Contracting Dis-ease: Optimizing Your Contracts Process

By: Doug Kaminski
Chief Revenue Officer, Cobra Legal Solutions

Drafting, reviewing, and managing contracts has become more complex than ever these days.  The economic crisis caused by the COVID-19 pandemic prevented numerous individuals and companies from fulfilling their contracts last year, forcing mass review of those contracts to determine what recourse contracting parties could take to address the situation.  The number of contracts affected, and the costs associated with review of those contracts was, for many companies, astronomical.  Here’s what you can do to address the contract review dilemma and ensure your processes are more streamlined.

The Pandemic Contract Review Dilemma

In many contracts, it’s common to include a standard clause known as a “Force Majeure” clause, which addresses unforeseeable circumstances that prevent someone from fulfilling a contract.  French for “superior force”, Force Majeure is a common clause in contracts that may free the parties from contractual obligations as a result of an extraordinary event or circumstance beyond the control of the parties.  But there may be no ‘boilerplate’ Force Majeure clause, as each one is often the subject of negotiation between the parties.  So, many organizations had to review each of their affected contracts once the pandemic impacted those contracts to determine next steps.

Add to the challenge that the typical Fortune 1000 company maintains between 20,000 to 40,000 active contracts, so that means thousands of contracts that potentially needed review.  Then, consider the time it takes to review each contract.  Unlike document review for litigation, where review of each document takes about a minute on average, review of a single contract could potentially take several hours.

Traditional methods can’t handle the scale cost effectively.  According to BizCounsel, basic contract review can cost you anywhere from $450 to $3,000 – per contract!  And it can cost even more than that per contract for them to “redline” the contract and conduct negotiations.  The costs can add up quickly.

Taking a Managed Approach to Contracts

Part of the challenge of contract review stems from the way contracts are created in the first place – the language contained within them can vary over time or based on who is drafting the contract.  Contract lifecycle management (CLM) is the structured management of an organization’s contracts – from initiation to execution through performance and renewal to eventual expiration – to enable the organization’s approach to contracts to be streamlined and even automated.  Let’s take a look at the steps in a typical contract lifecycle:

  • Template Creation: Perhaps, the most important step begins by creating and maintaining template standards within the organization for contracts. There may be one or more templates for an organization depending on the types of contracts being managed, but the templates should be consistent to the extent possible to minimize work required downstream.
  • Contract Creation: When creating specific contracts, leveraging those templates and rules-based engines can help streamline and automate the creation process for each contract.
  • Contract Review: Establishing a consistent workflow that leverages technology to assist with the contract review can capture terms in a structured manner to support downstream analytics, while also assessing compliance with frequently changing company policies. You’ll want to document in an evergreen document: the playbook.
  • Contract Approval: In many organizations, contracts may have to go through multiple levels of approval, including management, purchasing, legal and other departments. An established and automated workflow streamlines this process.
  • Contract Execution: Physical signing of contracts these days is becoming much less common (especially since the pandemic). Use of electronic-signature platforms like DocuSign and Adobe Sign and even QR code validation is becoming the norm.  Workflows are adjusting for this new standard in contract execution.  Blockchain adds another dimension.
  • Contract Performance: The steps taken earlier in the process to capture terms in a structured manner lead to the ability to apply analytics to track performance under those contract terms and identify potential breach of terms earlier in the process to address the issues before they become critical. Tracking the performance of contracts manually is becoming obsolete.
  • Contract Renewal and Expiration: Lifecycle management concludes with the end of a contract, and analytics help here to keep track of which contracts are reaching their end cycle and provide information regarding those contracts that can be (or should be) renewed, as well as those contracts that will (or should be allowed to) expire.

The traditional “one-off” approach to contract review is inefficient and expensive.  Today, efficient contract management starts with a structured, lifecycle-based CLM approach to managing contracts from beginning to end, working with experts that can help implement and manage such an approach – at a fraction of the cost.  The next contract dilemma may be just around the corner – are you ready for it?

For more information about Cobra’s Contract Management services, click here.

There Are No Small Parts

By: Doug Kaminski
Chief Revenue Officer, Cobra Legal Solutions

In theatre, there is a saying attributed to “the father of modern acting” Konstantin Stanislavski, where he said, “there are no small parts, only small actors.”  Just as in a theatre play where every actor contributes to the play’s success, every team member in a discovery project contributes to the success of the project in terms of your ability to accomplish the discovery objectives on time and on budget.

But in a project that can involve potentially dozens of team members (or even more), how can you be sure that you’re getting the most out of your team’s efforts, down to each member of the team?  Do you have the info you need when you need it to track the activity associated with your personnel resources?

Metrics Are the Key to Successful Projects

The key to answering those questions is metrics.  Tracking metrics – as long as they’re the right metrics – helps you keep track of the status of your projects, which (in turn) helps keep the project itself on track.

Take the Review phase, which is the phase where the most human resources tend to be applied, which generally makes it (by far) the most expensive phase in eDiscovery.  Here are just some of the metrics that could be tracked for review, for the entire team or individual reviewers:

  • Documents Reviewed: The number of documents reviewed, with the ability to break down averages by reviewer, by time frame (e.g., hour, day, week, etc.) and any combination thereof.
  • Percent of Documents in Each Classification: The percentage of documents classified as responsive, non-responsive, privileged, etc., with the ability to track variances across reviewers.
  • Responsiveness Percentage Per Custodian: The percentage of responsive documents across custodians to help understand which custodians are providing the most responsive documents so that efforts can be prioritized on those custodians.
  • File Type Breakdowns: Percent of documents for each file type (e.g., email, word processing, spreadsheet) and the distribution of each across reviewers. Sometimes, the reason that certain reviewers are moving slower than others is because they have a higher concentration of difficult documents to review.
  • Review Cost Per Document: Average cost per document for review, which can include both attorney review cost and technology cost. The ability to isolate that cost to non-responsive documents can show how much time is being spent on documents not related to the case – an important metric to identify potential opportunities for improvement and cost savings.
  • Overturn Rate: Percentage of documents for which classifications are overturned in QC. This metric, when tracked by reviewer, can identify which reviewers may need additional training to ensure their classifications are on point.
  • Estimated Time to Complete: The estimated number of working days that are required to review the remaining unreviewed documents, based on a rolling average review rate. It’s vitally important to understand when you’re expected to finish, so that you can make adjustments if meeting the deadline is in jeopardy.

Those are just a few examples in one eDiscovery phase of how metrics tracking can project teams identify issues and address them quickly and proactively to keep the project on track overall.

Dashboards and Automation

Obtaining these metrics used to involve running reports periodically (such as at the end of each day) and performing calculations to measure progress.  That approach was highly manual, prone to mistakes and untimely, as you may have lost an entire day or more before you spotted a trend that needed correcting – time potentially wasted when striving to meet aggressive deadlines.  And data from those reports had to be re-entered into matter management and billing systems, taking additional time and effort to actually get paid for all that hard work.

Today, it has become important to get those metrics real-time and, in a format where the information can be quickly digested and understood.  Automated project dashboards are key to tracking progress to provide real-time insights into legal spend effectiveness and resource allocation.  And those dashboards need to be mobile friendly so that you can actually get away from your desk and live life while checking in to continue to make sure your project is on target.  Finally, metrics from the dashboard should automatically flow into matter management and eBilling solutions, streamlining the tracking and billing processes.

Are you getting the most out of your players?  They’re probably working hard, but maybe not as efficiently as they could be.  You should be able to determine just how efficiently at any time from any place and course correct as needed.  Metrics help ensure that you, as the director, deliver an award-winning performance.

For more information about Cobra’s CobraPulse® real-time metrics dashboard, click here.

That’s Not the Way We Do It Anymore

By: Doug Kaminski
Chief Revenue Officer, Cobra Legal Solutions

One of the biggest impediments to progress within organizations is the phrase “that’s the way we’ve always done it”.  As we discussed in this post, processes have to evolve to continue to be useful and productive.  And they have to leverage technology, as well as expertise in those processes to lead to improvement.  And that’s certainly true for the process of managing contracts.

How the “Nuts and Bolts” of Contract Generation Has Evolved

Believe it or not, contracts and contract law have been around since the days of the ancient civilizations of the Greek and Roman empires.  Needless to say, they didn’t have a lot of technology to leverage back then!  Fast forward a couple of millennia and there may be a few of you who can still remember the days when contracts were typed on typewriters (and liberal use of “white out” was necessary to avoid retyping large sections of those contracts).  And contracts were mailed or hand delivered to contracting parties and (of course) hand signed with a pen.  Handwritten markups in red pen were performed for changes that were needed, essentially “redlining” the contract. With each contract needing to be typed independently, the only leveraging of technology for contract generation (eventually) was – electronic typewriters for contract creation and fax machines for contract delivery – and the primary way of leveraging expertise was – faster typists.

Introducing computers into the mix made the creation of contracts more digital and enabled technology to be applied to the contract management process in a whole new way.  Now, you could create a contract in Word, copy the file and re-use it as a template, then email that to the recipient, who could print it out, sign it, scan it and email it back, within minutes.  Or that party could first “redline” suggested contract changes right within the electronic file and the parties could send it back and forth until both sides agreed on terms.  What a concept!  Imagine back then if an organization insisted that contracts should continue to be typed on a typewriter and mailed, because “that’s the way we’ve always done it”.  There were those holdouts, at least for a while.

Eventually, through the technology of electronic signatures, there wasn’t even a need anymore to print, sign and scan contracts anymore.  This technology streamlined the contracts process even more, and (especially once the pandemic enforced social distancing), eSignatures have become the standard way to sign contracts for many organizations.

How Contract Management Has Evolved

While leveraging technology and expertise has revolutionized the “nuts and bolts” of contract generation, this created a new challenge: the management of the contract lifecycle itself has lagged as some organizations have as many as 40,000 contracts to manage from the time a contract is generated until it expires.  Lack of a centralized approach to contract management has resulted in challenges for organizations ranging from inconsistency of contracts terms, inability to quickly identify which contracts are affected by changing business circumstances and huge fees for outside counsel review of contracts.  According to the Harvard Business Review, it’s been estimated that inefficient contract management causes firms to lose between 5% to 40% of value on a given deal, depending on circumstances.  Despite those challenges, many organizations have still failed to implement a centralized contract management approach.  Why?  In many cases, it’s simply because “that’s the way we’ve always done it”.

Just as the “nuts and bolts” of contract generation has evolved, so has the management of contracts throughout the lifecycle itself.  The technology for managing and automating the lifecycle of contracts has evolved considerably, leveraging machine learning and artificial intelligence capabilities to help automate the contract management process. Expertise to maximizing the use of that technology has become key to the success of contract management today.  Combining technology and expertise has improved and streamlined the contract management process through automation – from creation and tracking of templates (and individual clauses within those templates) to creation of each contract, through contract review, approval, execution, performance tracking, renewal and (eventually) expiration.

Technology + Expertise not only equals Process Improvement; it also equals Process Automation.  When it comes to the management of contracts, the excuse “that’s the way we’ve always done it” for not evolving is no longer acceptable.  Evolve your contract management process through technology and expertise to be efficient and effective to the point that you can say “that’s not the way we do it anymore.”

For more information about Cobra’s Contract Management services, click here.

How to Tackle Your Legal Operations Projects: Key Takeaways – CLOC 2020 Global Institute Snapshot

By: Kassi Burns, Esq., RCA
VP of Legal Professional Services, Cobra Legal Solutions

One of my prior CLOC Global Institute blog posts summarized highlights from sessions on storytelling with contract data. This post will share key takeaways from the session How to Tackle Your Legal Operations Projects, which really gets to the heart of legal operations: project management. Read more

Trust the Process

By: Doug Kaminski
Chief Revenue Officer, Cobra Legal Solutions

Trust the Process, Because Processes Have to Evolve to Lead to Improvement.

We’re in the midst of the NBA basketball playoffs and the top seed in the Eastern Conference this year is the Philadelphia 76ers. The 76ers used to be bad – really bad. They won just ten games in an 82-game season a mere five years ago. Back then, their general manager talked about trusting the process to building a better team and one of his first draft picks, Joel Embiid, was a player that (due to injuries) didn’t even play for two seasons. Echoing their GM, Embiid encouraged fans to “trust the process”. Embiid became the player most associated with the process and even adopted “The Process” as his nickname. When he finally played, he developed into one of the best players in the NBA.

Sometimes, processes have to evolve to enable organizations to do things better. We may “trust the process”, but if we don’t continue to evolve the process, that process may cause us to fall behind and be less efficient than we can be. From an eDiscovery standpoint, processes are always evolving. Here are examples of how eDiscovery processes have evolved in recent years.

EDISCOVERY PROCESS EVOLUTION

In looking at how eDiscovery processes have evolved, let’s take a look at them phase-by-phase:

Information Governance: The process associated with InfoGov used to be primarily procedural, which is why the term “records management” used to be synonymous with “information governance”. Not anymore. Now, effective information governance leverages technology to enable companies to identify where important and sensitive data is located within the company and also helps identify data that can be defensibly deleted. You can’t have an effective InfoGov program any more without leveraging technology.

Identification and Preservation: As we recently discussed in this post, a recent phenomenon in legal hold management is to identify, lock down and preserve ESI in place in the cloud enterprise systems that organizations use every day to govern their information. This is not only the evolution of one process – it’s the linking of three processes more and more into one: InfoGov, Identification and Preservation. Now, that’s process improvement!

Collection: Collection of ESI used to be performed at a custodian level, and it often had to performed in person, by collection specialists going to offices to physically collect entire data stores from custodians, which was inefficient and expensive. Today, collections are performed largely remotely and because of data preserved in place, can be limited to targeted data likely to be responsive to the goals for the discovery effort. Mass collections are no longer required.

Processing: This phase even has the word “process” in it. Remember the days when processing platforms used to be separate from review platforms and you had to transfer data from the processing platform to the review platform – manually? Now, they’re integrated and processing has continued to become more efficient and effective as computer processors (there’s what word again) become more powerful.

Analysis: The ability to perform analytics on the data associated with your eDiscovery projects has grown by leaps and bounds. Dashboards are common these days at a project level or even across all projects or cases. Artificial intelligence analytics are being introduced in more and more areas of the eDiscovery workflow. This process may be evolving more than any other.

Review: Certainly, review has evolved considerably with review teams able to work remotely, able to leverage predictive coding technologies and able to track metrics associated with the review process to continue to improve the efficiency and effectiveness of review.

Production: Remember how productions used to be delivered? In a series of CD or DVD disks? Now, they can be delivered securely via secured file transfer protocols (SFTP) without leaving your desk.

Presentation: Even presentation has evolved – during the pandemic, we are conducting more hearings, depositions and even some trials via web conferencing. Despite the challenges of a pandemic, process improvement still found a way to get the job done and virtual presentations events are here to stay.

Process improvement doesn’t happen in a vacuum – it happens through experts understanding process optimization and how to leverage technology to make those processes more efficient and cost effective. There are experts who are immersed in eDiscovery processes and workflows, who understand technology and work with their clients in order to improve processes for those clients. Technology + Expertise = Process Improvement. So, trust the process. It worked for Joel Embiid and the 76ers!

For more information about Cobra’s Dedicated Resources and Legal Process Optimization services, click here.

The Lines Between Information Governance and Legal Hold Are Becoming Blurred – and That’s a Good Thing

By: Doug Kaminski
Chief Revenue Officer, Cobra Legal Solutions

If you’re familiar with today’s Electronic Discovery Reference model (EDRM), you know that 1) the model shows distinct lines between each of the phases and 2) the far left-side of the model actually includes a model within the EDRM model.  The Information Governance Reference Model (IGRM) recently replaced a circle that simply said “Information Governance”.  So, the EDRM model now actually gives you two models in one!

Regardless of whether it’s represented by a circle or the entire IGRM model, the Information Governance phase has been the only phase represented by a circle for years.  Why?  Because it is the only phase considered to be enterprise wide and perpetual.  Today, however, the lines for where InfoGov ends and Preservation and Legal Hold begins are becoming blurred.  And that’s a good thing.  Here’s why.

The Two Components of Legal Hold

Though we talk about “legal hold” as one process, there are actually two components of legal hold that many organizations grapple with to manage the duty to preserve potentially responsive ESI today.  With the challenges that many organizations face today in terms of volume and variety of sources of ESI and more remote workforces, both components are essential today to effectively manage your preservation and legal hold workflows.

Legal Hold Notification Management

When the duty to preserve ESI commences (which can often occur even before the case begins), it’s important for the party with ESI responsive to the case to notify potential custodians that they need to preserve that potentially responsive ESI in the form of a legal hold notice.  Failure to do so could lead to spoliation of ESI and possible sanctions.  You not only want to issue hold notices, but you also want to confirm that each custodian has received and acknowledged their duty to preserve the ESI subject to legal hold.  This not only means refraining from actively deleting ESI, but it also means suspending automatic deletion programs for email, texts, chat messages or any other form of ESI for which an auto-delete program may have been implemented.

Legal hold notification becomes a lot more challenging when you have a large number of potential custodians and/or an extended time frame for the case.  The larger the custodian pool, the more difficult it is to track confirmation from each custodian that they have read and understand the hold notice.  The longer the case goes, the more likely you will have to periodically remind those custodians of their preservation obligation by re-issuing hold notices (and confirming receipt and understanding once again) during the case.

Managing this process via spreadsheets can be time consuming, complicated and unwieldy, so it makes sense to automate the notification process working with a provider to implement a legal hold solution that enforces a defensible and repeatable process for legal hold notification. You need someone experienced who can help you leverage the legal hold solution to automate the delivery and tracking of hold notices, provide template examples to ensure you’re covering all of the bases in your instructions and also provide audit trails, powerful dashboards and robust reporting to enable you to know where you stand on legal hold activities to save considerable time and cost in managing legal hold notifications.

Preservation in Place Legal Hold Management

The more recent phenomenon in legal hold management is to lock down and preserve ESI in place in the cloud enterprise systems that organizations use every day to govern their information.  This is where working with a provider that can help you get the most out of your legal hold solution also enables your organization to begin to benefit from blurring the lines between InfoGov and Legal Hold.  The ability for the legal hold solution to integrate with the systems your organization uses every day to track and manage communications and work product – such as Office365, human resources (HR) and even matter management platforms – and automatically preserve data in place, streamlines previously manual processes that were necessary to preserve that data.  This saves considerable time and cost while also reducing the risk that come with manual processes.

In doing so, your legal hold solution facilitates key InfoGov activities, such as defensible deletion.  Automatically keeping track of what ESI can’t be deleted when preserved in place and what ESI becomes available to be deleted (once the duty to preserve no longer exists) simplifies the defensible deletion process, leading to better overall organizational data hygiene.  InfoGov and Preservation/Legal Hold have become interwoven instead of the separate and distinct processes they were before.

Effective Legal Hold Management Today

As noted above, an effective legal hold solution today 1) supports the management of legal hold notifications, 2) integrates with cloud enterprise systems to preserve potentially responsive ESI in place, and 3) provides a defensible audit trail.  And that solution should be part of an overall eDiscovery approach that supports collection, processing, analysis, review and production as well.  Perhaps it’s time to think beyond the event driven EDRM model and look at this holistically – the lines between phases are getting very blurry!

For more information about Cobra Legal Hold powered by Relativity (and other Cobra eDiscovery services), click here.

Definition of Team

By: Kendra Smith
VP of Legal Technology, Cobra Legal Solutions

As I sat down to write this blog – fingers ready in position on keyboard with a fresh cup of coffee at my side – I froze; I suddenly had nothing to say, nothing to talk or write about. It felt like all of the pressure to write down some great wisdom continued mounting with every blink of the cursor which sat mocking me at the top of a blank page. In the office, everyone would attest that I had something to say about, well, everything. So how was it that now I had no words? 

That was until we had a candidate come in for an interview. I suddenly knew what I had to write about! You may not get any great wisdom from this, but stick with me here. 

Interview Day at Cobra is unlike any interview process I have ever been through or been involved in. I could hardly believe the process when I was interviewed for my position at Cobra. I left thinking, is this for real? Now, Interview Day is one of my favorite days at Cobra, and look forward to interviewing candidates every time. But of course, unless you are a prospective employee, why do you care about our interview process? I’m getting there, I promise. 

Interviews at Cobra go something like this – the team sits down in a big circle together with the candidate in the lounge area of our office. The conversation usually begins with our CEO, Candice “The Boss” Corby, giving a quick introduction to the company and how this “big circle” is about to go down. Then, she always leads with this: “We will start with everyone telling you WHY Cobra?” Suddenly, we are transported back to high school or college at the pep rally the night before the biggest football game of the year! 

There is none of that awkward silence, darting eyes or stressed glances looking to each other begging someone to “go first.” Like kids on Christmas, no one can wait to go first. With each story from members of the Cobra team, the momentum builds and each person’s answer builds-off the one before. 

These days are energizing and overwhelming – and that is from the perspective of the interviewer. As the interviewee, you feel this amazing energy and this overwhelming desire to throw on your pads and join the team on the field to ‘Win one for the Gipper.’ 

Working with this collaborative team ignites my passion and drive for our business – and not just because we have the best company culture and the best place to work EVER; but because we are a group of people who are top performers in whatever our role, who all want to do and be better, who want to drive workflows to efficiency, who want to optimize processes, and who thrive surrounded by like-minded people. We have core values that are not just words but personal principles to each of us: Collaboration, Transparency, and Partnership. 

Each time I am sucked into the vortex that is Interview Day, at some point it occurs to me that I wish every one of our current clients, potential clients, perspective employees, or pretty much anyone who needs something to believe in could see this. It is absolutely infectious. Cobra is the purest definition of team. It feels like we all suddenly put on capes and are ready to save the world one document production at a time. 

Our interviewee called me a couple days later after we had made him an offer. He stumbled around a bit trying to find the words to ask me, “is this for real!?” He told me it all sounded so genuine and authentic, but he wanted to have “real talk”, outside of the group setting. He was at a loss for words to describe how impassioned everyone was. I assured him it was for real, that what he saw that day during his interview was our everyday. We don’t sit around and talk about how awesome we are, ok sometimes we do a little, but every day we all WANT to be there. And every day, we live out Collaboration, Transparency, and Partnership. 

 

 

 

 

Strategic Planning for New Legal Operations Leaders: Key Takeaways – CLOC 2020 Global Institute Snapshot

By: Kassi Burns, Esq., RCA
VP of Legal Professional Services, Cobra Legal Solutions

In this installment of the CLOC Global Institute series, I’m sharing key takeaways from the session Strategic Planning for New Legal Operations Leaders. In this post, we look back to the beginning of the legal operations journey with guidance by Rachita Maker with Tata Communications. In her session, she shares her experience as a new legal operations leader. Read more

Contract Data Storytelling: Key Takeaways – CLOC 2020 Global Institute Snapshot

By: Kassi Burns, Esq., RCA
VP of Legal Professional Services, Cobra Legal Solutions

Like so many other organizations, CLOC recently hosted its annual conference virtually. This year’s Global Institute maintained some of the features attendees would expect from a conference: general counsel sessions, round tables and breakout sessions, and networking lounges.  Read more

eDiscovery Case Law Update, in re: Corker v. Wholesale, et al.

By: Omen Safavi, Esq.
Professional Services Supervising Attorney, Cobra Legal Solutions

Cases can be won or lost with the proper use of discovery. Although discovery has its roots in early law, the changing face of technology and the law itself has modified the way discovery is handled.

Read more