Tuesday, January 31, 2012

Microsoft's John Frank Examines E-Discovery's Impact on Global Ethics


An article posted on Law.com written by Evan Koblentz.

The article states, "Global corporate ethics are a largely untapped major market for e-discovery technology, Microsoft Deputy General Counsel John Frank said in his keynote speech, the first at this year's LegalTech New York."  The article goes on to discuss further comments made by the aforementioned Mr. Frank.

Monday, January 30, 2012

LegalTech New York Is Here


Article by Monica Bay


Legal Tech is finally here!

The first keynote speaker will be John Frank, Microsoft's vice president, deputy general counsel, and chief of staff in its Office of the General Counsel. He will speak on "Ethical Business in a Global Economy: Preventing Corruption and Bribery" on Monday at 9 a.m. Be sure to get to the Hilton New York early, as lines are notoriously long opening day -- even with "speed" passes and pre-registration.

Immediately following that keynote, Law Technology News team will present the 2011 LTN Innovation Awards to the six worthy recipients: U.S. District Court Magistrate Judge Andrew Peck (Champion of Technology), Craig Bingham, of Bass, Berry & Sims (IT Director of the Year), and for most innovative use of technology: Mallesons Stephen Jaques (large firm), Ward and Smith (small firm), John Deere (corporate law department), and the Minnesota Legal Services Coalition (pro bono).

LegalTech New York Is Here

Sunday, January 29, 2012

Survey Predicts Big Revenue Spike for Litigation Support

Article by Monica Bay


The Cowen Group released the 6th anuual survey on Jan. 18, 2012, The survey results were conducted in 2011, with 22 firms participating. The most dramatic finding: Revenue from litigation support services, estimated at $275 million for 2011, is expected to spike this year to $535 million -- a spike of 105 percent. During 2011, law firms employed about 2,600 litigation support and EDD professionals, spending $200 million on salaries, and generating $275 million in hourly revenue, the survey reports. Cowen predicts that 57 percent of firms will add staff this year, to the tune of 375 positions -- a market growth rate of 13.7 percent.

The predicted breakdown of percentage of firms adding positions in 2012:

• 44 percent analysts (100 positions), 2011 headcount 1,200.
• 38 percent specialists (85 positions), 2011 headcount 800.
• 29 percent project managers (65 positions), 2011 headcount 400.
• 22 percent regional managers (15 positions), 2011 headcount 220.
• 7 percent firmwide managers (5-7 positions), 2011 headcount 100.
• 8 percent firmwide directors (5-7 positions), 2011 headcount 80.

Is Keeping Legacy Data More Trouble Than It's Worth?


An article by Anne Kershaw published by law.com on the corporate counsel webpage.

This article discusses electronically stored information, and provides insight into methods used to reduce costs associated with "legacy" data storage and handling.

The author states, "Even ignoring electronic data discovery costs, the cumulative infrastructure and operational costs of hoarding data and data media are enormous. Many organizations have hundreds of thousands of unneeded tapes and terabytes of electronic files that have not been looked at in years, incurring significant backup, maintenance, and storage costs."

The article provides tips about restoration of data. In addition, the article provides tips for the proper method to delete data.

Friday, January 27, 2012

Twitter to censor tweets, sparks worry over freedom of expression

Article by Nina Mandell


The micro-blogging firm announced on the company blog Thursday that it plans to change its censorship policies to comply with different countries' regulations.

"As we continue to grow internationally, we will enter countries that have different ideas about the contours of freedom of expression," the post read. "Some differ so much from our ideas that we will not be able to exist there. Others are similar, but for historical or cultural reasons, restrict certain types of content, such as France or Germany, which ban pro-Nazi comment."

The move, while it could be disappointing for some revolutionaries, follows a similar policy to Google, The Associated Press pointed out — and could help Twitter expand from 100 million active users to more than 1 billion around the world.

"One of our core values as a company is to defend and respect each user's voice. We try to keep content up wherever and whenever we can, and we will be transparent with users when we can't. The tweets must continue to flow," the company added.

On Twitter, users protested the move with a #dontcensor campaign.

twitter to censor tweets, sparks worry over freedom of expression

Registration Materials for Legal Tech in New York


The link above is a link to the registration forms for the upcoming Legal Tech conference in New York City, to be held January 30th through February 1st.

There is additional information about the conference provided through the link below:


Hope to see you there.

Aren’t You Forgetting Something?


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

This article discusses commonly missed file types that are often overlooked during the preservation phase, and even if preserved, the files referenced are often not processed during eDiscovery.

The file types discussed are IPD files and .OST files.  The article states, "An IPD file is the synchronization container file created when a user backs up a BlackBerry device, and it’s a real humdinger when it comes to holding data you can’t find anywhere else. Stuff like SMS messaging, tons of e-mail, phone call logs, photos, memos, contacts and task lists. Whatever role the BlackBerry device played in the user’s life, the IPD has an elephant’s memory for the details."

The article further states, "If you’ve been around e-discovery for more than ten minutes, chances are you know that, by default, the Microsoft Outlook mail client stores Outlook messaging, calendars, contacts, etc. in a file or files with the extension .PST. But it’s surprising how often I come across e-discovery acolytes who don’t know that, when Microsoft Outlook connects to a Microsoft Exchange Server (as occurs in most companies bigger than a breadbox), the Outlook messaging and other content tends to be stored in a file with the extension .OST, not PST."

Information Governance, UK eDisclosure and International Discovery in three days


An article by Chris Dale on his blog the e-Disclosure Information Project.

The article discusses a busy week last week for the eDiscovery community, and another busy week to follow with the Legal Tech conference in New York City set to take place next week.

The article describes Mr. Dale's busy last week, "Just the week, all in all, to have a big webinar to moderate, a seminar to lead in the North of England and an invitation to speak at a conference in Brussels on three consecutive days. And in the middle of all that, the EU commission announces a re-revised data protection regulation just as I have finished reading the 116 page leaked version."

Mr. Dale discusses the events referenced above in a compilation article that references each of the aforementioned items.  In addition, Mr. Dale has been preparing to take part in various Legal Tech presentations from the 30th of January through the 1st.

P.S.  Hope to see many of the readers of this blog at Legal Tech.

Thursday, January 26, 2012

Are E.U. and Google Data Policies the Future of Online Privacy?


An article by Catherine Dunn posted on law.com on the Corporate Counsel webpage.

This article discusses recent developments that are impacting on-line privacy rights.  The article states, "It’s been a big week for data privacy. First Google announced its new privacy policy, which will sync user information across all company products, including search results. Then the European Union announced a proposed overhaul of its data protection law. And next, the Federal Trade Commission and the U.S. Department of Commerce are expected to unveil their own communiqués on U.S. privacy policy. (And in case it’s not already on your calendar, Thursday was also Data Privacy Day!)".  Links to various items are included in the article regarding the aforementioned developments.

The article goes on to to discuss these developments, and provide further insight into possible future behavioral changes that these policies will cause.

Opinion: Eliminating human error from data loss risk


An article by Eoin Blacklock posted on the computing.co.uk website.

This article discusses the challenges posted by portable electronic devices, and the risks such devices present in terms of possible data loss.

The article states, "All organisations must ensure that any portable device containing sensitive information is carefully transported and, more importantly, properly encrypted. The policies, procedures and responsibilities need to be in place and understood, and appropriate encryption applied religiously."

The article further states, "It is now possible for data to be backed up online and managed in secure datacentres. The potential for human error can be almost eliminated and the data is never exposed to the risks of a portable storage medium."

Wednesday, January 25, 2012

Spoliation — How Important Is the Electronic “Original” of a Document?


An article appearing on the Gregory P. Joseph Law Office blog.

This article discusses the case of Bull v. UPS, Inc., 2012 U.S. App. LEXIS 54 (3d Cir. Jan. 4, 2012).

The referenced case discusses a situation where an original doctor's notes were not produced in a timely fashion, primarily due to the fact that the individual plaintiff was apparently not informed by her counsel that such original notes had been requested.  In addition, the number of requests for the originals by the defendant was apparently limited to only two instances, which played as a major factor in the appeals court decision.  The lower court had dismissed the case with prejudice based on the plaintiff's failure to produce the requested doctor's notes, the appeals court revered and stated that the imposed sanction was too harsh in light of the facts associated with the case.

The article outlines several factors that needed to be addressed in order to merit dismissal for spoliation.  Based on the review of 6 criteria referenced in the article, two of which merited dismissal according to the appeal court, four of which weighed against the harsh sanction, the appeal court reinstated the plaintiff's claim. One major factor in favor of the plaintiff was the fact that the original doctor's notes still exited, and were in the plaintiff's possession...hence the spoliation alleged could be corrected.  In addition, defense counsel for UPS apparently exaggerated the number of requests they had actually made for the original doctor's notes that were in question.

The article further states, "...UPS's counsel crossed a line between effective advocacy and its duty as an officer of the court to accurately present the record, and in so doing it encouraged the District Court's misunderstanding of the record.

We conclude that, apart from the merits of the appeal, without the benefit of clean hands here, UPS should not be the beneficiary of a sanction that we are, under most circumstances, already loathe to affirm."

FINRA Opens Door for Social Media with New Rules


An article by Tim Walker appearing on the socialware blog site.

This article discusses FINRA amendments to rules governing social media use.  The article states, "....FINRA is amending proposed FINRA Rule 2210(c)(7) to add a filing exclusion for retail communications that are posted on online interactive electronic forums. Nevertheless, members should be aware that this exemption does not apply to any filing requirement that may arise under either federal law or SEC Rules."

The article further advises, "We can think of firms and advisors as having two compliance “checkpoints” for any message they put out:

  • Checkpoint 1: the medium. FINRA and other regulatory bodies have always treated different mediums differently. For instance, they don’t expect an advisor to digitally record an in-person conversation the same way they would archive an e-mail. Over the past few years, social media has presented a host of new challenges to regulators, since it often does not fit neatly with existing regulations that address other mediums. The new FINRA approach changes things up—a lot.
  • Checkpoint 2: the message. A prospectus is a prospectus and must be treated like one. Some types of content will always require pre-review; some will always require post-review. The new FINRA approach doesn’t change that at all."
The article warns that this new regulation does not provide a "hall-pass" to freely post content on social media networks without considering other applicable FINRA rules.

Tuesday, January 24, 2012

Reducing Costs And Risks Associated With The Preservation Of Electronically Stored Information Through The Remediation Of Legacy Data


An article by Matthew Cohen and Brendan Sullivan posted on the Metropolitan Corporate Counsel website.

This article article discusses methods that can be used to limit data preservation costs.

The article discusses the following topics, and provides insight into potential costs savings associated with each issue:
  • Data Mapping
  • Is It OK For Organizations To Dispose Of Legacy Data? 
  • Framework For The Remediation Of Legacy Data 
  • What is Legacy Data?
The article in the discussion of disposal of legacy data poses the following questions:
  1. Is the retention policy under which the documents are to be destroyed “reasonable”?
  2. Are the documents subject to destruction under the policy relevant to past litigation/investigations and if so, with what frequency?
  3. Was the retention policy adopted in bad faith? 
With respect to the framework that can be followed to possibly permit deletion of legacy data, the article states, "The process used by the authors to assist clients in analyzing and disposing of legacy data is by necessity flexible and is adapted to suit the particular requirements and circumstances of each project. It is based upon five fundamental steps:
  • Catalog and understand the organization’s retention needs and preservation obligations;
  • Create an inventory of information that must be retained or preserved – the “obligations matrix”;
  • Inventory and categorize legacy data;
  • Filter legacy data through the obligations matrix;
  • Dispose of data that has no business value and that is not subject to retention or preservation obligations."

EPIC: Supreme Court Upholds Fourth Amendment in GPS Tracking Case


A blog post by Sabrina on the beSpacific.com website.

This article discusses the U.S. v. Jones case, in which the Supreme Court just upheld a decision stating that a warrant is required for government authorities to use a GPS tracking device as part of a criminal investigation. A link to more information about the case is provided in the blog post.

Monday, January 23, 2012

The Delicate Balance Between E-Discovery And Business Requirements


An article by Mikki Tomlinson posted on the eDiscovery Journal website.

This article discusses challenges associated with implementing litigation hold in a corporate environment.

The article states, "One of the greatest challenges of implementing and maintaining legal hold and discovery response processes in a corporate environment is balancing those requirements with the needs and goals of the IT department. While we typically see the dichotomy between Legal and IT, there are other key stakeholders that cannot be left out of the mix: Compliance, Records Management and, of course, the Business Client."

The article goes on to mention that different departments within a corporation often do not relate well to one another, and don't comprehend the needs of other departments. The article states, "To point out the obvious – this requires communication. The problem here is that Legal, Records, Compliance, and IT do not speak the same language. Because every organization is unique, culture is another critical component that cannot be ignored. While the cultural considerations and communication difficulties between the stakeholders may not necessarily be contentious, they can be frustrating and challenging."

The article goes on to discuss three topics, and provides a discussion as why they matter to different corporate departments. The topics referenced are as follows:

  • Data Destruction
  • Data Migration
  • Mergers, Acquisitions and Divestitures 

My CLE event this week with the e-Discovery Triumvirate: Judges Facciola, Grimm and Peck; and my upcoming battle at Legal Tech with Craig Ball


An article by Ralph Losey posted on the e-DiscoveryTeam® blog.

This article discusses the recent CLE event held in Charlotte, North Carolina on January 18th, that included Judges Grimm, Peck and Facciola, as well as several other expert participants.  The article outlines the event, as well as provides information on the various participants.  In addition, the article provides several pictures taken at the event.  The feedback provided by the audience for the event has been very positive, and the comments of the expert panelists were extremely informative. A transcript of the event will be provided in the near future, and Mr. Losey's article provides a link to that transcript, once it is available. 

Joe Bartolo, one of the authors of the Litigation Support Technology and News blog participated in the event, and some of the photos appearing in Mr. Losey's article were taken by Joe during the event.  In addition, a blog post about this event, posted on the Litigation Support Technology and News blog, from last week included a list of suggested reading materials which was distributed at the event, and a link to that blog post is provided below. 


Sunday, January 22, 2012

The Dangers of Do-It-Yourself eDiscovery: A Warning to Lawyers and Business Leaders.


A blog post by Gene Petty on the eDiscovery Paradigm Shift blog.

This article provides warning to attorneys who gather their client's electronically stored information, and represent that client at trial.  The article points out that attorneys involved directly in the collection and processing of ESI might be making themselves a potential witness in the case.

The article states, "Lawyers who gather ESI directly face several dilemmas and dangers. One of the largest concerns is the lawyer becoming a witness in the case. American Bar Association Model Rule of Professional Conduct 3.7 prohibits the lawyer from acting as the lawyer in the case and being a necessary witness."  The blog post goes on to provide information about the details of the referenced Rule 3.7

The blog post further discusses the authentication of the ESI.  The author states, "Any person who gathers ESI must be able to authenticate and lay a foundation for that ESI. “Authentication” simply means that the person called to admit the ESI must prove that the ESI is what he or she claims it is. That person must be able to lay a foundation for the ESI.
To authenticate the evidence, the person called to testify may need to establish the following, depending upon what is sought to be introduced and the issues raised:

How the ESI was gathered.
Where the ESI was stored.
Who had access to it.
Establish the chain-of-custody
Whether other ESI was also located.
Whether a thorough search was conducted.
Whether the ESI sought to be introduced was altered from its original state.
Other essential details.

Saturday, January 21, 2012

When Can a Doctor’s Note Excuse You From Sanctions?


An article by Catherine Kiernan on the ELL Blog website.

This article discusses the case Bull v. UPS Inc., No. 10-4339 (3d Cir. Jan . 4, 2012).

In this case the plaintiff had presented a doctor's note seeking reinstatement to her job.  UPS had requested that the plaintiff produce the original letter, not a copy.  However, at trial it became clear that the plaintiff did possess the original doctor's notes, but was unaware that UPS had requested that her counsel produce the original.  The case was dismissed, and sanctions were awarded against the plaintiff.  The appeals court reversed, and ordered a new trial, stating that UPS had a burden to prove bad faith against the plaintiff, and that the facts did not support a finding of bad faith.

The article states, "Bull demonstrates that in an increasingly digitalized age counsel and judges need to be very clear with exactly what versions of documents they require and how much those different versions actually affect the fairness of a case. Because people are used to everything being saved on computers and most things easily reproducible online attorneys cannot assume that clients will keep actual “originals” in their possession and must communicate clearly with them and keep a immaculate record of exactly what is required."

Friday, January 20, 2012

Relevance: The Most Important Limitation on Discovery Abuse?


An article by Dennis Kiker posted on the LeClair Ryan website.

This article discusses Rule 26(g) of the Federal Rules of Civil Procedure.

This article states, "Last week, I had the opportunity to participate in a webcast reviewing the case law highlights from 2011. One of the topics we discussed was the certification requirement of Rule 26(g). In preparing for the webcast, none of the panelists, including me, thought that the rule had received much attention since Judge Grimm’s opinion in Mancia v. Mayflower Textile. Turns out we were wrong. A quick Westlaw search turned up at least 80 cases in 2011 alone in which Rule 26(g) was referenced. I did the math, and that averages more than one opinion every week, some of which are quite interesting. So it turns out that Rule 26(g) just might be gaining some ground in reducing the pervasiveness of overly broad requests for discovery and knee-jerk boilerplate objections. Thank you, Judge Grimm."

P.S.  Judge Grimm participated in a CLE panel event in Charlotte, North Carolina on January 18th, and Joe Bartolo, one of the authors of this blog was also one of the speaker/participants.  Judge Grimm addressed the Rule 26(g) requirements during the event in Charlotte as well, and warned against overly broad discovery requests, especially in the context of request for electronically stored information.

Relevance: The Most Important Limitation on Discovery Abuse?


An article by Dennis Kiker posted on the LeClair Ryan website.

This article discusses Rule 26(g) of the Federal Rules of Civil Procedure.

This article states, "Last week, I had the opportunity to participate in a webcast reviewing the case law highlights from 2011. One of the topics we discussed was the certification requirement of Rule 26(g). In preparing for the webcast, none of the panelists, including me, thought that the rule had received much attention since Judge Grimm’s opinion in Mancia v. Mayflower Textile. Turns out we were wrong. A quick Westlaw search turned up at least 80 cases in 2011 alone in which Rule 26(g) was referenced. I did the math, and that averages more than one opinion every week, some of which are quite interesting. So it turns out that Rule 26(g) just might be gaining some ground in reducing the pervasiveness of overly broad requests for discovery and knee-jerk boilerplate objections. Thank you, Judge Grimm."

P.S.  Judge Grimm participated in a CLE panel event in Charlotte, North Carolina on January 18th, and Joe Bartolo, one of the authors of this blog was also one of the speaker/participants.  Judge Grimm addressed the Rule 26(g) requirements during the event in Charlotte as well, and warned against overly broad discovery requests, especially in the context of request for electronically stored information.

Thursday, January 19, 2012

Suggested Reading Materials - from mock "Meet and Confer" in Charlotte with Judges Facciola, Grimm and Peck


A mock "Meet and Confer" CLE event was held in Charlotte, North Carolina yesterday.  The link above provides a list of suggested reading materials, and website resources that relate to eDiscovery.  This resource list was provided to the audience that attended the event, which was organized by Nova Office Strategies.  The primary organizer of the event was Doug Moore.

The participants in the event includes Honorable U.S. Magistrate Judges Facciola, Grimm and Peck, as well as Hon. Shiva Hodges, U.S. Magistrate Judge in South Carolina, and  Hon. David Keesler, U.S. Magistrate Judge for the Western District of North Carolina.  The Judges all provided introductory remarks regarding electronically stored information, and the impact it has upon litigation.

The moderator of the event, was Josh Durham, Esq. partner in the firm Poyner Spruill.   Josh provided tremendous assistance in organizing the teams for the role play, and was very much involved in the pre-planning stages for the event.

The event included a number of participants, who performed role plays of a meet and confer, based on a fictitious litigation involving a small corporate plaintiff, and large corporate defendant, and a non-party corporation.  The litigation surrounded a defamation claim against the defendant, and counter-claims by the defendant that the plaintiff had stolen trade secret information. The plaintiff corporation had recently taken 3 employees from the defendant corporation, and part of the litigation involved a request by the plaintiff seeking declaratory judgement against the defendant to void a non-compete agreement that the 3 employees had signed. The non-party corporation was said to be a customer of the defendant corporation, and was subject to a subpoena from the plaintiff seeking electronically stored information that would allegedly prove the defamation allegation.

The plaintiff's team included team leader Ralph Losey, a partner of the firm Jackson Lewis, and a prominent author about eDiscovery.  In addition, Sonya Sigler, VP of Product Strategy of SFL Data; Teri Alsop, IT Project Manager for Duke Energy; and Carranza M. Pryor, the Associate General Counsel and Director of Litigation for TIAA CREF, all played roles as part of the plaintiff's team.

The defendant's team was led by Jill Crawley Griset, a partner of the firm McGuire Woods.  Member of the defendant's team in the role play included Craig Cannon, discovery counsel for Bank of America; Kate Maynard, a partner in the firm Robinson Bradshaw and Hinson; Bruce Pfannestiel, an Associate Director of Global Records for PPD; and Matt Miller, SVP and IP Practice Group leader for DiscoverReady. Kate Maynard also spoke to the recently revised North Carolina State practice rules, and provided information to the audience regarding those changes.

For the non-party team in the role play session, the team leader was Christopher Hicks, a partner of the firm Katten Muchin Rosenman.  In addition, members of the non-party team included Tim Nohr, Associate General Counsel for Rack Room Shoes; Sarah Serpico, Manager of Business Solutions and Technology for National Gypsum Company; and one of the writers of this blog, Joseph Bartolo, Director of Corporate Sales for SRM Legal.  Joe Bartolo also helped coordinate the planning of the event between the various team leaders, and also led the effort to compile the materials that were distributed to the audience.

The event was held at the University of North Carolina - Charlotte, Downtown Campus.  The event was attended by well over 100 attorneys and paralegals.  The event was interesting, and informative and the feedback provided by the audience was very positive.  The comments made by the Judges were particularly informative, and the Judges offered critiques of the role play sessions.

The initial role play examples were meant to highlight common mistakes made by both outside counsel, and by corporate law departments.  The Judges then provided information as to how to avoid mistakes, and litigate effectively and within the spirit of the Federal Rules of Civil Procedure.  The 2nd role play session was designed to highlight "Best Practices", and to further illustrate the Judges advice as to how to properly cooperate to comply with discovery obligations.

The team leaders in the role plays were all very dynamic, and the comments made by all the participants covered a wide range of concerns about the present state of eDiscovery, and challenges that legal profession will continue to be faced with regarding the preservation, collection, review and production of electronically stored information.

eDiscovery continues to evolve.  Steps are being taken within corporate environments to improve the level of "litigation readiness" through information governance practices, and the use of technology, people and process.   The value of  the knowledge shared by Judges, experienced counsel, and IT professionals cannot be overstated, and events such as the one held yesterday in Charlotte will serve to improve the legal profession.

Wednesday, January 18, 2012

The Growing Mobile Forensic Headache


An article by Albert Barsochinni, Esq. appearing on the eddupdate.com website.

This article discusses the complexities involved with having to collect electronically stored information from mobile devices.

The article states that attorneys need to know what type of data can be found on mobile devices, especially since certain types of evidence might not be found anywhere else.  The article states, "Trying to acquire and analyze data from more than 5,000 models and clones of mobile phones, PDAs, and GPS devices is no easy task. The treasure trove of data they now contain — text messages, email, call history, databases, scheduler, contacts, files, GPS waypoints, etc. — make them high value targets in e-discovery and criminal investigations."

Tuesday, January 17, 2012

Authenticating Your eDiscovery Web Resources


An article by Greg Buckles posted on the eDiscovery Journal website.

This article provides guidance regarding the use of website sources that provide news related to eDiscovery.  The author warns, "There are some fantastic blogs and sites out there. So whenever you stumble onto a new site, look beyond the clever domain name to read the About page. If you cannot easily understand who is behind the site and how it is funded, that should raise a red flag. Just as you need to be able to authenticate ESI produced in discovery, you should be able to authenticate the sources of your eDiscovery news and opinion."

Mr. Buckles provides information regarding certain specific sites, and compares the information on the "About" page, thus revealing information regarding the perspective of the website's authors.  Is the author a provider for a specific service?  Does the website accept ads from certain technology providers that it might recommend?

P.S.  Joe Bartolo of this blog has compiled a detailed list of website resources regarding eDiscovery, which will be distributed as part of the handout materials offered to attendees of the "Mock Meet and Confer" CLE event to be held in Charlotte tomorrow, January 18th.  The event involves Judges Grimm, Facciola, and Peck, as well as several well know eDiscovery experts.  Please look for the website reference list to be posted on this blog later this week, subsequent to the CLE in Charlotte.

Monday, January 16, 2012

Are Lawyers Getting in the Way of Machine-Assisted Review?


An article by Sharon D. Nelson, Esq. posted on the Ride the Lightning blog.

This article discusses technology assisted review, and references another recent article written by Karl Schieneman for Forbes last week entitled "Legal Hydra? Top Ten Tips to Become More Proficient with Machine-Assisted Review."  A link to that article is provided in Ms. Nelson's writing.

Ms. Nelson's article states, "Lawyers are uncomfortable with this new machine-assisted review which they generally don't understand very well, if at all. They prefer to do things the way they've always done them. They speak a different language than their experts and their IT departments and the two cannot seem to communicate effectively. Very often, the in-house folks are told to simply follow orders.

It is absolutely true that some lawyers try to keep experts away from cases in the mistaken belief that they are saving money. If you get a good expert, that expert will always be focused on saving time and money while doing the best possible job."

Bottom Line Driven Proportional Review


An article by Ralph Losey, posted on the e-Discovery Team® blog website.

 The article discusses the attorney review process, and provides detailed advice as to how to calculate projected costs for the review.  The article focuses on the establishment of a defined process that looks at the risk involved in the litigation, and helps focus on what the appropriate proportionate costs should be for a review.

 The article states, "The bottom line in e-discovery production is what it costs. Believe me, clients care about that …. a lot! In Bottom Line Driven Proportional Review and Production everything starts with the bottom line. What is the production going to cost? Despite what some lawyers and vendors may tell you, that is not an impossible question to answer. It takes an experienced lawyer’s skill to answer, but after a while, you can get quite good at such estimation."

The article references several other articles, and provides mathematical formulas that can be utilized to assist in gauging the review costs.

As the article states, "The process begins by the producing party calculating the maximum amount of money appropriate to spend on ESI production. A budget. This requires not only an understanding of the ESI production requests, but also a careful evaluation of the merits of the case. The amount selected for the budget should be proportional to the monies and issues in the case. Any more than that is unduly burdensome and prohibited under Rule 26(b)(2)(C), Federal Rules of Civil Procedure and other rules that underlie what is now known generally known as theProportionality Principle."

The author provides information regarding formulas that can be used to calculate anticipated review costs.  In, addition, the author warns that numbers cannot just be made up, and that they need to be based on realistic cost estimates that can be established through knowledge of the types of documents that require review. Mr. Losey also provides some interesting statistics regarding typical costs for specific functions.

The article provides 9 essential elements of a proportional review.  This article can certainly be used a foundation for establishing a cost-efficient and defensible attorney review process.

Sunday, January 15, 2012

Stiff sanctions


An article by Alex Vorro posted on the insidecounsel.com website.

The article discusses violations of international privacy laws, and looks at sanctions levied for such violations.

The article states, "In many nations, including China and much of Europe, it’s considered the equivalent of a felony for U.S. companies to improperly collect private data. In the European Union, which has strict privacy regulations compared to the U.S., potential fines for improper collection or procedure vary from country to country—the highest currently being France, where a company can receive a €4.5 million penalty."

Saturday, January 14, 2012

The challenges of collecting data outside the U.S.


An article by Alex Vorro posted on the insidecounsel.com website.

The article focuses on issues related to collection of electronically stored information (ESI) that exists outside of the U.S.

The article states, "In our Internet Age, with emails and other information constantly whistling across the welkin, a company may have its data residing on servers in multiple countries or even continents. While the immediate accessibility is a benefit, the potential problems companies face when it comes time to collect or produce that data for the sake of a lawsuit or discovery can be serious—especially for U.S. businesses."

The article examines differences in the way the EU approaches data collection, including different philosophical differences regarding privacy rights of employees.

The article mentions safe harbor provisions as well, as a possible means of addressing data that resides in the EU.  The author states, "Another potential avenue to extract data from EU nations is through safe harbor provisions, under which certain outside companies are licensed to accept data from EU sites. “They basically have set themselves up as little EUs in the U.S., so they have the same types of protections as the EU and other countries,” says Quarles & Brady Partner Steven Hunter."

The challenges of collecting data outside the U.S.


An article by Alex Vorro posted on the insidecounsel.com website.

The article focuses on issues related to collection of electronically stored information (ESI) that exists outside of the U.S.

The article states, "In our Internet Age, with emails and other information constantly whistling across the welkin, a company may have its data residing on servers in multiple countries or even continents. While the immediate accessibility is a benefit, the potential problems companies face when it comes time to collect or produce that data for the sake of a lawsuit or discovery can be serious—especially for U.S. businesses."

The article examines differences in the way the EU approaches data collection, including different philosophical differences regarding privacy rights of employees.

The article mentions safe harbor provisions as well, as a possible means of addressing data that resides in the EU.  The author states, "Another potential avenue to extract data from EU nations is through safe harbor provisions, under which certain outside companies are licensed to accept data from EU sites. “They basically have set themselves up as little EUs in the U.S., so they have the same types of protections as the EU and other countries,” says Quarles & Brady Partner Steven Hunter."

Friday, January 13, 2012

Nuix eDiscovery: Where are we going in 2012?


An article by Eddie Sheehy posted on the Nuix.com website.

The article discusses some projected future trends regarding eDiscovery and information governance.

The article provides an interesting statistic, "The world's computers and their users now generate 15 petabytes of new information each day."  A footnote is provided in the article to the source of this statistic.

The article looks at several topics, and provides a discussion regarding each.  The article examines the following items:
  • Big Data: the information explosion reaches a critical point 
  • Information governance to come of age in 2012 
  • The convergence of eDiscovery and information governance 
  • The opportunities for eDiscovery experts
The final topic that article examines is, "In Short - Less is More".  The article states, "2012 will be the year that organizations start to come to grips with Big Data, and eDiscovery professionals realize they're placed perfectly to help their companies do it. Over the next 12 months, organizations that change the way they manage their data significantly will avoid the risks and costs of information overload and lay a strong operational foundation for the future.

The "keep everything" approach is clearly no longer workable. The "less is more" view of data management will become the norm."

A Modest Proposal For Email


An article posted by Ryan McClead appearing on the 3 Geeks and  Law Blog website.

This article offers a proposal seeking to increase the efficiency of email use.

The article states that a five minute delay on emails might provide great benefit, "I believe this simple change would drastically cut down on the volume of emails, which would in turn make the emails that do end up in the inbox more visible. More importantly, this five minute delay would also make employees more conscious of their use of email. Before habitually firing off an email, a sender would think to themselves, can the recipient survive without this information for the next 5 minutes? Can I wait 10 minutes for a reply? If either answer is no, then email is probably not the most appropriate way to send the message."

What do you think? Is the following statement true, "Email is Where Knowledge Goes to Die"?

Thursday, January 12, 2012

Information governance requires data ‘dress code,’ says UnitedHealth Group e-discovery head David Yerich


An article by David Yerich posted on the Aceds.org website.

This article discusses information governance best practices, and provides a link to a podcast regarding this topic, provided by the Director of eDiscovery for United Healthcare.

As the article introducing the podcast states, "Those who regularly deal with e-discovery or handle electronic data in the workplace find it hard to escape the term “information governance.” It is a catchall phrase that encompasses e-discovery protocols, archiving and backup, records management and other considerations that define an organization’s ability to respond to legal and regulatory requirements, and operate efficiently. Organizations of all kinds have begun implementing the policies and structures necessary to account for and regulate electronic information, but the transition is not easy."

Wednesday, January 11, 2012

eDiscovery Case Law: Defendants Not Required to Share Costs for Plaintiff’s Third Party Request


An article by Doug Austin on his blog eDiscovery Daily Blog.

The article discusses the case of  Last Atlantis Capital LLC v. AGS Specialist Partners, No. 04 C 0397, 2011 WL 6097769 (N.D. Ill. Dec. 5, 2011), in which the plaintiff had sought cost sharing from the defendant in order to obtain data that belonged to a third-party.

The Court rejected the plaintiff's request for cost sharing.  The article explains, "
  • Court's comments during the September Status Conference as evidence that costs should be shared: While the court admitted to suggesting to Defendants that Plaintiffs' proposal of cost sharing sounded “reasonable”, those comments “were made to encourage movement within this stagnant litigation”. Once the Court was able to further research the precedent surrounding cost-sharing, it found no basis for accepting the Plaintiffs' cost-sharing proposal.
  • Plaintiffs' reliance upon the Sedona Conference Commentary on Non–Party Production & Rule 45 Subpoenas, 9 Sedona Conf. J. 197 (2008): The court felt that this Sedona Conference Commentary was “almost entirely irrelevant” to the matter at hand as it “is largely concerned with the burden being placed on a non-party to produce information”. Despite the fact that the Commentary “includes a suggestion that parties meet and confer to ‘address’ cost-sharing, amongst other things, in their initial Rule 26(f) conference”, it did not dictate such an arrangement; rather, the Commentary declares that “[c]ost-shifting or cost-sharing are inconsistent with the so-called ‘American Rule’ that each party bears its own litigation costs”.
  • Other Court Opinions: The plaintiffs cited several court opinions – such asWiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 573 (N.D.Ill.2004) and Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 320 (S.D.N.Y.2003) – to attempt to bolster their argument. However, the court noted that all of the court opinions “miss the mark as they each address the issue of cost-sharing amongst the requesting party and the producing party, not between a requesting party and a non-requesting, non-producing opponent in the underlying litigation, such as with Defendants.” 
The court acknowledged that the defendants had “substantially more resources,” but noted that was a fact it could not consider."  A link to the referenced Sedona Conference principles is provided in the article.

Tuesday, January 10, 2012

The Sedona Conference® International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation & Discovery of Protected Data in U.S. Litigation (European Union Edition, Public Comment Version, December 2011)


The link above provides access for you to download a copy of the Sedona Conference® International Principles on Discovery and Disclosure, which was released for comment in December 2011.

The Sedona document states as follows, "Now, after more than six years, Working Group 6 has drafted The Sedona Conference® International Principles on Discovery, Disclosure and Data Protection (“International Principles”). The International Principles sets forth a three-stage approach to addressing cross-border conflicts while also providing useful commentary. The previously published Framework for Analysis will serve as an appendix to the International Principles, providing a strong foundation. The International Principles demonstrates that data protection and discovery are not at intellectual or practical odds.

Finally, as part of the International Principles, Working Group 6 has developed a model protective order and a model data process and transfer protocol for use by parties and courts to better protect litigation-related data subject to data protection laws within the ambit of traditional U.S. litigation and court discovery practices. The Sedona Conference® Model Protected Data Protective Order (“Protective Order”) combines the conventional protective order restrictions on disclosure and use of “confidential” information with additional specific protections for certain classes of information (e.g., personal information) because of international and domestic data protection laws. The Sedona Conference® Cross-Border Data Safeguarding Process + Transfer Protocol (“Protocol”) outlines a practical, baseline approach to protecting data at the preservation and collection levels, rather than attempt to reconcile differences in data protection and privacy schemes among countries and multinational companies.

The International Principles, together with the Framework for Analysis, the Protective Order, and the Protocol, demonstrate that through cooperation and dialogue, and the collective experiences of hundreds of commentators, problems that were once thought to be insurmountable are, in fact, manageable and solvable.

This version of the International Principles is subtitled “European Union Edition.” Other editions of the International Principles are planned for publication by Working Group 6 that will focus on sovereign countries or regions other than the EU and the intersection of their data protection laws and U.S. preservation and discovery requirements."

The document outlines 6 principles and provides detailed discussion around each of the items.  The principles outline discovery obligations, and suggests methods for handling conflicts between jurisdictional rules between the US and the EU.

SEC Clarifies Stance on Social Media, Takes Action to Punish Social Network-Based Fraud


An article by Tim Walker posted on the socialware.com blog.

This article discusses the Securities and Exchange Commission's stance regarding the use of social media, and clarifies their regulations in regard to communications posted on social media networks.

The article discusses recent SEC alerts regarding social media use, and also a recent action brought against an individual for posts made on LinkedIn.

The article states, "There are two lessons to take away from this:
  1. The SEC has made social media a priority. After yesterday’s news, it’s clearer than ever that 100% of firms should prepare for social media audits by having strong social media policies and social media archiving in place.
  2. There’s no need to be scared of social media.Fraud is still fraud. While the social networks do present many new challenges for advisors and compliance officers, when it comes to shady activities, only the mediums—not the underlying rules—have changed."

What Technology-Assisted Electronic Discovery Teaches Us About The Role Of Humans In Technology


An article by Amanda Jones & Ben Kerschberg published by Forbes.com.

This article discusses predictive coding and technology assisted attorney review.

The article states, "Maura R. Grossman & Gordon Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective And More Efficient Than Exhaustive Manual Review, XVII Rich. J.L. & Tech 11 (2011). Anne Kershaw and Joe Howie agree. In a survey of 11 e-discovery vendors who use technology-assisted review in the form of predictive coding, they found not only that technology-assisted review outpaced their aptly termed “brute force [human] linear review of electronic data,” but also technologies that have been used in the not-so-distant past. They write:

The results report that, on average, predictive coding saved 45% of the costs of normal review – beyond the savings that could be obtained by duplicated consolidation and email-threading. Seven respondents reported that in individual cases the savings were 70% or more.(Source: Anne Kershaw & Joe Howie, Crash or Soar: Will The Legal Community Accept “Predictive Coding?” (Law Technology News Oct. 2010))."

The article further states, "Given the significant benefits that technology-assisted review can bring to e-discovery from the dual perspectives of quality and cost, expert commentators have asked a key question: Why isn’t everyone using it? Of the 11 e-discovery vendors surveyed by Kershaw & Howie, “[t]he most mentioned reason cited by respondents was uncertainty or fear about whether judges will accept predictive coding.” Kershaw & Howie, Crash or Soar (supra)."

In addition, the article provides a reference to writing from U.S. Magistrate Judge Andrew Peck, "In October, U.S. Magistrate Judge Andrew Peck of the Southern District of New York attempted to put counsel at ease. See Andrew Peck, Search, Forward (Law Technology News Oct. 1, 2011). After an exhaustive review of the manner in which keyword searches have been subjected to judicial critiques of methodology, he acknowledged that the nature of more advanced technology-assisted review presents a different paradigm for the courts. Judge Peck advised counsel to refer first to the highly respected Sedona Cooperation Proclamation. If cooperation does not result in accord between litigants, they should then “go to the court for advanced approval."

P.S. Judge Peck will be part of a panel next week, on January 18th, in which Joe Bartolo of this blog will be a participant as well.  For information about that event you can click the following link:


Monday, January 9, 2012

Judge tries to moot 'profound' e-discovery dispute, parties say no


An article by Alison Frankel on Thomson Reuters News and Insight website.

The article discusses the KPMG case and a recent development regarding that matter.  The Judge involved hoped that a recent order she issued, trying to focus on a possible summary judgement motion in hopes that the eDiscovery preservation obligations would be "moot" is apparently not going to suffice as a solution.

The article states, "McMahon seems to have hoped that focusing expedited discovery on a classwide issue -- rather than on the individualized facts the magistrate was worried about when he ordered the hard drives to be preserved -- she would put to rest the e-discovery cause célèbre. "If this decision and order obviates the parties' pending discovery dispute," she wrote, "please let the court know within 48 hours."

No such luck. KPMG counsel from Sidley Austin and class lawyers from Outten & Golden sent McMahon a joint letter Thursday asserting that her ruling doesn't resolve the hard-drive preservation fight."   A link to the joint letter is provided in the article.

Storytelling: The Shared Quest For Excellence in Document Review


A guest blog article by William F. Hamilton and Lawrence C. Chapin posted on the e-Discovery Team Blog (e-Discovery Team Copyright attached).

The article looks at the attorney review process, and references the recent 3 part series of articles by Ralph Losey, entitled The Secrets of Search.  Mr. Hamilton and Mr. Chapin suggest that "storytelling" can be used as part of an effective document review, and can enhance results provided by both human review, and technology assisted review.

The article states, "Our experience, unfortunately, is that too many lawyers separate document review from that creative process. They fail to see document reviewers for what they are: investigators sharing fully in the common tasks of discerning, shaping, and telling the client’s story. This kind of engagement requires that the review structure and evaluation adopt the elements and language of the story. It’s an orientation that triggers active reviewer participation and has real potential to address the problems now plaguing review."

The article suggests some steps to utilize in order to perform a more effective attorney review.  The article states, "First, at the outset, use the client’s story and its themes to define the goal of the review project. Articulate clearly the central purpose of every reviewer’s contribution: to enable the story to be told."

The authors refer to the rule of "7 Plus or Minus 2", which Mr. Losey discusses in his aforementioned article.  The authors state, "Linkage, gravity, and resonance can be seen as three overlapping circles. In practice, depending upon the story, the circles may vary in size and shape (e.g. oblong), but in the overlapping section we are likely to find the 7±2 documents that the trial team needs to tell the winning story."  A graphic is provided to illustrate this point as follows:

The article provides additional points, and includes a discussion of each individual point.  The following items are additionally addressed as part of a review that incorporates a "storytelling" strategy.

Second, use storytelling with the review team to create a sense of quest.

Third, use of a lawsuit’s stories serves to continually define and redefine the team’s analytical tasks, and to sharpen their focus as the review progresses. Use graphics and models to demonstrate the elements and cohesion of the story as the review is taking place. I

Fourth, share “discoveries” among the team. After all, many of the decisions made by reviewers are close calls, and need to be shared and socialized for consistency and accuracy. In part, this question of sharing is a matter for science.

Fifth, collaboration thrives on human face-to-face contact. The 2009 Text Retrieval Conference (TREC) validated this important point.

Sixth, use storytelling to generate the connections that will make document review a meaningful experience. The most profound concerns about document review have always revolved around the lack of connection between the purposes of the work and those doing it. Storytelling, on the other hand, is all about connections.

Seventh, remember that the document review may have to be explained and defended. If challenged as to its reasonableness, the review will have its own story to be told.

Sunday, January 8, 2012

E-Discovery: The stormy nature of the cloud


An article by David Meadows posted on insidecounsel.com website.

This article discusses cloud technology and how it will impact corporate law departments, and eDiscovery obligations.

The article states, "Companies of all sizes—public and private—seeking to reduce storage costs and improve overall efficiency and integration with partners are increasingly turning to the cloud to house information and run essential business functions remotely.

Accordingly for legal professionals, these questions loom:

  • How have SaaS-based platforms historically impacted the legal market, specifically e-discovery practices?
  • How will cloud-based applications impact corporate legal departments and their outside counsel in the future?"
The article further states, "With the movement of email, user files and workgroup data to cloud computing, new challenges for e-discovery have emerged. The sheer volume of data and the expense of storing it are the primary drivers behind the move to cloud computing. These drivers are also the primary reason preserving and collecting data from the cloud remains a challenge for organizations."

The article further suggests a lists of questions the legal department should ask IT to ask regarding the establishment of cloud based services:
  1. What level of control or access to the organization’s data is allowed by the cloud services provider?
  2. Does the service level agreement with the cloud services provider include language regarding extraction of data for e-discovery?
  3. Does the cloud services provider have documentation on their data preservation and collection processes?
  4. Has testing been performed on the collection process to validate the integrity of the data and timing?
  5. Does the cloud services provider keep and track appropriate chain-of-custody?
  6. Is there a defensible process for preserving and collecting data from the cloud services provider?
  7. What is the process for collecting data when the volume is too great to download from the cloud?
  8. For international organizations, can data be hosted in select global locations to ensure compliance with local, national and international data privacy laws?

Saturday, January 7, 2012

e-Discovery California: Proposed Formal Opinion Interim No. 10-0003 (VLO) is the Right Answer to the Wrong Question


An article by Perry L. Segal posted on the e-Discovery Insights blog.

This article discusses a California State Bar formal opinion, (formal opinion No. 10-0003 (Virtual Law Office)) a link to the proposal is provided in the article.

The opinion provides guidelines for California attorneys regarding the proper way to function as a Virtual Law Office.  However, the author points out some artificial restrictions that are inherent in the opinion, and indicates that there are some unrealistic expectations within the formal opinion.

The article states, "Section 1 examines confidentiality issues of employing a cloud-based system with a 3rd-party vendor and provides a five-point list of due diligence factors that includes, but isn't necessarily limited to:
  1. The Credentials of the Vendor
  2. Data Security (Well, that's not very helpful, but it goes on to refer the reader to California, New York and ABA opinions for guidance)
  3. Vendor's Transmission of Client Info in the Cloud Across Jurisdictional Boundaries or Other 3rd-Party Servers (You've heard - or read, I suppose - me pontificate on that one; the "digital roach motel" and "know where your data is")
  4. Attorney's Ability to Supervise the Vendor (As I've reminded you often, you mayhire competence, but not delegate this duty)
  5. Terms of Service of Contract with the Vendor (This is huge where the cloud is concerned. For example, many provider contracts contain language to the effect that, "Once you transfer it to us, it becomes our property.", a major no-no for attorneys)
The article further states:"Section 2 examines competence issues as follows:
  1. Proper management of attorney's intake system to determine one of the basics; "Who is the client?"
  2. Determining whether attorney may perform the requested services
  3. Determining that the client comprehends the services being performed (This document also refers to comprehension issues due to a language barrier)
  4. Keeping the client reasonably informed
  5. Determining that the client understands technology (When I read #3 above, it immediately triggered the thought that technology is another language both attorney and client must understand...)
  6. Determining when to decline to represent a client via a VLO, and whether representation may continue through traditional means."
The article offers the following commentary, "The hypothetical describes the VLO as a password-protected and encrypted portal that sits on a 3rd-party cloud. So far, so good. But then, it goes on to say that the attorney plans not to communicate with clients by phone, email or in person, but will limit communication solely to the portal.

Yeah, that covers a lot of us, doesn't it?

I understand that it's possible for attorneys to communicate this way, but is it probable? Does this opinion realistically apply to most attorneys; now and even into the future?"

The article goes on to discuss elements of the security requirement, and why the opinion is not necessarily practical in that regard.  In addition, the article discusses social media networks, and emails, and states that they are already "cloud" based, and questions how communications in those forms would fit into the scheme referenced in the formal opinion.

Friday, January 6, 2012

Research Evolves On Predictive Coding-Technology Assisted Review (PC-TAR)


An article by Barry Murphy posted on the eDiscovery Journal website.

This article looks at recent tests of Predictive Coding and Technology Assisted Review (PC-TAR).  The article promises more information to come on this topic soon.  In addition, the article looks at the success, or lack thereof, of PC-TAR, and whether or not it can be used to reduce costs.

The article states, "The lessons learned are plentiful, though not necessarily absolute – PC-TAR is new. Clearly, PC-TAR holds promise. Something that could make PC-TAR work better as a culling tool would be more targeted collections (making the overall corpus smaller, and thereby making the relevance rates higher). Too often, lawyers are conservative and cast a wide collection net. Also, if a vendor does a collection, there is no incentive to minimize and target it. In addition, the makeup of the document collection has a big bearing on whether results will be good or not. If data sets are bilingual, for example, text analysis may not work very well. Also, there is no way of doing text analysis on things like Tweets because of the abbreviations and short words, etc. There will have to be different ways to doing data analysis on this new type of data."

Dreams of LegalTech NY


An article by Jason Velasco published by the eDiscovery Journal website.

This article discusses the annual Legal Tech event in New York City.  The article states, "LegalTech NY is a magical time for me. It’s the one time per year that we come together as an industry and share all that is going on in our respective business."

In addition, the article further provides ample notice, so be forewarned, "We will be doing some on-the-spot interviews, so be prepared!!! I will also be doing an informal contest on the most creative booths at the show, so if you see me with a camera…don’t freak out…I’m not a competitor trying to steal your IP!"

P.S. Hope to see you at Legal Tech New York in 2012.

Thursday, January 5, 2012



A Press Release by Thomson Reuters, contact information listed as Scott Augustin.

This press release looks at merger activity related to law firms.

The article states, "Law firm mergers jumped by 67 percent in 2011, and are expected to rise again in 2012, according to the Hildebrandt Institute’s MergerWatch. Law firm mergers are already off to a strong start for the new year.

The Hildebrandt Institute tracked 45 completed law firm mergers that involved U.S. firms in 2011. This marked a substantial jump from 2010, which saw only 27 mergers, reflecting a slowdown in the overall demand for legal services at that point in time."

9 Top eDiscovery Trends for 2012


An article by Christine Taylor of the Taneja Group.

This article discusses specific eDiscovery services, and provides links to information regarding companies whom offer the referenced services.

The article analyzes the relationship between eDiscovery and various topics:

  1. Social Media
  2. Managing the Corporate eDiscovery Workflow
  3. Multi-Matter Management
  4. Cloud Computing and eDiscovery
  5. Big Data Collection
  6. Predictive Coding
  7. Cost Reductions
  8. Consolidation of service providers
  9. Back-up Tapes to Archiving

Wednesday, January 4, 2012

What is predictive coding and can it help me?


An article by Dera J. Nevin published by Canadian Lawyer Magazine.

This article discusses predictive coding, and provides a brief explanation as to what this term actually refers to.

The article states, "Let’s start with what predictive coding is not. It is not the “eyes on every document” approach of traditional linear review, where a lawyer starts with the first document and looks at every collected document until every document is reviewed. That approach works well when there is a small amount of documents or in circumstances that require human eyes on every page. However, that approach becomes unwieldy and expensive when hundreds of thousands or millions of pages require review.
Predictive coding remains poorly understood because it is not just a technology but also a project management technique. Predictive coding is a series of computer search and sampling technologies, coupled with a new approach to searching for and reviewing potentially responsive documents. Properly combining all of these elements permits expedited, cost-effective, and highly accurate document review."

The article further states, "Predictive coding is generally defined by these characteristics:
• it leverages small samples of documents (input criteria) to find other relevant documents;

• it reduces the number of non-relevant documents that lawyers must review, thereby reducing the overall amount of lawyer time spent reviewing documents; and

• unlike straight manual review of documents by lawyers, the results generated by predictive coding algorithms can be validated through statistics."

In addition, the author mentions, "The use of predictive coding for document review raises at least two legal issues. First, does the use of this technology meet counsel’s obligation to conduct a reasonable and defensible search for responsive documents under applicable discovery rules? Second, can counsel safeguard a client’s solicitor-client privilege when a privileged document is disclosed? To date, although some judges in the United States have spoken positively of predictive coding, its use has not yet been tested through a defensibility motion."

10 Social Media Law & Governance Resolutions for 2012


An article by Glen Gilmore posted on the Business2Community.com website.

This article provides suggested best practices to deal with social media network use within a corporate environment.  The article suggests certain resolutions for 2012, and outlines a roadmap for how to implement such plans.

The topics that are discussed include the following:

1. Create a Social Media Corporate Governance Team.
2. Establish/Update A Social Media Policy.
3. Create a Social Media Playbook
4. Establish a Social Media Communications Crisis Management Plan.
5. Take the Time to Learn the FTC’s Social Media Disclosure Guidelines.
6. Provide Your Employees with Social Media Training.
7. Create a Social Media Decision Tree.
8. Streamline Access to Compliance and Legal for Social Media.
9. Share Regular Updates on Social Media Best Practices.
10. Monitor, Assess and Audit Your Social Media Activities.

BONUS: Cleary Define Who Owns Company-Related Social Network Accounts.
Photo below is an illustration of a Social Media Decision Tree as referenced in item 7 above.

eDiscovery Confidential: A Look Ahead At 2012


An article by Kurt Jensen posted on the businesscomputingworld.co.uk website.

This article discusses 5 predictions related to eDiscovery that the author anticipates will take place in 2012.

The article references 5 topics and provides narrative about each to the following items:

1. No Country for Old Pricing
2. A Review to Remember
3. All Cloudy on the eDiscovery Front
4. The Human Element
5. For Whom the Judge Rules

Tuesday, January 3, 2012

Corporate Social Media - Civil Lawsuit E-Discovery


An article by Benjamin Wright posted on the Electronic Data Records Law website.

This article discusses the case of Zimmerman v. Weis Markets Inc. and examines a scenario where an individual's social media network information is requested by an opposing party that is a corporation.

The article states, "The Pennsylvania court compelled the employee to give to the employer his Myspace and Facebook passwords, user names and log in names."  No reasonable expectation of privacy was found to exist.

The article states, "Historically, in civil ediscovery, it has been more common to require an email user to turn over relevant messages -- one-by-one –- not to turn over his log-on credentials so the opponent can access all messages in his email account.

The configuration of social media sites is complex, and privacy for particular bits of information can often be adjusted with a fine degree of precision. For example, in Google Plus, a user can “post” information on his page, but make it viewable by only one friend. In effect, the “post” is analogous to a private email message to that friend."

The article looks at the logic of the Zimmerman case, and wonders what will happen if it is applied to different facts, such as the use of instant messaging cloud based services such as Yammer.  The article states, "Under the logic of Zimmerman, I can imagine the corporation’s opponent arguing that it should be given powerful log-on credentials so it can broadly view the part of the service used “internally” by the corporation."

5 storage and backup predictions for 2012: Symantec


An article by Vijay Mhaskar posted on the information week website.

This article discusses 5 projections that Symantec feels will take place in 2012.

The 5 topics discussed, which include remarks in the article around each comment are as follows:
  • Information governance will become a positive buzzword
  • Private cloud will not become a cloud in a box
  • Increased interdependence of physical and virtual technologies
  • Backup fights back in 2012
  • Organizations will need to implement their DR plans