Saturday, December 31, 2011

Happy New Year

Joe, Tony, Jen and I would like to thank everyone for supporting our blog. Happy New Year from all of us at the Litigation Support Technology and News Blog.

How Will eDiscovery Impact Businesses In 2012?

An article by Barry Murphy published by the website.

This article discusses the impact of eDiscovery on business, and looks at some issues of concern for the coming year.

The article discusses the following topics:
  • Big opportunities for companies to leverage The Cloud for Information Governance, but with lingering eDiscovery concerns. 
  • The real emergence of the eDiscovery platform, allowing companies to truly manage eDiscovery as a business process. 
  • The emergence of Information Management platforms. 
  • Social media takes the market by storm and will be an intersection point for marketing, compliance, and eDiscovery. 
  • Predictive Coding goes mainstream. 
  • More Consolidation in the eDiscovery market. 
  • Corporations continue to get smarter about eDiscovery.

Friday, December 30, 2011

Secrets of Search – Part III

An article by Ralph Losey on his blog e-Discovery Team.

This article provides additional information regarding the use of keyword searching, and follows two earlier articles on this same topic.

The article begins recapping the earlier secrets that were discussed in the prior series, including many inadequacies of keyword search methodologies.  The previously revealed secrets included the following:  keyword searching is ineffective; gold standards used to measure the success of attorney reviews were flawed; and humans are very poor at performing effective review for relevancy and privilege.

The article goes on to further state, "Requesters who demand production with only machine review, and any responders foolish enough to comply, have not understood the third secret. It is way too risky to turn it allover to the machines. They are not that good! The reports of their excellence have been grossly over-stated. Humans, there is need for you yet."

The article goes on to provide a fourth secret....relevant is irrelevant. " big data collections, I could care less about merely relevant documents. Their only purpose is to lead me to highly relevant documents. Moreover, as we will see in the fifth and final secret, I only care about a handful of those."

The article goes on to provide analysis of the Federal Rules of Civil Procedure
and Federal Rules of Evidence, and how they impact the requirements for disclosure of evidence.  The author makes a case why "all relevant" evidence is not what the rules will always impose as the standard.

The article then turns of the fifth secret...the rule of 7...Seven Plus or Minus Two.  As the author states, "...this is the first time I have written at length on the magic power of seven, plus or minus two. I hesitate to go to this deep place of information transmission and cognitive limitations, but, in order to keep the search for truth and justice on track, we really have no choice. We must, like the Pythagoreans of old, consider the significance of the number seven and its impact on our work, especially on our conceptions of proportionality.

The fifth secret of search is based on the legal art of persuasion and the limitations of information transmission. The truth is, no jury can possibly hold more than five to nine documents in their head at a time.

It is a waste of time to build a jury case around more documents than that. Judges who are trained in the law, and are quite comfortable with documents, can do a little better, but not that much. In a bench trial you might be able to use eight to twelve documents to persuade the skilled judge. But even then, you may be pushing your luck."

The article goes on to discuss the fact that computers can add to the document count, however this is not necessarily the goal that a proper document review should be seeking to accomplish.

The article goes on to point out, "There is a key lesson for e-discovery in the trial lawyer wisdom of seven. To be useful discovery must drastically cull down from the millions of ESI files that may be relevant, to the few hundred that are useful, and the five or nine really needed for persuasion. Culling down from millions to only tens of thousands is not serving the needs of the law. It is a pointless waste of resources, a waste of client money. A production of tens of thousands of documents, not to mention hundreds of thousands, is unjust, slow and inefficient."

In addition, further wise advice is provided, "Even if well-intentioned, many vendors (and lawyers) don’t understand that the law requires only reasonable efforts, and proportional efforts, not perfect or exhaustive efforts. They don’t understand the basic limitations of a trial or cumulative evidence."  As the author states, the review needs to be proportionate to the specific circumstances of the case, and often this thought is lost during the effort to produce relevant information to the opposing side.

E-Discovery Search Terms: What Are Reasonable E-Discovery Search Parameters?

An article by Mike Hamilton, J.D. posted on the e-Discovery Beat website.

This article provides information regarding the lessons learned from the case  I-Med Pharma, Inc. v. Biomatrix, Inc.

This article shows examples of discovery requests for keyword search terms that were deemed to be overly broad.

The article states that certain factors must be considered to determine if search requests are reasonable, including:
  1. Needs of the case
  2. Amount in controversy
  3. Each parties’ resources
  4. Importance of the issues in the action
  5. Importance of the discovery in resolving the issues
The article further states, "When evaluating the reasonableness of search terms, the court will consider a variety of factors, including:

  • Scope of documents to be searched and whether the search is restricted to specific custodians or data sources
  • If date restrictions are imposed for the search
  • “Whether the search terms contain proper names, uncommon abbreviations, or other terms unlikely to occur in irrelevant documents”
  • “Whether the number of results obtained could be practically reviewed given the economics of the case and the amount of money at issue”"

There is Only One Way to Rock Search Terms

An article by Joshua Gilliland, Esq. posted on his blog the Bow Tie Law Blog.

The article discusses the case of  In Re National Association of Music Merchants, Musical Instruments and Equipment Antitrust Litigation.  In this case the court refused to permit additional requested search terms during the discovery phase of the litigation.

After a partial initial review of the electronically stored information, based upon search terms that were agreed upon by the parties, the plaintiff sought additional search terms seeking acronyms that were not part of the initial search requests.  The defendants objected based on several grounds, including costs, delays, plaintiffs failure to raise timely objections to defendants plans, and the failure of the plaintiffs to cooperate in prior meet and confers.

The article provides information regarding the courts judgement in this dispute, "Moreover, “[W]hile key word searching is a recognized method to winnow relevant documents from large repositories, use of this technique must be a cooperative and informed process.” In re Nat’l Ass’n of Music Merchs., at *21-22, citing In re Seroquel Products Liability Litigation, 244 F.R.D. 650, 662 (M.D. Fla. 2007).

The Court stated that the “preferable” method to reduce challenges to search terms is a “full and transparent discussion among counsel of the search terminology.” In re Nat’l Ass’n of Music Merchs., at *22, citing The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 204 (Fall 2007)."

In addition, the article states, "The Court held the Plaintiff had “ample opportunity to obtain discovery regarding abbreviations and acronyms” and that the burden and expense of searching the abbreviations/ acronyms outweighed its likely benefit. In re Nat’l Ass’n of Music Merchs., at *22-23, citing Fed. R. Civ. P. 26(b)(2)(ii), (iii)."

Social Media Discovery: It's Not So Different After All

An article by Cris Whitman on the LeClair Ryan website on the eDiscovery 4-1-1 Newsletter.

This article discusses social media networks, and the task of handling eDiscovery preservation and production requests for social media evidence.

The article states, "Although it is not explicitly stated in the amendments, one can reasonably infer that "electronic documents and data" include social media content. Regardless of form, the guiding principle for discoverability is the same -- documents and data are discoverable if relevant to a claim or defense. As such, successful strategies for obtaining social media content should first and foremost be focused on the relevant content."

The article discusses public content as well as private content.  Thea article warns, "...the investigation should never include using deceptive tactics to access social network content, such as impersonating a "friend" to gain access to a user's private profile information."

The article further states, "Courts have found the information on social media pages to be within the control of the content owners and that there is an obligation to produce relevant social media content. In party discovery, an objection to a request for social media content on "privacy" grounds is unlikely to be successful. The rules of evidence define the scope of discovery, in which relevance is the controlling factor. Relevant information -- regardless of whether it comes from a locked filing drawer, a personal email account or a "private" social media page -- is discoverable."  The article provides footnotes throughout the writing, providing additional source materials on this topic.

Thursday, December 29, 2011

Questioning Courts' Deference to Broad Electronic Searches

An article by Peter D. Hardy and Abraham Rein published by the Legal Intelligencer, and posted on and the LTN webpage.

The article discusses the Fourth Amendment and looks at search warrants issued for electronically stored information during criminal investigations.

The article states, "Many courts acknowledge Fourth Amendment concerns but nonetheless proceed to embrace, implicitly or explicitly, the following notion: Because investigators do not know in advance where any contraband is located, practical considerations allow them to examine every electronic folder and document seized, however briefly, to rule out the possibility that it contains evidence sought by the warrant.

A recent opinion by the 6th U.S. Circuit Court of Appeals, United States v. Richards, has continued this trend toward sanctioning broad searches and did so by citing heavily to an opinion issued earlier in 2011 by the 3rd Circuit, United States v. Stabile."

The article further discusses another case, United States v. Comprehensive Drug Testing Inc., and the article states that the case, "...imposed several procedural requirements on the government as to computer searches. The court upheld three orders granting Rule 41(g) motions for return of property filed as to searches of laboratories in a grand jury investigation of steroid use in major league baseball."  This case also pointed out concerns about government investigations, and suggested that they should not be able to conduct searches without limits as to what information they are seeking, and can ultimately use as evidence.

The article provides further discussion and analysis of this issue, and ultimately states, "It may be that the few scenarios left for a successful overbreadth claim include when the warrant simply fails to describe the offenses that are the basis of the search, when the warrant does not tie the electronic data to the offenses under investigation or when the government violates its own self-described search strategy. Although courts might be embracing this result as a marriage of necessity between the Fourth Amendment and modern technology, the recitations of concerns against electronic searches inevitably devolving into general searches appear to be eloquent but rarely material to case outcomes."

Leaked Twitter Subpoena Raises Online Privacy Issues

An article by Kate Freeman appearing on the website.

This article discusses a recent subpoena request seeking information on two Twitter users whom allegedly hacked into information from the Boston police department.  The subpoena was leaked to the media, revealing what information was requested.

The article states, "The subpoena requests “available subscriber information, for the account or accounts associated with the following information, including IP address logs for account creation.”

The article further explains, "It’s possible Twitter does host some personal information about the owners of the accounts who tweeted the hacked materials. At the very least, it might have IP addresses. However, Twitter doesn’t verify identities or email addresses of its users, so using Twitter for detective work might be more harmful than helpful to an investigation, especially if the subpoena is leaked. We contacted the Boston District Attorney’s Office and are waiting for a reply."

Wednesday, December 28, 2011

Data Breach Response: A Year in Review

An article by Theodore J. Kobus III posted on the Data Privacy Monitor website of the law firm Baker Hostetler.

This article discusses data breaches that occurred in 2011, and the responses to those incidents.

The article states, "...corporations facing data breaches need to navigate a maze of state laws that have varying requirements governing timeliness of notification, contents of notification, and what constitutes a data breach. The time and expense involved in responding to a data breach is significant, but the risks to a company’s reputation are far greater if the breach is not handled appropriately."

In addition, the article provides the following information about lessons learned:
  • Transparency is key to maintaining relationships with customers and regulators, be certain you understand the scope of the breach before making an announcement; 
  • An IT policy should be implemented to ensure that patches and updates are implemented in a timely fashion; 
  • Ensure that firewalls have been installed, configured and are tested on a regular basis; 
  • A breach of a large email database may trigger notification; 
  • Education of employees is critical to the success of any data breach prevention plan; 
  • Old data is dangerous data—make sure you need to keep it; 
  • Do not collect more data than you need to—e.g., do you need to request a social security number on the initial submission by an applicant for employment?; 
  • Social engineering tools are being used creatively to gain access to personal information; 
  • Social media policies need to be monitored, enforced, and updated regularly without encroaching on employee rights; 
  • It isn’t just personal information we are concerned about—disclosure of trade secrets and other confidential information puts organizations at risk; 
  • Encryption is not only a safe harbor, it is expected by customers and regulators. 

E-Discovery evolved: A 2011 year in review

An article by David Canfield posted on the website.

The article discusses eDiscovery trends and the fact that Legal departments are tackling more multifaceted technology issues than ever before.

The article provides some interesting statistics, and states the following:

"According to a recent Kroll Ontrack analysis of approximately 100 reported judicial opinions addressing e-discovery in 2011, it is easy to see the complexities judges, lawyers and litigation support professionals face on a daily basis.

Specifically, of the cases analyzed, the following statistics emerged:
42 percent of cases addressed sanctions (with the majority of these sanctions being issued for preservation and spoliation issues)
14 percent of cases addressed various procedural issues (such as searching protocol and cooperation)
13 percent of cases addressed various production considerations
12 percent of cases addressed privilege considerations and waivers
11 percent of cases addressed cost considerations
3 percent of cases addressed preservation and spoliation issues (but not sanctions)
2 percent of cases addressed discoverability and admissibility issues
1 percent of cases addressed computer forensics protocols and experts

Notably, issues surrounding cost-shifting and the taxation of e-discovery costs, discovery of data from social media websites and e-discovery in criminal cases emerged in 2011 as new themes in judicial opinions."

The article further discusses some of the topics referenced above, including taxation of eDiscovery, and provides some precedent case law examples as well.

Tuesday, December 27, 2011

Information Governance and eDiscovery Trends for 2012

An article by Charles Skamser posted on the eDiscovery Paradigm Shift website.

This article discusses the topic of Information Governance and eDiscovery and looks at trends projected for 2012 and into the future.  The article touches on topics such as Cloud Computing, and Social Media Networks, and the impact they are having on eDiscovery and managing information.

The article further states, "The real change that we will witness in 2012 will be virtual technology (not hardware based) that enables users to move information governance and eDiscovery solutions/platforms to the cloud ESI and collects it and processes it in the cloud where it resides."

The article further projects, "Enterprises will be able to move virtual information governance and eDiscovery solutions around their networks and private clouds as required to collect and process ESI where it resides. Cloud Service Providers (CSPs) will provide information governance and eDiscovery solutions as part of their standard IaaS and PaaS technology stacks. Early Case Assessment (ECA) is going to take on a whole new meaning. This approach is a major paradigm shift in the entire concept of how information governance and eDiscovery should work."

Hackers Use QR Codes To Hijack Smartphones

An article by Paula Ebben published on the CBS Boston website.

This article warns that QR codes can be used to steal information, or provide links to cites that authorize charges to your cell phone without your approval.

The article states, "You can’t really tell what information is stored in that code until after you have scanned it and that could be a problem according to malware expert Tim Armstrong. “There is danger inherent in using these types of systems. They can link to malicious websites or phising pages just as easily as they can link to legitimate information,” he said."

According to the article protections are being developed to try and limit this problem.

Cyber Attacks on Corporate America continue to escalate in Frequency and Sophistication

An article by Roy E. Hadley, Jr. appearing on the National Law Review, also posted on the Barnes & Thornburg website.

This article discusses the increasing frequency and complexity of cyber hacking incidents in the U.S.

The article discusses "phishing" attacks, and also looks at the recently publicized breaches of the U.S. Chamber of  Commerce.  The article states, " “Years ago we used to say people got in through server vulnerabilities, but if we look back at this year of Microsoft vulnerabilities, we see a high majority of them we would classify as client-side bugs,” said Andrew Storms, director of security operations at San Francisco-based vulnerability management vendor nCircle. “Many of these attacks require the user to take some action, but they’re taking advantage of a piece of software that is otherwise silent but the user has activated it.”"

Friday, December 23, 2011

More eDiscovery Cowbell? Do You Bring “More Cowbell” To Electronic Discovery?

A weekly series posted by Rob Robinson on the Complex Discovery Blog.  Follow Rob on twitter at @ComplexD

This article is a weekly item posted by Rob Robinson providing recognition to persons that were sharing useful and informative eDiscovery content for the previous week.

The author states, "I am great fan of the famed “More Cowbell” Saturday Night Live sketch featuring Christopher Walken and Will Farrell. I am also great fan of many “twitterers” whom I follow daily and I benefit immensely from the information they provide with their “tweets”.

Being a fan of both “More Cowbell” and key “twitterers” and also being aware of the twitter phenomenon of “follow fridays”, I thought it appropriate and fun to begin sharing once a week on Friday a list of five “twitterers” who I believe “bring more cowbell” to those interested in the news, views, and events surrounding the topic of electronic discovery."  If you have suggestions for possible recipients, the author provides a link to contact him with such recommendations. 

Joe Bartolo, one of the curators of the Litigation Support Technology and News blog is honored to be included as one of the recipients of this week's Top 5 Cowbeller award.  This weeks recipients are:  December 23, 2011:  .@BenKerchberg .@Joseph_Bartolo .@LegalersWelcome .@MoniqueAltheim .@OreLawPracMgmt

P.S.  Have a wonderful holiday season, and thanks to all our readers and followers for your support and comments.  The Litigation Support Technology and News blog has had over 82,000 hits since June, and we certainly are grateful to our readers.  

Accessing An Employee's Social Media Account Without Bad Intent

An article by Michael Schmidt posted on the Social Media Employment Law blog of Cozen O'Connor.

This article discusses the recent case of Maremont v. Susan Fredman Design Group, Ltd., in which an employer accessed an employees personal social media accounts, after the employee had been seriously injured in a car accident.

The article describes the court's holding, " employee is entitled to have a jury hear her claims that her employer unlawfully accessed and used her social media accounts. Even when there does not appear to have been any malevolent motivation on the company’s part."

The article further states, "What should you as an employer take away from this development?

Interestingly, the court did dismiss the employee’s claim for breach of her common law right to privacy, holding that Facebook and Twitter posts are generally not “private.” Nevertheless, this case offers a good reminder that all employers must be careful about accessing an employee’s social media accounts, even when you think that you are simply continuing the assigned job functions of an employee who is unable to fulfill them (temporarily or otherwise)."

Accessing An Employee's Social Media Account Without Bad Intent

2nd Circuit Allows School Oversight of Social Media

This is an article courtesy of Law Technology News and appearing on Legal Technology Bytes.

This article discusses the fact that Federal court in the 2nd Circuit has shown approval for the monitoring of social media by schools administrators.

The article looks at the case of Doninger v. Niehoff, 642 F.3d 334 (2d Cir. 2011), and a link to the case opinion is provided.

The article looks at precedent cases as to whether school official can discipline students whom are using their free speech rights. The article states, " , the 2nd Circuit explained, school administrators may prohibit student expression that will "materially and substantially disrupt the work and discipline of the school," and offensive speech that would receive full constitutional protection if used by an adult in public discourse may, consistent with the First Amendment, give rise to disciplinary action by a school."

In this case the student's punishment for a critical blog post was that the student was barred from running for class office, the court found this punishment to be reasonable based on the circumstances. The article states, "The 2nd Circuit emphasized that it was not concluding that school administrators were immune from First Amendment scrutiny when they reacted to student speech by limiting students' participation in extracurricular activities. In this case, however, it found that it was objectively reasonable for school officials to conclude that the student's behavior was potentially disruptive of student government functions and that the student was not free to engage in that behavior while serving as a class representative -- a representative charged with working with these very same school officials to carry out her responsibilities."

Thursday, December 22, 2011

Chinese Hack Into US Chamber of Commerce, Authorities Say

An article by Pierre Thomas and Olivia Katrandjian posted on the ABC News website.

The article discusses troubling computer hacking incidents that are being attributed to the Chinese, regarding U.S. Department of Commerce communications, among other U.S. based communications as well.

The article states, "The Chinese have attacked every major U.S. company, everygovernment agency, and NGO's. Their attacking the Chamber of Commerce is part of a pattern of their attacking everything in the US. If you're working on U.S.-China relations with an NGO, government agency, you can be sure the Chinese are reading your emails and on your computer," Richard Clarke, former White House counter-terrorism adviser, told ABC News."

Governmental Tracking of Cell Phones and Vehicles: The Confluence of Privacy, Technology, and Law

A post by Michael Arkfeld on his blog Electronic Discovery and Evidence.

This post provides a link to a Congressional document dated December 1st that provides insight into the current state of cell phone tracking laws.  The Congressional document lists Richard R. Thompson as the author.
The table of contents for the document is provided below:

Fourth Amendment and Privacy ...................................................................................................... 2
Federal Surveillance Statutory Framework .....................................................................................  4
Electronic Communications Privacy Act (ECPA) ............................................................................. 4
Evidentiary Standards of Proof Under ECPA................................................................................... 7
Cell Phone Surveillance in the Courts .............................................................................................. 8
Third Circuit Approach..................................................................................................................   9
Conflict in the Lower Courts ......................................................................................................... 11
Hybrid Theory ...........................................................................................................................    12
Governmental Surveillance of Vehicles.........................................................................................   14
United States v. Knotts: Surveillance on Public Roadways ..........................................................    15
United States v. Karo: Surveillance on Private Property ..............................................................    15
GPS Tracking in the Seventh and Ninth Circuits ..........................................................................   16
United States v. Jones: Supreme Court Review............................................................................   16
Pending Legislation Before the 112th Congress ............................................................................. 18
Electronic Communications Privacy Act Amendments Act of 2011 (S. 1011) ................................ 19
Geolocational Privacy and Surveillance Act (GPS Bill; S. 1212 and H.R. 2168)............................. 20
Conclusion ................................................................................................................................... 22
Author Contact Information........................................................................................................... 22

DHS program to monitor social media users draws lawsuit

An article by Aliya Sternstein posted on website.

This article discusses a recent lawsuit filed by privacy advocates against the Department of Homeland Security, based on allegations of purportedly illegal social media monitoring.

The article states, "Homeland Security officials have expanded an ongoing initiative that tracks public online communications in the interests of public safety, according a February DHS notice.

The Electronic Privacy Information Center on Tuesday filed a lawsuit under the Freedom of Information Act that seeks all government communications with contractors related to the program. The request was prompted by a leak of planning emails from government contractor HB Gary describing project proposals for a private firm to monitor and discredit the online activities of Americans, such as labor union leaders. Other emails in the cache showed that an HB Gary executive was planning a special training session with Homeland Security officials. Hacker activists from the loosely organized collective Anonymous released the communications."  A link to the referenced DHS notice, and the lawsuit filed by EPIC are provided in the article.

The article further states, "The DHS program can observe American and foreign private sector officials who make statements online, as well as government officials who communicate publicly, according to the notice. The gleaned information also can be shared with the Justice Department for litigation, or other governmental agencies to respond to disasters and track the spread of disease or other health threats."

MF Global: A Lesson for Corporate Compliance Officers

An article by Michael Peregrine posted on on the LTN webpage.

The article discusses the recent meltdown of MF Global, and looks into the causes, and the investigations that have followed.

This article states, "A series of high-profile media reports allege that the MF Global risk officer's warnings were marginalized in the process, which may have contributed to the ultimate investment losses. At their core, such allegations raise highly practical concerns relating to the management of the corporate compliance and risk functions to which every board must be attentive and sensitive. The corporate counsel is uniquely positioned to brief organizational leadership in this regard."

The article further discusses some of the allegations as follows, "Specific allegations involving the CEO include his categorizing the risk officer's perspective as "extreme"; making a "him" (the risk officer) or "me" (the CEO) challenge to the board; questioning the risk officer's qualifications for the position; and expressing annoyance with the risk officer's persistent warnings. Ultimately, the risk officer left the organization but before the failure of the investment strategy, and his replacement was reportedly given a more limited portfolio, without the ability to comment on the trading strategy so heavily criticized by his predecessor."

The article additionally states, "...the crucial takeaway for clients is the importance attributed to appropriate dealings between corporate leadership and compliance and risk officers. As these media stories suggest, the cost of failing to get this right is very high.

Corporate counsel can well serve the client CEO and the board with cautionary guidance on the proper role of the compliance and risk officers within the organizational structure; their vertical and horizontal reporting relationships; and the deference that officers and directors are obligated to pay to compliance and risk officer presentations."

Technological improvements can assist in this regard, bringing compliance officers in closer contact with their legal counterparts, and "C" level corporate officers, as well as their internal IT departments.  A development from earlier this week that is related to this topic was referenced on the Litigation Support Technology and News blog...the release of the IGRM (Information Governance Reference Model) diagram from the EDRM organization. A link to that article is provided below, and the model is also shown here:

Wednesday, December 21, 2011

Compare and Contrast: Network and Internet Remote Collection Tools

An article by Sean Doherty posted on on the webpage.

This article discusses self-collection techniques, and looks at technology used to remotely collect data over the internet, as well as techniques using media such as thumb drives.

The article states, "Sending USB drives to custodians to self-collect data and using network-enabled, remote collection software are two ways to reach the same goal, but with different approaches that aren't easily compared."

The article further describes information regarding solutions provided by Five different service providers, regarding methods they can use to forensically collect data via the internet, or via means involving some form of self-collection.  The article further states, "Like self-collection tools, network software collectors can gather information about a custodian's computer — such as the operating system, network interfaces, and memory. They can investigate external drives and network shares used to store data, and store the collected data on a USB drive or at a network location." The article provides a link to a complete breakdown of the products and services discussed in the article.

Plaintiffs Score a Pair of Wins in Social Media Decisions

An article by Ben Present posted on on the Legal Intelligencer journal.

This article discusses two recent cases where the court did not compel the production of evidence from Facebook, since the evidence sought was not posted on an individual's public page.

The article mentions two Pennsylvania based cases and states, "In one of the cases, a Franklin County judge denied an auto-accident defendant's motion asking for access to the plaintiff's social media pages because the request did not stem from information found on the plaintiff's public profile. It appears to be the first decision in this state to deal with social media discovery in which the defendant could not point to content available for anyone to see.

In the other case, a Luzerne County judge denied a defendant insurance company's request to gain access to its opponent's private Facebook and Myspace pages, but ordered the plaintiff not to delete the websites or any of the content on them."

The two cases mentioned were: Arcq v. Fields; and Kalinowski v. Kirschenheiter.  The Arcq case was held to differ from the case "Largent v. Reed , which came down last month, the defendant established a good-faith basis for requesting access to the plaintiff's private Facebook page because of information available on the public page."

The article goes on to further state, "While there is no appellate precedent to guide lower courts on discoverability of information on Facebook, there is a growing body of trial court decisions. Kalinowski and Arcq offer plaintiffs lawyers two more decisions to cite, joining Piccolo v. Paterson , a Bucks County decision from earlier this year.

For the defense bar, the go-to decisions remain Zimmerman v. Weis Markets Inc. and McMillen v. Hummingbird Speedway Inc . Those cases, along with Largent , will continue to be cited by defendants seeking discovery."

New Utah Rule 26: A Blueprint for Proportionality in eDiscovery

An article by Philip Favro posted on the blog e-Discovery 2.0.

This article discusses Utah's Rule 26 civil procedure rule, and outlines the differences between this rule and Federal Rule of Civil Procedure 26.

The article states, "Under the Federal Rules of Civil Procedure, the directive that discovery be proportional is found in Rules 26(c), 26(b)(2)(C) and Rule 26(b)(2)(B). Under Rule 26(c), courts may generally issue protective orders that limit or even proscribe discovery that causes “annoyance, embarrassment, oppression, or undue burden or expense.” More specifics are set forth in Rule 26(b)(2)(C), which enables courts to restrict discovery if the requests are unreasonably cumulative or duplicative, the discovery can be obtained from an alternative source that is less expensive or burdensome, or the burden or expense of the discovery outweighs its benefit. In the specific context of electronic discovery, Rule 26(b)(2)(B) restricts the discovery of backup tapes and other electronically stored information that are “not reasonably accessible” due to “undue burden or cost.”.  Links to the referenced subsections of the rule are provided in the article. The article goes on to point out that definition of "proportionality" is not clear to the Federal courts.

The article goes on to describe the difference in Utah's State Rule, "Utah Rule 26 has changed the permissible scope of discovery to expressly condition that all discovery meet the standards of proportionality. That means parties may seek discovery of relevant, non-privileged materials “if the discovery satisfies the standards of proportionality.” This effectively shifts the burden of proof on proportionality from the responding party to the requesting party. Indeed, Utah Rule 26(b)(3) specifically codifies this stunning change: “The party seeking discovery always has the burden of showing proportionality and relevance.” This stands in sharp contrast to Federal Rules 26(b)(2) and 26(c), which require the responding party to show the discovery is not proportional."  A link to Utah's rule is provided.

Top 10 List of Things You Can Do to Minimize Your Organization’s Data Breach Risk

The link above provides insight from Christine Marciano as to Ten methods that can be used to minimize the risk of data breaches.

The writers of the the Litigation Support Technology and News blog hope that you find the Top Ten list helpful to your business in 2012.

Happy holidays to all!

Crowdsourcing legal data: are we all e-discovery agents now?

An article appearing on the New Legal Review on the website.

This article discusses the concept of "crowdsourcing", which is essentially the act of a group of individuals providing content via electronic means about a specific topic.

The article states, " Crowdsourcing’ is a term coined in 2006 by technology expert Jeff Howe, who became interested in how companies were engaging customers in key corporate functions, such as marketing."

The article provides examples of how "crowdsourcing" has provided useful information in support of a legal position during a specific litigation.  Examples include defense of persons that wrote articles critical of services, (such as chiropractic care), or in support of claims that two companies (restaurants) names were similar enough to be causing confusion among consumers.

In addition, information regarding the UK riots was also helpful in prosecuting individuals for their criminal actions.

The article further states, "...crowdsourcing has had a positive impact on the world of intellectual property (IP) through the Peer to Patent initiatives in the US and UK. These enable technical experts of all types to sign up and provide their insights on select patent applications. But this year, web-based crowds have also played major roles in the gathering of raw evidence..."

Information in private emails subject to Freedom of Information Act?

An article by Howard Sklar posted on the blog.

This article discusses the fact that some content within an email message might be subject to production pursuant to a Freedom of Information Act request.

The article states, "It’s not unexpected, but recent guidance by the UK government opens up a Pandora’s Box for individuals. The UK government has clarified its interpretation of the Freedom of Information Act: official information, even if stored or sent via personal email accounts, is disclosable under FOIA. On the one hand, this can be seen as an advancement in open government. On the other, the intrusion into the personal space is worrisome."  A link to the FOIA is provided in the article.

The article further goes on to state, "In order to ensure open government, FOIA requires an intrusion into our personal sphere. If you use official tools for personal use, you forfeit the ability to keep that information from FOIA requests."

The 2011 Law Firm Billing Survey

An article appearing on the National Law Journal, providing links to the Law Firm Billing Survey.

The article states, "For the third year in a row, law firms showed restraint with hourly rate increases, inching up at a rate only slightly higher than inflation in many cases. The average firmwide billing rate, which combines partner and associate rates, increased by 4.4 percent during 2011, according to The National Law Journal's annual Billing survey. That followed on the heels of a 2.7 percent increase in 2010 and a 2.5 percent increase in 2009 — all of which paled in comparison to the go-go, pre­recession days when firms could charge between 6 and 8 percent more each year."  Links to this year's survey, as well as the past two surveys are also provided in the article.

Tuesday, December 20, 2011

Solving eDiscovery Challenges In 2012: A New Year’s Resolution

An article which consists of an interview by the Editor of Metropolitan Corporate Counsel providing comments from Steve d’Alencon.

This article discusses eDiscovery obstacles that will need to be addressed during 2012.

The article provides link to Gibson Dunn's eDiscovery survey, as well as Kroll's survey, both providing insight into eDiscovery trends and challenges.

The article also touches on challenges associated with "Big Data", and how to properly address this type of data for eDiscovery purposes.

In addition, the article states, "Another root cause is that the very nature of ESI continues to become more complex, not only because there continues to be immensely more of it, but also because the types of data and the number of locations from which to collect data continue to increase. This challenge spans from behind the firewall storage, email, archives, applications and computers, to cloud-based business applications and systems, a dizzying array of social media and also mobile devices, including smart phones and tablet computers."

The article further outlines two ways to improve eDiscovery results in 2012, "...the application of business discipline to eDiscovery and the use of appropriate technology."

One E-Discovery Trap and How to Avoid It

An article by Charles S. Fax posted on the ABA Litigation News website.

This article discusses litigation involving Facebook founder Mark Zuckerberg, and provides insight into the request for production of metadata during litigation.

The article mentions the case in which Paul Ceglia alleges that Mr. Zuckerberg made him partial owner of Facebook several years ago.  A link to the complaint in that case is provided in the article.  Since the case relies on purported evidence of contracts that were created electronically, and is being defended by claims that the evidence is fabricated, metadata is a crucial element in this case.

The author states, "The potential costs of this discovery can only be imagined—but the resources of the parties, coupled with the stakes, clearly have made their efforts both feasible and worthwhile. This discovery could entail, among other things, forensic examinations of each item of hardware used by Ceglia dating back eight years; examination of hardware housed at Harvard during the same time frame; identification of hundreds of pertinent emails in all electronic media produced; production and review of the metadata for each email; and related forensic analyses.

The metadata issue is especially vexatious. To be admissible as evidence an email must be authenticated."

The article goes on to further state that metadata is sometimes not essential to a case, however there are risks to not requesting metadata early in the matter.  The article provides some advice as follows, "...delaying a request for metadata can be risky. This is especially true if the discovery period is short. Even assuming counsel has reviewed the documents in a timely manner, until preparation of a dispositive motion or pretrial preparation, he or she still might not appreciate the significance of a particular document, or the necessity of proving (or disproving) its authenticity. If discovery has ended, counsel’s ability to challenge authenticity may be lost.

This trap can be avoided, however, by a simple expedient: Both parties can agree not to seek metadata at the outset of discovery but reserve the right to request at their own expense, by a date certain, a stipulated amount of metadata from the other side. For example, “10% of all electronic discovery produced, or ‘x’ amount, whichever is less—and expandable on good cause shown.” This phased approach is recommended in the recently published handbook, Managing E-Discovery and ESI: From Pre-Litigation Through Trial, citing Mancia v. Mayflower Textile Servs. Co. [PDF]. and the rule 26(f) requirement for a discovery plan."  Links to the referenced article and case are provided in the writing. 

EDRM Information Governance Reference Model (IGRM) White Paper

The information below was provided the Electronic Discovery Reference Model (EDRM) organization, and provides information regarding the EDRM's standards for Information Governance, referred to as the Information Governance Reference Model (IGRM)

White paper addresses principles of EDRM’s Information Governance Reference Model (IGRM) and ARMA International’s Generally Accepted Recordkeeping Principles (GARP®)

December 20, 2011 – Overland Park, KS and St. Paul, MN – ARMA International and the Electronic Discovery Reference Model (EDRM) announced today the publication of a jointly developed white paper entitled, How the Information Governance Reference Model (IGRM) Complements ARMA International’s Generally Accepted Recordkeeping Principles (GARP) . This white paper is the result of the collaboration between EDRM and ARMA International, which began this past September.
EDRM’s Information Governance Reference Model (IGRM) illustrates key responsibilities and interdependencies of information stakeholders – business, IT, RIM and legal – in organizations pursuing higher levels of information governance. The IGRM is a communication methodology that promotes cross-functional dialogue and collaboration among those stakeholder groups. It complements the metrics defined by ARMA International’s Information Governance Maturity Model (IGMM).
ARMA’s IGMM paints a comprehensive picture of what effective information governance should look like. It is based on the eight GARP® principles as well as a foundation of standards, best practices and legal/regulatory requirements. The IGMM goes beyond a mere statement of the principles by defining characteristics of various levels of recordkeeping programs. For each principle, the maturity model associates various characteristics that are typical for each of the five levels in the model.
Raising the Awareness of Information Governance Principles 
Information governance is a business process. In order to lower risks and achieve greater efficiencies through process improvement, electronic discovery is increasingly becoming tightly integrated with an organization’s information governance policy, procedures and infrastructure. Both organizations have made considerable contributions to raise awareness of information governance issues. ARMA International has recognized the need by developing the GARP maturity model. EDRM has recognized the need by developing the IGRM, an entirely new reference model separate and distinct from the model developed specifically for electronic discovery.
“Collaboration has never been more important to an organization’s success,” says Marilyn Bier, CAE, executive director of ARMA International. “We’re excited to be a part of this white paper to help emphasize both the importance of good governance to an organization, as well as the necessity of cross-functional collaboration in order to reduce risk and raise business performance to the levels that stakeholders demand.”
“EDRM recognizes that effective electronic discovery management is based on effective information governance across all teams – IT, records management and legal,” said Tom Gelbmann, co-founder of the EDRM. “We are extremely pleased to be partnering with ARMA on this educational effort and helping raise the level of awareness on this important practice through this joint white paper.”
To go to the web version of the paper, click here , and to download a copy of the ARMA-EDRM information governance white paper, click here .

About ARMA International 
ARMA International ( ) is a not-for-profit professional association and the authority on managing records and information. Formed in 1955, ARMA International is the oldest and largest association for the records and information management profession with a current international membership of nearly 10,000. It provides education, publications, and information on the efficient maintenance, retrieval, and preservation of vital information created in public and private organizations in all sectors of the economy. It also publishes the award-winning Information Management magazine.
The association also develops and publishes standards and guidelines related to records management. It was a key contributor to the international records management standard, ISO-15489. For more information, please visit

About EDRM 
Launched in May 2005, the EDRM Project was created to address the lack of standards and guidelines in the e-discovery market – a problem identified in the 2003 and 2004 Socha-Gelbmann Electronic Discovery surveys as a major concern for vendors and consumers alike. The completed reference model provides a common, flexible and extensible framework for the development, selection, evaluation and use of e-discovery products and services. Expanding on the base defined with the Reference Model, the EDRM projects now include nine projects including the Information Governance Reference Model project. Over the past five years, the EDRM project has comprised more than 230 organizations, including 150 service and software providers, 57 law firms, three industry groups and 22 corporations involved with e-discovery. Information about EDRM is available at .

Designer can sue firm for tapping social media accounts while she was injured

This article is by Matt Dunning and appears on the website.

This article discusses the following situation, "Jill Maremont, a marketing director at the Chicago-based Susan Fredman Design Group, filed suit in Chicago federal court against the company and owner Susan Fredman last year, alleging that Ms. Maremont's personal Twitter and Facebook accounts were illegally accessed and used without her consent to promote the company."

The case involved a situation where Ms. Maremont was injured and was recovering in a hospital.  During her hospital stay, both her personal social media network accounts, and accounts she created for her employer's company were accessed, and updated, without her authorization.  She brought claims under the Stored Communications Act and also alleged privacy violations.  The defendant argued that she suffered no financial harm.

The article further states, " Judge St. Eve said “it is undisputed that Ms. Maremont created a personal following on Twitter and Facebook for her own economic benefit and also because if she left her employment at SFDG, she would promote another employer with her Facebook and Twitter followers.”

The woman satisfied requirements to bring a false endorsement claim “because she has a protected, commercial interest in her name and identity within the Chicago design community,” the judge concluded. The ruling could be revisited, pending the outcome of hearings to ascertain whether Ms. Maremont suffered any actual financial damage as a result of the company's actions."

Modernizing Legal Review for a Manageable Litigation Business Process

An article by "Hayley" posted on the eDiscovery News blog.

This article discusses the attorney legal review process during the discovery phase of litigation.  The blog post provides a link to an article Katey Wood posted on the Enterprise Strategy Group's website.

The blog post states, "According to Duke University, the ratio of pages discovered to pages entered as exhibits at trial was on average as high as 1000/1 in 2008[2]—and, anecdotally, we can now add a zero. Traditional linear attorney review workflow from the days of paper-based discovery (reviewing evidence document by document in chronological order by custodian or with no order at all) is proving inadequate for tackling evidentiary volumes in tight timeframes on the largest cases and regulatory matter."

The blog post further states, "The solution is to treat e-discovery, including attorney review, as the strategic business process that it is, one that optimizes efficiency by reducing the time and costs involved in litigation without increasing risk or exposure. This report examines the changing market for software and services in attorney review, highlighting innovative technology and project approaches which ESG believes provide opportunities for more efficiency, accuracy—and even defensibility and predictability—in the process."

P.S. Should you have thoughts on this topic, we certainly welcome your comments.

Monday, December 19, 2011

A Brief Compendium of Boneheaded E-Discovery Mistakes

An article by Craig Ball, Esq. on his blog Ball in Your Court.

This article discusses the difference between "recall" and "precision" as they relate to eDiscovery.

The article states, "Recall and Precision aren’t friends. In e-discovery, they’re barely on speaking terms. Every time Recall has a tea party, Precision crashes with his biker buddies and breaks the dishes.

It’s easy as pie to achieve a high recall of responsive information in e-discovery. You simply grab it all: 100% of the data = 100% recall. But, if only one out of a hundred items is what you seek, your precision stinks–it’s just 1%. You’ll look at 99 irrelevant documents for each one worth reviewing."

The article points out certain common mistakes in utilizing searching during eDiscovery, the list includes a discussion of the following items:

Boneheaded Mistake 1: Searching for a custodian’s name or e-mail address in the custodian’s e-mail

Boneheaded Mistake 2: Assuming the Tool can Run the Search

Boneheaded Mistake 3: Not Testing Searches

Boneheaded Mistake 4: Not Looking at the Data!

Boneheaded Mistake 5: Ignoring the Exceptions List

The article goes on to indicate that this is just a short list of mistakes and the author seeks input from readers regarding other mistakes that they have seen. Feel free to respond to Mr. Ball's article if you want to share some more information about mistakes to avoid.

Secrets of Search – Part II

This is the 2nd part of a now 3 part series (the author states that this originally was intended as a two part series but due to the amount of content it required expansion) on the secrets of search during the eDiscovery phase of litigation.

The author recaps his main two points of the first article, "I can quickly summarize the first two secrets with popular slang: keyword search sucks, and so does manual review (although not quite as bad), and because most manual review sucks, most so-calledobjective measurements of precision and recall are unreliable."

The third secret revealed is as follows, "The Third Search Secret (Known Only to a Very Few): e-Discovery Watson May Still Not Be Able to Beat Our Champions"

The author seeks a new "Gold" standard for attorney review.

The components of this new standard include:" The exact contours of the new gold are now under development in dozens of law firms, private companies, and universities around the world. Although we do not know all of the details, we know it will involve:

  1. high quality technology assisted review, with smart software, very smart predictive coding type, and multiple expert review of key seed-set training documents;
  2. constant expert involvement, both subject matter experts (attorneys) and AI experts (technologists);
  3. direct supervision and feedback by the responsible lawyer(s) (merits counsel) signing under 26(g);
  4. extensive quality control methods, including training and more training, sampling, positive feedback loops, clever batching, and sometimes, quick reassignment or firing of reviewers who are not working well on the project;
  5. experienced, well motivated human reviewers who know and like the AI agents (software tools) they work with;
  6. new tools and psychological techniques (e.g. game theory) to facilitate prolonged concentration (beyond just coffee, $, and fear) to keep attorney reviewers engaged and motivated to perform the complex legal judgment tasks required to correctly review thousands of usually boring documents for days on end (voyeurism will only take you so far);
  7. top-notch project managers who know and understand their team, both human and computer, and the new tools and techniques under development to help coach the team;
  8. strategic cooperation between opposing counsel with adequate disclosures to build trust and mutually acceptable relevancy standards; and,
  9. final, last-chance review of a production set before going out the door by spot checking, judgmental sampling (i.e. search for those attorney domains one more time), and random sampling."
P.S. This is another very comprehensive and enlightening article by Mr. Losey.  It is certainly worth reading, and re-reading.  The darkest secret of searching is said to be coming in Part 3 of this excellent series. 

How the Proposed 2012 EU Directive on Data Privacy Could Impact Social Media

An article by Jo Stratmann published on the website.

This article looks at the EU data privacy directives and discusses how they may impact the use of social media networks.

The article mentions that current EU data privacy laws in most member states were drafted prior to the creation of Facebook.  The article further states, "In essence, European politicians are seeking to simplify the EU Data Protection Directive in order to give businesses within the EU only “one law” with “one data protection authority”. Proposed changes to the data law aim to unify the existing legislation of each EU Member State, making it easier for businesses to transfer data.

According to Reuters, EU officials expect the draft legislation to be ready early next year (as early as January 2012) but it could take up to 18 months for the bill to become law, meaning that businesses will still have to comply with disparate laws and often conflicting decisions made by data protection authorities (DPAs) in each of the 27 Member States."

The article further outlines the following goals of the EU directive and provides some commentary around each of the points:

  • Increased data portability 
  • The ‘right to be forgotten’ 
  • Compelled disclosure 
  • A ‘one-stop-shop’ 
  • Abolish processing

Sunday, December 18, 2011

Electronic Discovery of Your Facebook Profile

An article by "Staff Reporter" and published on the O'Connors website.

This article discusses a specific case regarding a discovery request to produce information from the social media network Facebook.

The article states, "In November, a Pennsylvania Court of Common Pleas issued an opinion in Largent v. Reed, No. 2009-1823 (Pa. Common Pleas Franklin 2011) (slip op.; 11-8-11), a case involving damages for injuries sustained in a case accident." A link to the referenced case is provided.

This case involved a situation where the defendant requested information posted by the plaintiff, claiming the posts ran counter to the plaintiff's injury claims.

The court held that the information should be produced.  The article provides some analysis as to why the court ruled as it did.

The case opinion is quoted in the article as follows, "The Court holds that no general privacy privilege protects [plaintiff’s] Facebook material from discovery. No court has recognized such privilege, and neither will we. By definition, there can be little privacy on a social networking website. Facebook’s foremost purpose is to “help you connect and share with the people in your life.” That can only be accomplished by sharing information with others. Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets."

The court further held, "The court further held that individual users are not covered under the Stored Communications Act (SCA); thus, the statute did not prohibit the defendant’s discovery in this case."

The article provides a link to other articles and comments on about this topic.  In addition a quote for Orin Kerr, in one of the articles provided by link is also included by the author, " [T]he privacy of Facebook communications are protected by 18 U.S.C. 2701 of the Stored Communications Act, … in addition to 18 U.S.C. 1030, the Computer Fraud and Abuse Act, which protects all computers generally. Both of these statutes prohibit accessing electronic accounts without authorization or in excess of authorization."

P.S. So as the author says, the real question comes down to what is "authorization"? Can a trial court give "authorization", or must it come from Facebook, or the Facebook account holder?

Misadventures in Searching Unallocated Space

An article by Joshua Gilliland, Esq. posted on his blog the Bow Tie Law Blog.

This article discusses the specific case of  I-Med Pharma Inc. v. Biomatrix, Inc., 2011 U.S. Dist. LEXIS 141614 (D.N.J. Dec. 9, 2011).

This case involved stipulated search terms provided to the plaintiff in a case, and discussed the level of burden that the search would impose.

The appellate court upheld the lower court ruling which allowed the plaintiffs to limit certain data from the production request   The author states the initial order was:  "1) Allowing the Plaintiffs to withhold ESI from the unallocated space and 2) Permitting the Defendants to seek reimbursement for their search from the Plaintiff. I-Med Pharma Inc.

The Magistrate Judge also found:

1) Good cause existed to modify the original discovery order, because the burden on the Plaintiffs would “outweigh any potential benefit that may result.”

2) Defendants had not met its burden of demonstrating the complete relevancy of the ESI they sought, including that the Defendant had not identified any ESI destroyed by the Plaintiff.

3) The overbroad search terms made the likelihood of finding relevant information that would be admissible at trial “minimal.”"

The article goes on to further state, "Attorneys will always be needed to decide what ESI to use in a deposition or trial, because a human being is better at determining what will convince other human beings the “truth” of a case. However, technology can make finding what is relevant out of a data set with 65 million records far more effective than a brute force review of each record."

Misadventures in Searching Unallocated Space

An article by Joshua Gilliland, Esq. posted on his blog the Bow Tie Law Blog.

This article discusses the specific case of  I-Med Pharma Inc. v. Biomatrix, Inc., 2011 U.S. Dist. LEXIS 141614 (D.N.J. Dec. 9, 2011).

This case involved stipulated search terms provided to the plaintiff in a case, and discussed the level of burden that the search would impose.

The appellate court upheld the lower court ruling which allowed the plaintiffs to limit certain data from the production request   The author states the initial order was:  "1) Allowing the Plaintiffs to withhold ESI from the unallocated space and 2) Permitting the Defendants to seek reimbursement for their search from the Plaintiff. I-Med Pharma Inc.

The Magistrate Judge also found:

1) Good cause existed to modify the original discovery order, because the burden on the Plaintiffs would “outweigh any potential benefit that may result.”

2) Defendants had not met its burden of demonstrating the complete relevancy of the ESI they sought, including that the Defendant had not identified any ESI destroyed by the Plaintiff.

3) The overbroad search terms made the likelihood of finding relevant information that would be admissible at trial “minimal.”"

The article goes on to further state, "Attorneys will always be needed to decide what ESI to use in a deposition or trial, because a human being is better at determining what will convince other human beings the “truth” of a case. However, technology can make finding what is relevant out of a data set with 65 million records far more effective than a brute force review of each record."

E-Discovery Pitches Meet Sabermetrics

An article by Evan Koblentz posted on on the LTN webpage.

The article discusses technology studies aimed at providing metrics to measure the effectiveness of eDiscovery solutions.

The article references two current projects and states, " addition to the final results of the U.S. government's annual Text Retrieval Conference (TREC) Legal Track, due in February, there will also be a new round of the nonprofit Electronic Discovery Institute's own performance study, last conducted in 2006. In both cases, the contests pit teams of document reviewers, using their choice of software, all working on the same data set to learn which methods are the fastest and most thorough."  A link to the TREC project is provided in the article.

The article further states, "Such benchmarks may be the e-discovery equivalent of sabermetrics in professional baseball -- the concept that computers and measurements are more useful than a veteran leader's intuition."

In addition, the article goes on to describe some specifics about each of the referenced research projects.  The article also states, "  "I'm more interested in the much bigger policy decisions that the judiciary is making," EDI leader and LTN advisory board member Patrick Oot said. "When litigants choose one form of technology over the other, what are the ramifications of it? It's very difficult to apply real science to a loosey-goosey standard like reasonableness.""

Saturday, December 17, 2011

5 Ways To Increase Email Policy Compliance

An article by Jeff Orloff posted on the website.

This article provides insight into email compliance, and provides tips on how to increase the effectiveness of email compliance policies.

The author states that email policies are necessary to:

  • Protect against email based threats and vulnerabilities
  • Reduce the organization’s liability if email is used inappropriately by employees
  • Prevent misconduct when it comes to email use
  • Educate employees on email etiquette
  • Inform employees of email monitoring policies.
In addition, the author provides discussion surrounding 5 topics:

1. Understand why you are creating these policies
2. Explain the risks
3. Review policies with other departments
4. Provide data
5. Realize that not every policy has to do with security

Chief Judge Finds That Alteration of Facebook Page Can Lead to Spoliation Inference

An article by Mara E. Zazzali-Hogan posted on the e-Discovery Law Alert blog of the law firm Gibbons.

This article discusses the case of Katiroll Company, Inc. v. Kati Roll and Platters, Inc. et al . in which plaintiff sough sanctions against the defendant based on spoliation allegations for evidence existing on the social media network Facebook.

The article states that one of the alleged violations, which was the action taken by the defendant to remove a Facebook page, was done at the request of the plaintiff, so there was no sanction for that action.

With respect to the other issue, the court ordered the defendant to re-post a specific picture on the site that was involved in a trademark dispute, so that the plaintiff could have access to the picture.  The court provided some information regarding the analysis they used to reach the decision, "The Court recited the four requirements for a spoliation inference, which the Chief Judge described as the mildest of sanctions: (1) whether the evidence was in the party’s control; (2) whether the evidence was actually suppressed or withheld; (3) whether the evidence was relevant vis-à-vis the claims or defenses at issue; and (4) whether it was reasonably foreseeable that the evidence at issue would subsequently be discoverable. The Court concluded that the most important consideration in determining what level of fault is required to support the second factor (an issue that is disputed within the District) is the degree of prejudice to the movant. Specifically, the Court concluded that a negligence standard may be appropriate if there was substantial prejudice whereas intentional conduct would be required if minimal prejudice resulted."

Friday, December 16, 2011

House Judiciary Subcommittee: No Need to Act on EDD Costs

An article by Henry Kelston posted on on the LTN webpage.

This article discusses a recent Congressional subcommittee meeting that addressed concerns of eDiscovery costs and preservation obligations.

According to the article, "In the end, the consensus of the participating members was that the question is being actively studied by the Federal Judicial Conference's Civil Rules Advisory Committee, so there is no reason for Congress to involve itself at this time."

The article describes the events that took place at the recent Congressional hearing on this topic, as well as provides some comments made by some of the Representatives. The article states, "Rep. Jerrold Nadler, D-N.Y., opened his statement with the observation that the title of the hearing did not "even remotely acknowledge" the critical role discovery plays in uncovering facts so that cases can be resolved on the merits. While acknowledging that electronic data discovery poses new challenges and burdens to litigants, Nadler pointed out that electronic data has also "proven particularly valuable in uncovering critical evidence and improving accountability," and that "we should not lose sight of the tremendous benefits of discovery in our focus on its alleged costs and burdens.""

The article further quotes  Rep. John Conyers, D-Michigan, as having noted noted that "less than one-tenth of 1 percent of federal cases involve the level of discovery costs that were subject of the hearing, "which suggests that this hearing may be based on some corporation insistence that they be heard about this matter" rather than a genuine need to consider rules changes."

The article also quotes Rebecca Kourlis, now the executive director of the Institute for the Advancement of the American Legal System. According to the article she "...began by stating what litigators already know: that e-discovery has made litigation more complex and expensive, leading to fewer trials and more settlements based on the cost of litigation rather than the merits of the dispute. "The culprit seems to be, to some significant extent, the way in which the pretrial process unfolds.""

In addition, William Hubbard, an assistant law professor at the University of Chicago testified about preservation costs, and warned that sometimes they grow to substantial amounts.  However, he was also quoted as providing a figure that "discovery in the median case costing about $12,000. "

Further comments from other testifying witnesses are also provided in the article.

A Seventh Circuit Pilot Program to Reduce the E-Discovery Burden

An article by David J. Kessler, Emily Johnston and David Schwartz published on the website.

This article discusses the 7th Circuit's pilot program regarding eDiscovery, which has entered a 2nd phase.

The pilot program seeks to offer a more established framework to provide guidance to litigants regarding eDiscovery preservation obligations, than what presently exists under the Federal Rules of Civil Procedure.

The article states, "The program’s formal Principles consist of six primary elements: (1) cooperation and proportionality; (2) early focus on e-discovery; (3) a designated e-discovery liaison for each party; (4) identification of the scope of preservation; (5) the provision of a framework for effective negotiation; and (6)
the provision of an incentive for judicial education on e-discovery matters."

In addition, the article further points out, "While promoting cooperation, proportionality, early communication
and education as the primary tools to rein in electronic discovery does not distinguish the Seventh Circuit program from other guidance and protocols, it goes one step farther by establishing a framework to negotiate the issues, particularly with respect to preservation. Each side has a baseline from which to work. This doesn’t mean the baseline will be the rule in every case, but both parties know it’s a default that should be altered only where that’s warranted by particular facts."

The article further states that certain types of data do not need to be preserved in a typical matter.  If a party intends to seek preservation of those specific types of data, they must notify the opposition early in the case proceedings.  The specific Six types of data that requires a special preservation request are said to be as follows, "These six categories are:

1. “Deleted,” “slack,” “fragmented” or “unallocated” data on hard drives.
2. Random access memory (RAM) or other ephemeral data.
3. On-line access data, such as temporary internet files, history, cache and cookies.
4. Data in frequently and automatically updated metadata fields, such as last-opened dates.
5. Backup data that is substantially duplicative of data that is more accessible elsewhere.
6. Other forms of ESI whose preservation requires extraordinary affirmative measures not utilized in the
ordinary course of business.

The presumption is that in most cases, the preservation of these items is not reasonable or proportional, because the likelihood of their containing materially relevant information is slim."