelson: Well, we certainly thank you for sharing your thoughts about ACEDS today and the new direction it’s taking, which we certainly like very much. We wish you well in the new job, Mary, we’ve always liked one another and I’m very happy to some someone of your stature and integrity at the head of ACEDS. So I think ACEDS has a very rosy future with you at the helm.

Mary Mack: Aw, well thank you, Sharon, I very, very much appreciate that. And I appreciate being on this wonderful show.

John W. Simek: Well that does it for this edition of Digital Detectives; and remember, you can subscribe to all of the editions of this podcasts at LegalTalkNetwork.com, or in iTunes. if you enjoyed this podcast, please review us on iTunes.

Sharon D. Nelson: And you could find out more about Sensei’s digital forensics, technology and security services at www.senseient.com. We’ll see you next time on Digital Detectives.

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