Wednesday, February 29, 2012
An article by Charles Holloway posted on the Milllnet Smart e-Discovery Blog.
This article looks at some of the commentary about U.S. Magistrate Andrew J. Peck's recent order requesting the parties in a case to provide a protocol to use predictive coding technology for the attorney review being undertaken by the defendant.
The article discusses the case of Monique Da Silva Moore, et al v Publicis Groupe and MSL Group, and provides a link to information about that case. In addition, other articles discussing Judge Peck's opinion are also referenced in the article.
The article provides an interesting quote from Judge Peck regarding what his decision means for eDiscovery, "The opinion does not mean that computer-assisted review must be used in all cases, he says. Nor should the opinion be considered an endorsement of any particular vendor or of any particular review tool.
What the Bar should take away from this Opinion is that computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review. Counsel no longer have to worry about being the “first” or “guinea pig” for judicial acceptance of computer-assisted review. As with keywords or any other technological solution to e-discovery, counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI while adhering to Rule 1 and Rule 26(b)(2)(C) proportionality. Computer-assisted review now can be considered judicially-approved for use in appropriate cases."
An article by Barry Murphy published on the Forbes.com website.
The article discusses social media use, and the relationship between social media and eDiscovery.
The article states, "Who could have known how expensive it would be to process Terabytes of email only to find that a small percentage was even relevant to the case at hand? In the social media realm, however, companies can not hide behind ignorance. Instead, they can get ahead of social media by putting in place governance policies, processes, and tools to ensure that the email history lesson informs these new methods of collaboration.
Social media, like e-mail, has gained traction. In order to avoid the mistakes made in the email generation, companies must figure out ways on how to best collect and preserve social media content in the event it is needed for eDiscovery. Today, this practice is extremely immature. Across the board, 15% or less of eDJ’s The Cloud and eDiscovery survey respondents indicated having had to collect from a popular social media service."
The article goes on to provide some suggestions for establishing an policy to help govern social media use, and assist in litigation readiness when social media messages are subject to a request for production.
An article by Chris Dale on his blog the e-Disclosure Information Project.
The article provides a link to a four video segment on you tube, the videos are a discussion held at Legal Tech. The article states, "I have referred more than once to the webinar which Nuix organised just before LegalTech with the title The Convergence of eDiscovery and Information Governance. I moderated it, and the panel comprised Craig Ball, Attorney and Forensic Technologist, Stephen Stewart, CTO for Nuix and David Cowen, Managing Director for The Cowen Group.
We ran it also as a session at LegalTech, and I did not really focus on the significance of the camera at the front of the audience. We were in fact being filmed, and the result is now on YouTube in four parts – the first is here, and the rest follow automatically." A link is provided in Mr. Dale's article to the video segments.
Tuesday, February 28, 2012
An article by Joshua Gilliland, Esq. posted on the Bow Tie Law blog.
The article discusses a specific case where one of the parties objected to the format of production.
The article states, "In Indep. Mktg. Group v. Keen, the Defendant-Requesting Party requested the corporate Plaintiff conduct targeted searches with specific key words on specific custodians on the Plaintiff’s server. Indep. Mktg. Group v. Keen, 2012 U.S. Dist. LEXIS 7702 (M.D. Fla. Jan. 24, 2012)."
The article looks at the plaintiff's production method, and discusses a motion to compel the production of ESI by the defendant. The article states, "The Court observed the Plaintiffs production methodology included identifying the responsive ESI on their computer, printing it as paper and then scanning the paper as a non-searchable PDF. Indep. Mktg. Group.,
The Court explained that the Plaintiff did not produce the ESI as it was ordinarily maintained by printing the ESI as paper and then scanning the documents as non-searchable PDF’s. Indep. Mktg. Group. Additionally, the ESI was not produced in a reasonably useable form, because it was non-searchable.
The Court rejected Plaintiff’s undue burden and cost arguments, noting that there is a presumption that the producing party incurs its own production costs. Moreover, the Plaintiff never argued the data was not reasonably accessible, which would have been undercut by the fact they could search their computer for responsive ESI that was printed." Footnotes are provided in the article.
An article by William A. Ruskin posted on the toxic tort litigation blog of the law firm Epstein Becker & Green.
This article discusses the use of technology assisted review, and the attempt to reduce the number of attorneys required to perform an attorney document review.
The article states, "For those of us who work on document-intensive litigations, take note of Magistrate Judge Andrew J. Peck's (SDNY.) opinion released on February 24, 2012 in Monique Da Silva Moore, et al. v. Publicis Groupe and MSL Group, Case 11 Civ. 1279 (ALC)(AJP). Judge Peck's decision may be the first federal court opinion approving the use of computer-assisted review in place of “eyes on” document review. Citing recent studies, Judge Peck states “while some lawyers still consider manual review to be the 'gold standard,' that is a myth, as statistics clearly show that computerized searches are at least as accurate, if not more so, than manual review….While this Court recognizes that computer-assisted review is not perfect, the Federal Rules of Civil Procedure do not require perfection.”" A link to the case opinion is provided in the article.
The article further discusses how predictive coding and technology assisted review are utilized and what they accomplish. In addition, the article states in closing, "Predictive coding could provide substantial benefits to clients. On the other hand, law firms whose business models depend on leveraging large teams of associates and staff attorneys to conduct document review will increasingly have to explain to their clients why such costly efforts are necessary. Technology may allow medium sized firms to more effectively compete with large firms in cases with substantial discovery. In short, predictive coding makes good sense for the courts, the clients and the Bar."
An article by Sharon D. Nelson, Esq. posted on her blog Ride the Lightning.
This article provides a brief overview of a proposed revised rule of the ABA commission on Ethics. The proposed changes discussed are to Model Rule 1.6, and impact punishment for data breach of a client's data being held by a law firm.
The article mentions, "The factors to be considered in determining the reasonableness of the lawyer’s efforts are:
- The sensitivity of the information
- The likelihood of disclosure if additional safeguards are not employed
- The cost of employing additional safeguards
- The difficulty of implementing the safeguards
- The extent to which the safeguards adversely affect the lawyer’s ability to represent clients."
Monday, February 27, 2012
International Bar Association Publishes First Global Report on Impact of Social Media on Legal Profession
An article by Michel-Adrien Sheppard posted on the slaw.ca website.
The article looks at a recent report provided by the International Bar Association, which analyzed the use of social media by attorneys and judges.
Many statistics are provided in the article. Of interesting note, some of the statistics referenced are as follows:
- Almost 70 per cent of respondents felt that it is acceptable for lawyers and judges to have each other as contacts on online social networks.
- Over 90 per cent of respondents considered it unacceptable for lawyers and judges to post comments or opinions about fellow lawyers, judges, parties, or cases in progress on online social networks.
- The vast majority of respondents from jurisdictions comprising a jury system found it unacceptable for jurors to post comments or opinions about the judges, lawyers, parties, and/or cases which they are observing on online social networking sites.
- While a majority of respondents found it unacceptable for lawyers, judges, and jurors to post updates about proceedings (by posting ‘status updates’, ‘tweeting’, blogging, etc) on online social networks while a matter is pending before the courts strictly for informational purposes, the majority deemed the conduct acceptable for journalists.
- Over 85 per cent of respondents deemed it acceptable for lawyers to access and use the information found on the online social networking profiles of the parties in a case, which forms part of the public domain, as evidence in proceedings.
An article by Chad Breckinridge posted on law.com on the Corporate Counsel webpage.
This article discusses the use of cloud computing, and touches on how government regulations apply to data in the cloud.
The article states, "Thousands of Americans export data overseas every day without U.S. government authorizations and don’t even know it. How? By using cloud-computing services, ranging from personal services like Gmail to large-scale enterprise data storage solutions. While cloud-based services have become a valuable tool for improving efficiency, outdated government regulation leaves cloud users exposed."
The article further discusses the lack of clarity in the current regulations, "Of the U.S. agencies that regulate exports, only one—the Bureau of Industry and Security (BIS) within the Commerce Department—has provided even limited guidance on cloud computing. This dearth of guidance highlights the compliance challenge and also reflects a tacit acknowledgment that the existing regulations are poorly suited for this evolution in data handling.
BIS has released two cloud-computing advisories, both in the form of letters responding to requests submitted by unnamed cloud providers (not cloud users). The first letter, from January 2009, implicitly concluded that cross-border transmissions are exports, but it explained that the cloud service provider isn’t the exporter. This, BIS explained, is because the provider doesn’t receive the primary benefit of the transaction. BIS further reasoned that cloud providers’ services are not subject to the EAR because the provider is not shipping or transmitting anything (commodity, technology, or software) to the user. While helpful for cloud providers, BIS’s conclusions beg the question of whether a cloud user would be considered an exporter subject to the EAR."
Saturday, February 25, 2012
An article posted on the Enhanced Online News website by Iron Mountain, no author credit provided.
The article discusses the trend of law firms to move toward policies curtailing the use of paper records. The article provides insight into findings of a survey taken by Iron Mountain of 200 top law firms.
The article discusses the survey's findings and states, "
- The future is now – 10 percent of law firms surveyed have already made the transition from paper to primarily using electronic files;
- They don’t have to go at it alone – When it comes to destroying client records, a key step in the paper-to-electronic transition, 45 percent of law firms have access to and are aware of the guidelines set forth by their local or state bar association;
- And they are destroying their paper the right way – Most are using destruction methods for their paper information that are secure, with 42 percent of law firms relying on a vendor to destroy paper documents, and 27 percent using office shredders."
The article goes on to provide tips on how to implement a policy to move away from using paper based records.
Friday, February 24, 2012
An article by Philip Favro posted on the e-Discovery 2.0 blog.
This article provides further information about the recent stipulation and order in the Da Silva Moore v. Publicis Groupe case, where U.S. Magistrate Judge Andrew J. Peck requested a protocol for the use of predictive coding technology.
The article states the the plaintiff's are now objecting to the proposed protocol, "in challenging the order issued by the Honorable Andrew J. Peck, the plaintiffs argue that the protocol will not provide an appropriate level of transparency into the predictive coding process. In particular, the plaintiffs assert that the ordered process does not establish “the necessary standards” and “quality assurance” levels required to satisfy Federal Rule of Civil Procedure 26(b)(1) and Federal Rule of Evidence 702." The article then provides further analysis of the aforementioned rules.
The article further states, "Now that the plaintiffs have filed their objections, the eDiscovery world must now wait and see what will happen next. The defendant will certainly respond in kind, vigorously defending the ordered process with declarations from its own experts. Whether the plaintiffs or the defendant will carry the day depends on how the district court views these issues, particularly the issue of transparency. Simply put, the question is whether the process at issue is sufficiently transparent to satisfy Rule 26 and Rule 702?"
An article by Kevin F. Brady and Jill Agro posted on law.com on the Legal Intelligencer webpage.
This article discusses cost-shifting at the close of a litigation, and provides information as to the federal statutes that enables prevailing parties to seek eDiscovery costs from the opposing side.
The article states, "Cost-shifting is available under Rule 54(d) only where a federal statute, the Federal Rules of Civil Procedure or a court order expressly provides for an award of costs to a prevailing party. Winners wanted cost-shifting and losers were grateful that it was not a viable option. But a seldom-used 2008 amendment to federal statute 28 U.S.C. § 1920(4) changed the game for litigants in federal court.
Section 1920(4) allows federal courts to tax the costs "for exemplification and the cost of making copies of any materials where the copies are necessarily obtained for use in the case." Prior to the 2008 amendment to the statute, § 1920(4) permitted cost-shifting for the exemplification and copying of "papers"; the amendment changed "papers" to "any materials," to reflect that the costs of e-discovery are recoverable."
The article further references a recent specific case, in which other precedent cases for cost-shifting were addressed. The article states, "The recent decision in In re Aspartame Antitrust Litigation is one of the first decisions providing exhaustive detail on the topic and explains the factors courts will consider in deciding whether to shift costs and which costs are taxable to the nonprevailing party. There, the U.S. District Court for the Eastern District of Pennsylvania awarded more than $500,000 for the costs of e-discovery to the prevailing parties in an antitrust litigation matter." The article references additional cases that were cited in the Aspartame litigation.
Judge Peck Issues Order Addressing “Joint Predictive Coding Protocol” in Da Silva Moore eDiscovery Case
An article by Matthew Nelson posted on the e-Discovery 2.0 blog.
This article provides further commentary on an important development that took place last week, the ruling by U.S. Magistrate Judge Andrew J. Peck that enabled the parties involved to outline a protocol for the use of predictive coding in a specific case.
The article states, "Litigation attorneys were abuzz last week when a few breaking news stories erroneously reported that The Honorable Andrew J. Peck, United States Magistrate Judge for the Southern District of New York,ordered the parties in a gender discrimination case to use predictive coding technology during discovery. Despite early reports, the parties in the case (Da Silva Moore v. Publicis Group, et. al.) actually agreed to use predictive coding technology during discovery – apparently of their own accord. The case is still significant because predictive coding technology in eDiscovery is relatively new to the legal field, and many have been reluctant to embrace a new technological approach to document review due to, among other things, a lack of judicial guidance."
The article further describes the facts of the case, "Judge Peck ordered the parties to submit a Joint Protocol for eDiscovery to address eDiscovery generally and the use of predictive coding technology specifically.
The parties submitted their proposed protocol on February 22, 2012 and Judge Peck quickly reduced that submission to a stipulation and order. The stipulation and order certainly provides more clarity and insight into the process than the status conference transcript. However, reading the stipulation and order leaves little doubt that the devil is in the details – and there are a lot of details." A link to the stipulation and order is provided in the article.
Thursday, February 23, 2012
An article by Skip Westfall posted on the eDiscovery Plus blogsite.
This article discusses eDiscovery expenses, and provides advice regarding the implementation of an information governance protocol as a means of reducing long term costs.
The article discusses eDiscovery costs and states, "Many corporations and law firms see the expense as a nuisance in the litigation life cycle. I have actually had counsel tell me before that they have tried and will continue to try and cut deals with opposing counsel to say "You don't ask for my electronic data and I won't ask for your electronic data." This tactic will likely be challenged as time goes on and become less and less possible.
But what if corporations used this information going forward not only on one case but as a way to track litigation? What if General Counsel could go to Human Resources or the corporate risk management team with valuable data that was mined from the e-discovery efforts of the litigation department?""
An article by Craig Ball, Esq. on his blog Ball in Your Court.
The article discusses the Google v. Oracle dispute that has been the subject of recent decisions that discuss eDiscovery obligations, and are related to possible waiver of privilege. At issue in the case was an inadvertent production of one draft of a document, where other copies of the document were withheld due to a privilege assertion. The court held that the document did not meet the requirements to substantiate a claim of privilege, and the document in question is being admitted, damaging Google's position in the case.
The article states, "The e-discovery nexus arises from the way the copies were retained (reportedly as autosaved backups) and from the failure to intercept the copies before production. There are all sorts of bright ideas emerging from smart folks who have groundbreaking tools they could sell to that search naif, Google, to help it avoid this ever happening again. Reading some of these missives made me think of a post I wrote two years ago for the EDDUpdate blog called, “A Quality Assurance Tip for Privileged ESI.” A link to the referenced article from two years earlier is provided in Mr. Ball's article.
The article further goes on to state, "One thing you should absolutely do is search the material about to be produced for examples of confidential attorney-client communications you know exist. That is, the stuff you most fear the other side seeing. Examples are probably right there in your file and e-mail. You should have a set of unique searches composed to ferret out these bombshells in anything you send to the other side. It’s the stuff for which you most need quality assurance and control, because it’s the stuff that would be most prejudicial if it crossed over."
In addition, the article also provides further advice, "I recently commented on a long, thoughtful post of Ralph Losey’s discussing Mt. Hawley Ins. Co. v. Felman Production, Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010). I summed up my sentiments this way:
For all the many challenges there are to isolating privileged material in voluminous ESI, finding the privileged items well known to counsel and appearing in their own files need not be one of them." A link to comment made to Ralph Losey's post is also provided.
An article by Mike Hamilton, J.D. posted on the e-Discovery Beat website.
This article discusses recent pilot programs being run by courts at both the federal and state levels. The author advises personnel that is involved in a dispute where eDiscovery will be involved to be aware of these court programs as to follow their guidance to assist in establishing a workflow process.
The article provides 3 tips from the 7th Circuit's Pilot program for eDiscovery as follows, "Here are a few of the program’s specific e-discovery principles:
- Select an e-discovery liaison/e-discovery project manager. At the beginning of a case, each litigant must appoint an e-discovery liaison who is educated about their party’s own e-discovery efforts (e.g. access to IT contacts with knowledge of their IT infrastructure and internal systems and processes).
- Identify ESI. Filtering techniques, such as keyword searching, de-duplication and data faceting, and foreseeable preservation issues, such as how to handle RAM, updated metadata and backup data, should be discussed at the meet and confer so e-discovery preservation and collection parameters can be clearly and narrowly defined.
- Clearly communicate when creating and responding to preservation requests. Before issuing preservation requests, specific information like the background or reasoning behind the requests must be included. When responding to a request, the responding party should identify: (1) what data it will preserve, (2) arguments concerning the request, and (3) additional preservation concerns."
The article further discusses state developments, and looks at the New York State protocols that have been recently implemented.
The article further states, "Per the words of Judge David Waxse, in the recent webcast “2012 E-Discovery Case Law Forecast: Hindsight is 20/20, “the court is not looking for a perfect e-discovery process, its only looking for a reasonable one.” These court pilot programs can serve as helpful guides for litigants seeking a “reasonable approach” for addressing the e-discovery process."
An article by Connecticut State's Attorney General George Jepsen's office posted on the shoreline plus website.
“This not only raises personal privacy issues, but it makes the collected personal information an attractive target for hackers and identity thieves,” Attorney General Jepsen said. “Google has not given users a real choice to participate and the policy makes it practically impossible to opt out, short of exiting all Google services,” Jepsen said.
In a letter to Larry Page, Google’s chief executive officer, the attorneys general outlined their issues and requested a meeting with the company as soon as possible to “work toward a solution that will best protect the privacy needs of those who use Google’s products.”
Wednesday, February 22, 2012
An article by Esther Shein posted on the networkcomputing.com website.
This article discusses eDiscovery costs, and technology trends that are being observed by service providers.
The article states, "The good news is companies are becoming increasingly familiar with predictive coding, but the more unsettling news is they are facing up to $20 million in annual e-discovery expenses. According to the third annual study of streamlining and reducing the cost of e-discovery on inside counsel at mostly Fortune 1000 companies, 81% of respondents are familiar with predictive coding to determine whether a document is appropriate to include in a case, states legal industry analyst Ari Kaplan, who conducted the study in tandem with e-discovery provider FTI Technology. Predictive coding is an algorithm that provides the ability to review documents combining artificial intelligence with a lawyer's input."
An article by Craig Ball posted on law.com on the LTN webpage.
The article discusses proportionality and the need to preserve potentially relevant data when litigation is reasonably anticipated.
The article states, "Proportionality in preservation isn't something you get down at the courthouse. Proportionality begins at home.It begins by understanding the mechanics of preservation, helping you select the most cost-effective approaches and manage risk." The article then outlines several ways to approach preservation obligations, including the "Do Nothing" approach.
The article further states, "It's time we change the maxim from "preserve broadly" to "preserve carefully." Many preservation efforts are thoughtless and mechanical, designed by those loath to turn a discriminating eye to the task. While no approach to email preservation is wholly without risk or cost, knowing your options helps you to "right size" the approach.
- There are multiple ways to balance risk and cost when preserving email.
- Proportionality begins at home; that is, proportional preservation is up to you.
- Saving everything eliminates one risk, but introduces others.
- Three things can happen when using custodial-directed hold — and two of them are bad.
- Custodial-directed hold should be a part of most legal holds, but not the only part.
- Microsoft Exchange Server 2010 better supports mail preservation for litigation.
- "Preserve broadly" is safe, but expensive. "Preserve carefully" is safe and cost-effective."
An article by Daryl E. Shetterly posted on the corporatecomplianceinsights.com website. This is part 2 of a 2 part series.
This article provides tips on factors that can be addressed in order to effectively reduce eDiscovery costs.
The article discusses the following tips:
- Building the Right Team;
- Using the Right Technology;
- Having a Quarterback assigned to oversee the project.
A link to part 1 of this article is also provided at the close of this article.
Tuesday, February 21, 2012
An article by Evan Koblentz appearing on law.com on the LTN webpage.
This article discusses the DOJ and a protocol they have put forth regarding eDiscovery obligations.
The article states, "The government's Joint Electronic Technology Working Group, led by the Department of Justice, began developing a best practices guide for e-discovery in the fall of 2009. The 21-page document includes principles, specific recommendations, strategy tips, and a case checklist. It was revealed at a federal software summit in Washington on Feb. 10. Circulation began last week.
All of the department's 6,000 federal prosecutors will receive training based on the new document. The document will also be used by U.S. Attorneys, investigative agencies, judges, and various law enforcement divisions, explained Andrew Goldsmith, national criminal e-discovery coordinator." A link to the protocol document is provided in the article.
The article further states, "The division is also figuring out how to use commercial e-discovery software, typically designed for civil matters, in its criminal cases. "There's nothing being written for criminal prosecutions and that's an issue. We're trying to get a round peg into a square hole," Goldsmith's assistant coordinator John Haried said at the recent conference..." A link to information about the referenced conference is included in the article.
An article by Gaston Kroub posted on the Clean Techies Blog.
This article discusses eDiscovery obligations during litigation, and looks at the reach of eDiscovery requests for documents that are not in the possession of the parties involved in the litigation.
The article states, "...what is becoming increasingly common, particularly in industries such as software/ecommerce and biotech that are heavily-driven by private-sector funding, is for those investors to become the target of subpoenas seeking information regarding their relationship with their portfolio company that is ensnared in a litigation, as an alleged infringer or even as a patentee.
And the Cleantech investment community is sure to join those other industries as a subpoena target as patent litigation involving investor-backed Cleantech companies increases.
In light of the recent Order in the In Re Google patent litigation, the Cleantech investment community should prepare for a limited ability to completely quash discovery subpoenas in current or future patent litigation involving their respective portfolio companies as litigants."
Saturday, February 18, 2012
This link provides a video interview posted on the law.com website on the LTN webpage.
The video consists of an interview of Browning Marean, senior counsel at DLA Piper, taken by LTN magazine's editor-in-chief, Monica Bay. The interview provides insight into crafting proper responses to eDiscovery requests.
BULLETIN : US Justice Department signs ‘protocol’ with criminal defense bar, US courts on exchange of e-discovery in criminal cases
An article by ACEDS staff posted on the aceds.org website.
This article discusses an important development that pertains to criminal procedure and a new protocol that has is being implemented regarding eDiscovery.
The article states, "The US Department of Justice, the federal courts and criminal offense bar have taken a major step to bring e-discovery into the criminal courtroom and in pretrial proceedings. The Justice Department prosecutes thousands of criminal cases each year for a wide range of crimes that are contained in various titles of the US Code, particularly Title 18, 26 and 31. The crimes range from arms trafficking to wire fraud and hundreds in between.
A new "Protocol," signed earlier this week, has been negotiated for 18 months. It was produced by the Joint Electronic Technology Working Group (JETWG), which "was created to address best practices for the efficient and cost-effective management of post-indictment ESI discovery… in federal criminal cases.""
The article further provides the specific details of the protocol. The protocol details 15 categories of information that would be subject to production in a criminal proceeding.
Friday, February 17, 2012
An article by Eoin Blacklock posted on the computing.co.uk website.
This article discusses data loss, and looks at ways to reduce human error. The article also focuses on the increasing use of mobile devices, and the risks associated with this trend.
The article states, "In a world adopting workforce mobility and flexibility more and more, we have to accept that sensitive data is going to be carried on portable devices, and take steps to secure it. Unfortunately, too many organisations are failing to do this."
The article further states, "Nearly all instances of loss or theft of data are triggered by human error, a risk that can never be completely eliminated. Staff may be reprimanded over lapses of concentration, but at the end of the day, it is unreasonable to expect them to accept full responsibility for looking after critical data when a safer alternative is available. 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."
An article posted on the LeClair Ryan website, no author credit provided.
The article discusses the U.S. courts, and how they address issues involving data that resides in foreign jurisdictions.
The article states, "Generally, parties involved in cross-border litigation in U.S. courts have been faced with a difficult choice -- a "Hobson's Choice" -- whenever compliance with U.S. discovery demands has raised conflicting legal obligations in non-U.S. jurisdictions. For example, at the same time as U.S. courts may seek to compel litigants and third-party witnesses to produce documents and other information, and impose serious sanctions for failure to comply, the production of those documents and information may constitute a violation of foreign data protection rules, such as the 1995 EU Data Protection Directive, thus raising the possibility of hefty sanctions for complying with those U.S. discovery orders."
The article references a recent U.S. based attempt to address this issue further, "The American Bar Association has recognized this dilemma and, this week -- less than two weeks after the EU Commission published its first draft of the new EU Data Protection regulation wherein new sanctions of up to 2 percent of annual worldwide turnover have been proposed for serious breaches, which include an unlawful data transfer to the U.S. -- passed Resolution 103A, "urg[ing] that, where possible in the context of the proceedings before them, U.S. federal, state, territorial, tribal and local courts consider and respect, as appropriate, the data protection and privacy laws of any applicable foreign sovereign, and the interests of any person who is subject to or benefits from such laws, with regard to data that is subject to preservation, disclosure, or sought in discovery in civil litigation.""
Thursday, February 16, 2012
Survey Says… Information Governance and Predictive Coding Adoption Slow, But Likely to Gain Steam as Technology Improves
An article by Matthew Nelson appearing on the e-Discovery 2.0 blog.
This article discusses the recent Legal Tech conference in New York, and provides insight into survey results from information gathered at that event.
The article discusses two key current topics related to eDiscovery, predictive coding and information governance.
The article states, "Although 84% of respondents are familiar with the term information governance and 73% believe that an integrated information governance strategy is critical to reducing information risk and cost, only 19% have implemented an information governance solution. These results beg the question, if information governance is critical, then why aren’t more organizations adopting information governance practices?"
The article further states, "Much like the term information governance, most respondents were familiar with predictive coding technology for electronic discovery, but the survey results indicated that adoption of the technology to date has been weak. Specifically, the survey revealed that while 97% of respondents are familiar with the term predictive coding, only 12% have adopted predictive coding technology. Another 19% are “currently adopting” or plan to adopt predictive coding technology, but the timeline for adoption is unclear." A link to the survey results is provided in the article.
There is No "Small Company" Excuse to the Duty to Preserve Emails or other Electronically Stored Information (ESI)
An article by Esteban Herrera, Jr. posted on the Louisiana Law Blog.
This article discusses the preservation obligations associated with the discovery phase of litigation, and the associated eDiscovery obligations of preserving electronically stored information.
The article discusses a recent specific case, and states, "Even for a “small company,” the failure to comply with discovery obligations to preserve electronically stored information (ESI) can be dangerous. The case of Perez v. Vezer Industrial Professionals, Inc. 2011 WL 5975854 (E.D. Cal. 2011) involved a truck accident, but the lawsuit quickly reached the point where the plaintiff sought a default judgment against the defendant for failure to preserve emails and other ESI."
Wednesday, February 15, 2012
An article by Michelle Sherman posted on the findlaw.com website.
This article discusses the Federal Civil Rules of Procedure and the impact that eDiscovery is having upon the use of social media networks.
The article discusses social media use by corporations and states, "These communications and online activity should be thought of as an extension of "electronically stored information" ("ESI") and the discovery rules that apply when a company is in a legal dispute that would trigger a duty to preserve company emails and electronic documents. When the Federal Rules of Civil Procedure were amended in 2006 to include ESI, the term was "intended to be read expansively to include all current and future electronic storage mediums." Notes of the Advisory Committee to the 2006 Amendments to Rule 34. It does not matter how brief the storage period, courts will treat the information as discoverable. Accordingly, even storage in the "cloud" or on a social networking site will be treated as discoverable ESI."
The article provides some tips as to how to address obligations associated with preservation of social media information. Included in the tips provided by the article, the author states, "Companies should update their document retention policy to include social media activity. The procedures that the company is following for e-mails in terms of storage and retention periods may be a good starting point. By having established processes and following them, adversaries in litigation will have a hard time arguing that the company has destroyed relevant, and possibly damaging information. The standard for preservation is "reasonableness and proportionality" so modeling it after the procedure for retention of company emails makes sense and is internally consistent."
An article by Steven C. Bennett of Jones Day, posted on the Metrocorpcounsel.com website.
This article discusses the recent International Principles on Discovery issued by the Sedona Conference. A link to the principles is provided in the article. There are also a number of footnotes provided in the article that provide useful resources on this topic.
The article states, "The International Principles are the product of nearly six years of work, involving representatives from the legal profession, judges, privacy and compliance leaders, academics and discovery service vendors from around the globe."
The article further provides an outline of the principles, as follows: "The new Sedona International Principles identify six essential principles for reconciliation of the potential conflict between privacy and disclosure in the context of U.S. litigation:
- With regard to data that is subject to preservation, disclosure or discovery, courts and parties should demonstrate due respect for the data protection laws of any foreign sovereign and the interests of any person who is subject to or benefits from such laws.
- Where full compliance with both data protection laws and preservation, disclosure, and discovery obligations presents a conflict, a party’s conduct should be judged by a court or data protection authority under a standard of good faith and reasonableness.
- Preservation, disclosure and discovery of protected data should be limited in scope to that which is relevant and necessary to support any party’s claim or defense in order to minimize conflicts of law and impact on the data subject.
- Where a conflict exists between data protection laws and preservation, disclosure, or discovery obligations, a stipulation or court order should be employed to protect protected data and minimize the conflict.
- A data controller subject to preservation, disclosure or discovery obligations should be prepared to demonstrate that data protection obligations have been addressed and that appropriate data protection safeguards have been instituted.
- Data controllers should retain protected data only as long as necessary to satisfy legal or business needs. While a legal action is pending or remains reasonably anticipated, data controllers should preserve relevant information, including relevant protected data, with appropriate data safeguards."
An article by Ben Kerschberg published by the Forbes.com website.
This article discusses the recent high profile KPMG case, and the order that was upheld on appeal requiring KPMG to preserve 2,500 hard drives.
The article states, "In Pippins v. KPMG LLP (S.D.N.Y. Feb. 9, 2012), Pippins and other putative class plaintiffs sued KPMG under the Fair Labor Standards Act (“FLSA”), which guarantees time-and-a-half pay for overtime above 40 hours for certain jobs. The plaintiffs, who worked as Audit Associates, alleged that they were deliberately denied overtime wages. The FLSA’s overtime rule does not apply to those employed in an executive, administrative, or professional capacity that involves discretion and independent judgment “with respect to matters of significance” and requires either (i) an advanced knowledge of science, or (ii) specialized intellectual instruction." A link to the FLSA is provided in the article.
The article further states, "The court found that as long as KPMG was allowed to use the discovery stay during the determination of class certification, it would be impossible to determine whether the relevance of information stored on even a single hard drive. The court reiterated the magistrate’s finding that the individual employees were “key players . . . likely to have relevant information” about the nature of their jobs, and thus whether they were due overtime under the FLSA. Accordingly, KPMG had a duty to preserve every Audit Associate’s hard drive when the suit was first filed “because at that point it became foreseeable that each and every Audit Associate could be a potential plaintiff.” As a result, it was “premature” to permit any hard drives to be destroyed."
Tuesday, February 14, 2012
An article by Sean Doherty posted on law.com on the LTN webpage. (Picture is of U.S. Magistrate Judges Peck, Grimm and Facciola...some of the leading voices regarding "Best Practices" for eDiscovery).
Predictive coding recommended in a federal opinion...Yes...it has happened. The article states, "In what appears to be the first federal case to adopt the use of automated coding, Peck, in Da Silva Moore v. Publicis Groupe et al., ordered the parties to adopt a protocol for e-discovery that includes the use of predictive coding..." A link to the opinion is provided in the article.
The article further states, "Paul Neale, CEO of DOAR Litigation Consulting and Gene Klimov, vice president of Discovery Consulting, advised the plaintiffs and the court on developing a protocol for e-discovery that used iterative sample sets of 2,399 documents from a corpus of 3 million documents (95% confidence level; plus or minus 2% variance). In effect, the parties will review from 15,000 to 20,000 documents to instruct Axcelerate on what documents are relevant in the litigation, which is no easy matter in class actions like Da Silva Moore or other cases that plead multiple issues of law and fact."
A further important comment is provided in the article as well, "Asked whether the e-discovery protocol will simply move the argument from determining keywords to determining relevance, Neale says "no," not if the technology works to the satisfaction of both parties and the court."
P.S. Stay tuned...this case will be one to watch, since it may become the "poster child" for technology assisted review a/k/a predictive coding.
A blog post by Lauren Vilders posted on the Cataphora.com website, on their blog page.
In the spirit of Valentine's Day the article provides an infographic regarding romantic communications in the digital age, and providing insight into present-day communication patters. A link to the full infographic is provided in the article.
Monday, February 13, 2012
An article by Tim Bovy posted on the inforiskawareness.co.uk website.
This article, said to be part 1 of a longer writing, provides tips for how create and implement and eDiscovery plan.
The article states, "In my introduction to this series, I quoted Julie Colgan regarding the position of Information Management in the EDRM : Information Management shouldn’t be depicted as a “step”, rather as an overarching activity and guiding principle to the eD process." What I particularly like about Ms Colgan's observation is that it rings so fundamentally true.
Your IM plan needs to form a roof over your organisation's entire information management ecosystem. Think of this roof as having multiple lights that illuminate information critical to your organisation's business requirements. eDiscovery is merely a single point of illumination among many others." Links are provided to the introduction, and to the Information Management resources provided by the EDRM.
The article goes on to provide narrative regarding the following topics:
1. Define the information management environment
1.1 Define and communicate the information management strategy
1.2 Define and communicate the information management compliance framework
An article posted on the Orange Legal Technology blog.
The article discusses sampling tests that should be performed as part of a predictive coding workflow. The article states, "A quality measure can address the question: Of the documents that have been marked nonresponsive, what percentage of those documents is actually responsive? This measure is called “elusion,” reflecting the number of documents that have eluded identification.
Rather than estimate this value directly, elusion leads to a quality control measure with a very simple statistical test to determine whether the elusion rate exceeds a reasonable criterion. What percentage of documents could you leave behind and still find your process to be reasonable?"
A link to a case study (Used by Permission of Herbert L. Roitblat, Ph.D.) undertaken in 2010 is provided in the article, and this case study provides a valuable resource to any service provider that offers predictive coding a/k/a technology assisted review.
An article by Teresa Pritchard Schoch posted on law.com on the LTN webpage.
This article discusses knowledge management practices, and the adoption of such practices by corporations.
The article states, "So what is KM in simple terms? It is perceived as collectively and systematically creating, sharing, and applying knowledge to achieve an organization's objectives. People, processes, and technology are usually the primary components that comprise knowledge management. Other than that, there is not much consensus on the definition of KM, even though there have been numerous contributions to defining the concept by many information professionals.
Experts distinguish between tacit and explicit information. Tacit information is the unexpressed knowledge that people have, while explicit information has been expressed in oral or written form to share tacit information with others; externalization makes tacit knowledge explicit knowledge. The reason these concepts are relevant is because knowledge creation is perceived as the conversion of tacit information to explicit, then back again."
The article further states, "On the electronic side of records management, a firm that has adopted a retention schedule, and, is applying it to its electronic records, will have developed a system for capturing certain information about a document (that is considered a record) at the time of its creation. The decision as to whether a document should be part of the firm's knowledge management system can be made at the time of the document's creation. Ideally, a prompt regarding whether a final document should be included in the knowledge management system would exist in the records management system. Again, the combination of records and knowledge management would be seamlessly achieved."
An article by Philip Favro posted on the e-Discovery 2.0 blog.
The article discusses the ongoing legal dispute between Google and Oracle. The article states, "Google had argued that the email was privileged under Upjohn Co. v. United States, asserting that the message reflected discussions about litigation strategy between a company engineer and in-house counsel. While acknowledging that Upjohn would protect such discussions, the court rejected that characterization of the email. Instead, the court held that the email reflected a tactical discussion about “negotiation strategy” with Google management, not an “infringement or invalidity analysis” with Google counsel.
Getting beyond the core privilege issues, Google might have avoided this dispute had it withheld the eight earlier drafts of the email that it produced to Oracle."
Sunday, February 12, 2012
An article by Doug Austin posted on the eDiscovery Daily Blog.
This article discusses an upcoming series of articles that will be released, these articles will feature interviews taken at Legal Tech New York of thought leaders in the eDiscovery industry. Those interviewed include George Socha, Tom Gelbmann and Craig Ball.
Saturday, February 11, 2012
An article by Cecil Lynn III posted on law.com on the LTN webpage.
This article discusses recent ediscovery disputes that were resolved through court decisions in 2011. This article provides a useful and comprehensive list of case citations at the end of the article, as well.
One of the matters discussed was, "One of the year's most controversial opinions came from New York City-based U.S.D.C. Magistrate Judge James Cott, who seemed to suggest that the concept of proportionality should not be applied when assessing a party's preservation obligation. See Pippins v. KPMG LLP, 11 Civ. 0377 (S.D.N.Y. Oct.7, 2011). Even more surprising was Cott's broad definition of "key players" for whom electronic information must be retained — sweeping in all potential class members, including thousands of defendants' current and former employees who may never be plaintiffs or witnesses in the case."
Friday, February 10, 2012
This is an article by Heather Clancy posted on the smartplanet.com website.
This article discusses the use of kCura's hosted review platform, and the data analytics services that can be used via that service.
The article states, "kCura’s Relativity is a well-known application among the legal community for considered heaps of structured and unstructured data that might be required for lawsuits or investigations. Structured data would be something such as records in a database or enterprise resource planning (ERP) software. Unstructured data takes the form of documents or even communication such as instant messages.
“Both types are subject to the same rules and procedures, but it is increasingly difficult for corporations to monitor this,” said Jay Leib, chief strategy officer for kCura.
Relativity helps automate the search and review for documents and information that might be “responsive” to information requests — it also helps identify data that isn’t relevant and that might complicate matters. kCura pitches two primary benefits: the software’s ability to help save time and the application’s ability to help human investigators focus the bulk of their attention on reviewing the information that is really relevant, Leib said."
Thursday, February 9, 2012
An article by Gary MacFadden on the enterprise management blog, The Compleat ECM Angle.
This article discusses the author's impressions of the recent Legal Tech 2012 Conference held in New York last week.
The article provides information about certain exhibitors, and different types of technology that are offered within the litigation support community.
The article further looks at important topical issues such as cloud computing; handling electronically stored information during eDiscovery; and information governance.
The article poses an interesting lists of questions to consider, as follows: "
- Who owns the information governance process?
- Who owns the ESI?
- Where is the ESI?
- How much ESI do we have?
- How fast is it growing?
- What can we defensibly delete?
- What ESI that is not a record should I keep?
- How long should I keep it?
- Who should have access to it?
- What are the risks and benefits of keeping or deleting ESI?"
The article also provides discussion of the recent release of the IMRM (Information Management Reference Model) released by the EDRM organization, and provided here below:
An article by David Snow posted on law.com on the LTN webpage.
This article discusses the recent Legal Tech Conference held in New York City last week, and addresses two hot topics: Information Governance; and Predictive Coding.
The article states, " The two topics are proving to be major buzzwords for 2012, and for good reason. They're complex and intimidating, in part because of the risks and expenses associated with them, and in part because of the understandable angst felt by many in the legal industry over being among early adopters of new technology."
The article goes on to further state, ""Information governance in particular can have a kind of 'boil the ocean' stigma to it," says Dean Gonsowski, e-discovery counsel for Symantec, who came to the company through its acquisition of Clearwell Systems. Gonsowski, who attended LegalTech and was involved with the survey, points out that one challenge is that a coalition of people from different departments need to be brought to the table to address the complexity of information governance. "If not presented correctly, it can get folks' eyes to glaze over. It can be too big. What we tell folks is that it's more of a pyramid. People are already doing parts of it, like document retention programs, to build on."
Part of the concern over predictive coding in electronic data discovery, aka computer-assisted coding to parse documents during the document review process, is that it's a cultural shift for lawyers to accept that machines can review documents well enough to be defensible in court."
P.S. These are two of the favorite topics of the authors of the Litigation Support Technology and News blogs, and they will both continue to be important topics for the legal profession to address.
An article by Ted O'Neil on his blog eDiscovery & Compliance Made Simple.
This article is said to be the first part in a series, and discusses eDiscovery processes. The article states, "Faster, better, cheaper was clear theme from LegalTech 2012…Big Data costs continue to drive organizations to look for faster, better, cheaper.
The hidden Return on Investment in eDiscovery & compliance lies in understanding the entire spend…not just the obvious third party costs and understanding and quantifying risks in the current processes."
The article further states, "The key to success is having developed a “base-line” understanding of the current process & identifying all key players within the organization and all vendors and 3rd parties involved in the end-to-end process. The nature of eDiscovery tends to affect IT, formal or informal records management policies and processes, Compliance, Business lines and of course, the legal team."
Wednesday, February 8, 2012
An article by Brett Burney posted on law.com on the LTN webpage.
This article discusses the EDRM (Electronic Discovery Reference Model) and looks at the eDiscovery process, and the various stages that typically take place. The article also discusses the project management diagram that was created by the EDRM organization. The project management diagram is provided in the article, and is also provided below:
The article further states, "The boxes included in the EDRM Project Management Framework are Scope, Plan, Execute, Change Management, and Close. The middle three boxes are surrounded by a box of "Quality Control." I also appreciate the inclusion of the "Change Management" box which recognizes the inevitable alterations and modifications that are inherent in an e-discovery project, usually based on the changes in the scope of litigation or perhaps a change in legal strategy."
In addition the article provides certain tips, and available technological solutions that can assist with the management of an eDiscovery process.
The author also provides the following information regarding documentation that is needed at a minimum in order to effectively manage the eDiscovery process, "...a documentation protocol should include:
• client, matter, and task;
• who requested the task (e.g., stakeholder, lawyer, client);
• date and time the task was started and completed;
• name of person who engaged or completed the task;
• notes, summary, problems encountered, resolutions;
• software and hardware used; and
• chain-of-custody considerations (where were the results delivered?)."
An article by Sofia Adrogué and Caroline Baker published by the Texas Lawyer and posted on law.com on the LTN webpage.
This article discusses the current state of the eDiscovery industry in the U.S.
The article states, "E-discovery is a $20 billion industry that is growing exponentially. It has become a staple of American civil litigation -- the most expensive and time-consuming part of pretrial practice.
Given the volume of emails alone (more than 3 billion U.S. business emails daily); that 90 percent of all documents generated are electronic; and that a single hard drive has a storage equivalency of 40 million pages, e-discovery is the proverbial "Pandora's box" that Judge Lee H. Rosenthal of the U.S. District Court for the Southern District of Texas so aptly described in her summer 2010 article inThe Advocate . Rosenthal chronicled the state of affairs: "Is e-discovery working? Yes (most cases); In every case? No; Systemic Failure? No; Perception of a larger failure? Yes (to some extent). . . .""
The article examines specific topics related to eDiscovery, such as: metadata; international issues; cooperation; and ethical considerations.
Tuesday, February 7, 2012
A post by Elizabeth Kofsky, with a guest blog post by Dave Martin, appearing on the open text blog.
This post discusses information governance topics.
The article states, "To most the word governance is synonymous with compliance, which is then in turn synonymous with records management. After that the focus becomes very specific. What I recommend people do when trying to understand how they should approach governance is to approach it as a strategy and make sure that strategy involves and intertwines three things: people, process and technology."
The article goes on to provides tips for an effective governance policy, and examines how governance should be implemented in environments where Sharepoint is being utilized.
An article by Vincent M. Schiavo posted on the sys-con media website.
This article discusses the use of social media networks by employees in the workplace. The article discusses some challenges associated with the use of social media networks, and some methods that can be used to reduce corporate liability risk associated with social media use.
The article states, "As beneficial as social media is for business - and it surely is as organizations are beginning to realize that it also brings with it a multitude of problems. Most of these problems have been seen before, going back to the genesis of the Internet: lost productivity, misuse of network bandwidth, exposure to unmanaged content, security threats, and confidential data leakage. But some of them are unique to and exacerbated by this new social media phenomenon that has exploded onto the Internet over the past few years." The article discusses the use of mobile devices as well, and states that such trends are increasing the possibility that a corporate network can be hacked.
Monday, February 6, 2012
An article by Craig Ball, Esq. on his blog Ball in Your Court.
This article discusses the recent Pippins v. KPMG case. Another article posted on law.com that discusses this same case was also posted on the litigation support technology and news blog earlier today.
Mr. Ball's article applauds the recent court order and states, "KPMG trotted out vague proportionality arguments and went so far as to argue that the plaintiffs themselves–the Audit Associates suing for the overtime–weren’t key players. The court termed the argument “nonsense;” and truly, if the roles were reversed, wouldn’t KPMG argue that plaintiffs are parties, parties are key players and key players must preserve evidence? Sauce! Goose! Gander! Honk!
Pulling no punches, Judge McMahon characterized KPMG’s conduct as “hiding behind the stay of discovery” She wrote, “KPMG has inappropriately used the discovery stay as a shield, relying on it in refusing to produce even a few hard drives so Plaintiffs could examine them. Judge Cott put it perfectly: ‘At this point it is not entirely clear what the hard drives contain, in part because of KPMG’s own efforts to keep that information at bay.’”"