How to Choose An EDD Trainer

Even the most seasoned litigator may be puzzled by such arcane terminology as deduplication, metatags, blowbacks and concept querying. To make sense of the electronic-data discovery (EDD) process in general, and to further ensure that the litigator is adept in using the selected litigation review and production tools, selecting a trainer with the appropriate skills and pedagogical technique, combined with “real world” experience in setting up review workflows and meeting production deadlines, is nothing short of critical.

As a certified trainer in more than several litigation-support tools including Introspect (an electronic data online review tool), CaseMap, Concordance and Summation ' as well as having taught courses in legal technology to paralegal certificate students and law students for more than a decade ' I've been able to hone my teaching skills. Also, through feedback from my students and (at times) trial and error, I understand what works and what doesn't when trying to get those litigators and paralegals to “get it.” It is my privilege to share what I have learned and have had the opportunity to put to what I believe has been successful practice in e-Discovery Law & Strategy.

The Well-Rounded Trainer

I've found that a “well rounded” trainer makes an electronic-evidence trainer particularly effective. What makes a trainer well-rounded? Well-roundedness is a general description of solid competency ' and often more, in many disciplines. Ideally, in the realm of e-discovery, a trainer should understand the following disciplines:

• The discovery process;
• The rules of evidence;
• The type of data that are commonly subject to electronic discovery;
• The sources of such data;
• The applications being utilized to review the electronic data; and
• The specific discovery goals of the trainee.

Of course, as I referred to above, there's no substitute for practical experience, so this factor should be a mainstay and, ideally, coupled with the six competencies listed above, because understanding stands alone, but practice ' experience ' puts that understanding to use, and polishes it for the advantage of his or her clients.

As a practicing attorney, instructor, electronic-evidence expert and legal-tech junkie, I've been told that I possess the skills to be an effective trainer. That being said, each time I walk into a war room or classroom to deliver an e-discovery session, I'm filled with a sense of doubt and lack of confidence that I must overcome to really shine during the training session. I always worry that one of my trainees will be a product guru, and will take it upon herself or himself to point out and correct my mistakes. These concerns are human, yet they disserve the end user. In fact, I should hope for such a trainee because the challenges and objections about which I'm anxious on these occasions are certain to sharpen my skills and provoke debate and might shine a light on important facets of the application or process, or both.

So, insecurities aside, what real-world knowledge should the ideal trainer possess and impart to her trainees? Below is a list of just a few.

The Discovery Process

An effective trainer must be able to convey the mechanisms that underlie the entire discovery process ' from receipt of the request for production and the harvesting that such a request invokes, all the way through preprocess filtering, electronic-discovery processing, indexing, rendering, querying, review, categorization and production. Each of these steps can consist of a half-day's course in and of itself.

Grasp Of Complex Rules

The astute trainer has a grasp of the complex rules of evidence that formulate the data-discovery process. These form the road map that the trainer will use to navigate any education session, or to become a trainer in the first place. For instance:

Can an instant message overcome a hearsay objection?

• What is rule FRCP 30(b)(6)?
• How does FRE '407 affect counsel's ability to offer a native file into evidence?
• What e-data spoliation arguments are likely to lead to a finding of inadmissibility?
• Is a native production required pursuant to local rules of court?
• What evidentiary effect does a metadata-scrubbing utility have on the laying of the foundation of certain e-data as evidence?
• Singly or combined, these are some of the basics ' complex as they may be anyway ' that the trainer must command.

At Least Some Seasoning

This is a nice pinch of an ingredient in the e-discovery trainer recipe. If a law firm, government agency or corporate legal department is really fortunate, the trainer will have actual experience with the court, and in the law and motions department. Imagine the presentation, the juicy tastiness of a trainer's menu of talents and reliable experience if such a morsel as this comes from him or her: “Well, the Honorable Judge Smith never entertains a motion to quash an electronic-evidence production request, so don't waste your time.” Such insight is priceless.

Leading The Team

Another critical real-world skill that an EDD trainer must possess is the ability to quarterback a review. Will the review start with paralegals performing objective coding and then be passed onto the attorneys for subjective analysis? Will review assignments be rendered to visual representations on the user interface (such as a folder entitled “paralegal review due by July” with a series of nested subfolders bearing the paralegals' names and containing their review document population)? Would it be more effective to separate the review by legal issues than document response sets received? These are the plays that the well-schooled and practiced e-discovery trainer/team quarterback calls and runs efficiently.

Applying application knowledge

The trainer must understand how certain applications work together. I recently worked on a matter in which Rook Digital performed the harvesting; Ibis did the EDD; Ikon copied, scanned and put the paper through optical character recognition reading; Attenex was used for a concept-based review; and Introspect was used as the litigation-production tool – with Case Map and Sanction used at the mandatory arbitration. All of these applications contain the ability to “talk to one another” at some level. If the trainer doesn't understand how the client's chosen technologies integrate, then one of the most powerful aspects of the litigation arsenal will not be unleashed, and that's no way to go into a skirmish to win.

Certifiably Proficient

Many e-discovery applications have certification programs. It's a good idea to choose a certified trainer as opposed to a noncertified one. To be fair, some e-discovery certification programs are, in my opinion, questionable at best. I specifically refer to the recent rash of general “Electronic Evidence Certification Programs” offered (for ridiculous enrollment fees) that purport to make the attendee into the uber-EDD user in a few sessions. But, when you pick the tinsel off the gift wrap, it's painfully apparent that such programs are thinly veiled efforts to develop brand loyalty in the “student” for the EDD vendor, and hardly any gift at all.

Deserving A Juicy Red Apple

Other things that make a trainer effective have to do with his or her teaching style. If we think back to the classes in college, or even high school, in which we gained the most insight and useful skills for later in life, it's almost certain that the instructor's style was key to our success in that course, and important in implementing skills we learned in that class for success later on. In the many trainings I've done at law firms and government agencies, I've found that no one likes a talking head. Interactive sessions where the participants are encouraged to have a dialogue with one another and in which that dialogue includes the instructor make for much livelier, and educationally worthwhile, sessions.

Also, it's often the case that certain attendees have mastered an area of the electronic data discovery solution that may make it appropriate to invite them to instruct their colleagues about how that particular item or function can be managed. Good trainers do not arrive empty-handed; in addition to providing current and tailored literature that should not simply be handouts of an electronic-discovery vendor's marketing materials, the effective trainer will bring prizes that can be handed out to the trainees who answer a difficult question correctly or who seem to really catch on.

Consider this ' the possible payback for all involved in the classes of a skilled, effective trainer: He or she will bring notepads and pens for those participants who may not be taking notes on a laptop. Sure, paralegals and lawyers have access to pens and notepads, but the considerate thing to do is to bring them along. This ensures that everyone can take notes while minimizing delays when everyone runs back to desks or cubicles to dig up notetaking media.

It's also good advice, I think, that a trainer relate some war stories as he or she instructs. “I saw a firm fall flat on its face when it failed to confirm deduplication,” would be a statement certain to attract attention, as trainees tend to be interested in real-world examples and by learning from the mistakes of others – so that they can avoid being the subject of war stories in other trainings. Of course, some of the real-world stories should focus on what others did right and what techniques and tools were effective, and not just on the spectacular shortcomings.

Pretraining Sleuthing

The superior trainer will inquire about why the client wants training when it's requested. Some queries to ponder lobbing:

• Is the training case-driven?
• Is the training part of a business plan but not tied to any litigation in particular?
• Does everyone simply go through training as he's brought on board and the session then is the result of a routine?

The answers to these questions will highlight the firm's intentions for training. If the training is indeed linked to a particular case, then the trainer should check with the appropriate attorney or administrator as to whether or not information about the matter can be revealed. Often, the cause of action or the issues at stake, once revealed, can drive the training in a direction that is tailored toward successful results. For example, if it surfaces that the firm to be trained represents a physician in a malpractice suit, then the trainer would be pretty much obligated to discuss doctor-patient privilege, and how one can query to isolate such privileged e-mail messages or electronic documents. Waivers to the privilege can be taught as well, and an emphasis on the link to CaseSoft's Time Map application (commonly used to create timelines of alleged medical malpractice) can be stressed.

Sometimes, a firm will allow a trainer access to “real” data from the case to be the subject of the training session. This obviously will help retain the attention of the staff being trained, as they have a vested interest in the training-session subject matter and aren't simply working, and possibly interacting, with a canned demo. Of course, the trainer should know that the real data should be a mirrored subset, because the actual data to be treated as the markups, coding, redactions and sorting during a training session may not be what is most beneficial for such data when “it's for real.”

Conclusion

It's fair to say that the successful trainer is someone who is knowledgeable, creative, engaging, experienced, and truly cares for his or her students. This should come as no surprise and this maxim, of course, is not relegated to the world of electronic data discovery.

I hope that a person charged with selecting a vendor can put information from trainers ' such as in this article ' to use, and gain some insight to what factors tend to make the better training candidate, as he or she shops for certified trainers. Good luck. Class dismissed.

Even the most seasoned litigator may be puzzled by such arcane terminology as deduplication, metatags, blowbacks and concept querying. To make sense of the electronic-data discovery (EDD) process in general, and to further ensure that the litigator is adept in using the selected litigation review and production tools, selecting a trainer with the appropriate skills and pedagogical technique, combined with “real world” experience in setting up review workflows and meeting production deadlines, is nothing short of critical.

As a certified trainer in more than several litigation-support tools including Introspect (an electronic data online review tool), CaseMap, Concordance and Summation ' as well as having taught courses in legal technology to paralegal certificate students and law students for more than a decade ' I've been able to hone my teaching skills. Also, through feedback from my students and (at times) trial and error, I understand what works and what doesn't when trying to get those litigators and paralegals to “get it.” It is my privilege to share what I have learned and have had the opportunity to put to what I believe has been successful practice in e-Discovery Law & Strategy.

The Well-Rounded Trainer

I've found that a “well rounded” trainer makes an electronic-evidence trainer particularly effective. What makes a trainer well-rounded? Well-roundedness is a general description of solid competency ' and often more, in many disciplines. Ideally, in the realm of e-discovery, a trainer should understand the following disciplines:

• The discovery process;
• The rules of evidence;
• The type of data that are commonly subject to electronic discovery;
• The sources of such data;
• The applications being utilized to review the electronic data; and
• The specific discovery goals of the trainee.

Of course, as I referred to above, there's no substitute for practical experience, so this factor should be a mainstay and, ideally, coupled with the six competencies listed above, because understanding stands alone, but practice ' experience ' puts that understanding to use, and polishes it for the advantage of his or her clients.

As a practicing attorney, instructor, electronic-evidence expert and legal-tech junkie, I've been told that I possess the skills to be an effective trainer. That being said, each time I walk into a war room or classroom to deliver an e-discovery session, I'm filled with a sense of doubt and lack of confidence that I must overcome to really shine during the training session. I always worry that one of my trainees will be a product guru, and will take it upon herself or himself to point out and correct my mistakes. These concerns are human, yet they disserve the end user. In fact, I should hope for such a trainee because the challenges and objections about which I'm anxious on these occasions are certain to sharpen my skills and provoke debate and might shine a light on important facets of the application or process, or both.

So, insecurities aside, what real-world knowledge should the ideal trainer possess and impart to her trainees? Below is a list of just a few.

The Discovery Process

An effective trainer must be able to convey the mechanisms that underlie the entire discovery process ' from receipt of the request for production and the harvesting that such a request invokes, all the way through preprocess filtering, electronic-discovery processing, indexing, rendering, querying, review, categorization and production. Each of these steps can consist of a half-day's course in and of itself.

Grasp Of Complex Rules

The astute trainer has a grasp of the complex rules of evidence that formulate the data-discovery process. These form the road map that the trainer will use to navigate any education session, or to become a trainer in the first place. For instance:

Can an instant message overcome a hearsay objection?

• What is rule FRCP 30(b)(6)?
• How does FRE '407 affect counsel's ability to offer a native file into evidence?
• What e-data spoliation arguments are likely to lead to a finding of inadmissibility?
• Is a native production required pursuant to local rules of court?
• What evidentiary effect does a metadata-scrubbing utility have on the laying of the foundation of certain e-data as evidence?
• Singly or combined, these are some of the basics ' complex as they may be anyway ' that the trainer must command.

At Least Some Seasoning

This is a nice pinch of an ingredient in the e-discovery trainer recipe. If a law firm, government agency or corporate legal department is really fortunate, the trainer will have actual experience with the court, and in the law and motions department. Imagine the presentation, the juicy tastiness of a trainer's menu of talents and reliable experience if such a morsel as this comes from him or her: “Well, the Honorable Judge Smith never entertains a motion to quash an electronic-evidence production request, so don't waste your time.” Such insight is priceless.

Leading The Team

Another critical real-world skill that an EDD trainer must possess is the ability to quarterback a review. Will the review start with paralegals performing objective coding and then be passed onto the attorneys for subjective analysis? Will review assignments be rendered to visual representations on the user interface (such as a folder entitled “paralegal review due by July” with a series of nested subfolders bearing the paralegals' names and containing their review document population)? Would it be more effective to separate the review by legal issues than document response sets received? These are the plays that the well-schooled and practiced e-discovery trainer/team quarterback calls and runs efficiently.

Applying application knowledge

The trainer must understand how certain applications work together. I recently worked on a matter in which Rook Digital performed the harvesting; Ibis did the EDD; Ikon copied, scanned and put the paper through optical character recognition reading; Attenex was used for a concept-based review; and Introspect was used as the litigation-production tool – with Case Map and Sanction used at the mandatory arbitration. All of these applications contain the ability to “talk to one another” at some level. If the trainer doesn't understand how the client's chosen technologies integrate, then one of the most powerful aspects of the litigation arsenal will not be unleashed, and that's no way to go into a skirmish to win.

Certifiably Proficient

Many e-discovery applications have certification programs. It's a good idea to choose a certified trainer as opposed to a noncertified one. To be fair, some e-discovery certification programs are, in my opinion, questionable at best. I specifically refer to the recent rash of general “Electronic Evidence Certification Programs” offered (for ridiculous enrollment fees) that purport to make the attendee into the uber-EDD user in a few sessions. But, when you pick the tinsel off the gift wrap, it's painfully apparent that such programs are thinly veiled efforts to develop brand loyalty in the “student” for the EDD vendor, and hardly any gift at all.

Deserving A Juicy Red Apple

Other things that make a trainer effective have to do with his or her teaching style. If we think back to the classes in college, or even high school, in which we gained the most insight and useful skills for later in life, it's almost certain that the instructor's style was key to our success in that course, and important in implementing skills we learned in that class for success later on. In the many trainings I've done at law firms and government agencies, I've found that no one likes a talking head. Interactive sessions where the participants are encouraged to have a dialogue with one another and in which that dialogue includes the instructor make for much livelier, and educationally worthwhile, sessions.

Also, it's often the case that certain attendees have mastered an area of the electronic data discovery solution that may make it appropriate to invite them to instruct their colleagues about how that particular item or function can be managed. Good trainers do not arrive empty-handed; in addition to providing current and tailored literature that should not simply be handouts of an electronic-discovery vendor's marketing materials, the effective trainer will bring prizes that can be handed out to the trainees who answer a difficult question correctly or who seem to really catch on.

Consider this ' the possible payback for all involved in the classes of a skilled, effective trainer: He or she will bring notepads and pens for those participants who may not be taking notes on a laptop. Sure, paralegals and lawyers have access to pens and notepads, but the considerate thing to do is to bring them along. This ensures that everyone can take notes while minimizing delays when everyone runs back to desks or cubicles to dig up notetaking media.

It's also good advice, I think, that a trainer relate some war stories as he or she instructs. “I saw a firm fall flat on its face when it failed to confirm deduplication,” would be a statement certain to attract attention, as trainees tend to be interested in real-world examples and by learning from the mistakes of others – so that they can avoid being the subject of war stories in other trainings. Of course, some of the real-world stories should focus on what others did right and what techniques and tools were effective, and not just on the spectacular shortcomings.

Pretraining Sleuthing

The superior trainer will inquire about why the client wants training when it's requested. Some queries to ponder lobbing:

• Is the training case-driven?
• Is the training part of a business plan but not tied to any litigation in particular?
• Does everyone simply go through training as he's brought on board and the session then is the result of a routine?

The answers to these questions will highlight the firm's intentions for training. If the training is indeed linked to a particular case, then the trainer should check with the appropriate attorney or administrator as to whether or not information about the matter can be revealed. Often, the cause of action or the issues at stake, once revealed, can drive the training in a direction that is tailored toward successful results. For example, if it surfaces that the firm to be trained represents a physician in a malpractice suit, then the trainer would be pretty much obligated to discuss doctor-patient privilege, and how one can query to isolate such privileged e-mail messages or electronic documents. Waivers to the privilege can be taught as well, and an emphasis on the link to CaseSoft's Time Map application (commonly used to create timelines of alleged medical malpractice) can be stressed.

Sometimes, a firm will allow a trainer access to “real” data from the case to be the subject of the training session. This obviously will help retain the attention of the staff being trained, as they have a vested interest in the training-session subject matter and aren't simply working, and possibly interacting, with a canned demo. Of course, the trainer should know that the real data should be a mirrored subset, because the actual data to be treated as the markups, coding, redactions and sorting during a training session may not be what is most beneficial for such data when “it's for real.”

Conclusion

It's fair to say that the successful trainer is someone who is knowledgeable, creative, engaging, experienced, and truly cares for his or her students. This should come as no surprise and this maxim, of course, is not relegated to the world of electronic data discovery.

I hope that a person charged with selecting a vendor can put information from trainers ' such as in this article ' to use, and gain some insight to what factors tend to make the better training candidate, as he or she shops for certified trainers. Good luck. Class dismissed.