Friday, June 29, 2012

E-discovery: Consider retaining a special master

An article by Matthew Prewitt posted on the website.

This article suggests that special masters can be appointed by parties, at a shared cost.  The author suggests the use of special masters can be especially useful in jurisdictions with no local eDiscovery rules or precedents.

The article states, "The use of e-discovery special masters except for in the largest and most complex cases remains infrequent, principally because of concerns over cost. In this author’s view, the retention of a special master may be cost-effective in any case in which a dispute over the scope or methods of e-discovery could either have at least a six-figure impact on a party’s discovery budget or have a material impact on a party’s ability to obtain key evidence in any case with at least seven figures in controversy."

Be Careful What You Ask For: Two New Cases Seek to Limit Burdensome E-Discovery Requests

An article by Steven Hunter posted on the E-Discovery Bytes website of the law firm Quarles & Brady.

This article discusses two recent cases where objections were levied against eDiscovery requests that opposing counsel claimed to be overly burdensome.

The first case discussed is Lubber, Inc. v. Optari LLC, No. 3:11-0042, 2012 WL 899631, at *1 (M.D. TN March 15, 2012), in which the defendant sought to compel the plaintiff to pay for the costs associated with their eDiscovery requests.  The article quotes the Judge as saying, "When a party has to contemplate whether the last possible bit of information will cost them more than it is worth, they quit asking for items of marginal relevance. As long as requesting the last bit of information costs them nothing, they have little, if any, incentive not to request it. Even if they choose never to look at it, they have put the opposing party to the cost of production. In some cases discovery becomes a tool with which to bludgeon the other side into submission."

The article states that the judge required plaintiff to pay 1/2 of the expenses for the eDiscovery responses, relying on Federal Civil Procedure Rule 26, for data that had yet to be produced, and also required the plaintiff to post a $10,000 bond in the event the defendant prevailed on the merits, and sought costs against the plaintiff.

The second case discussed was Cannata v. Wyndham Worldwide Corporation, 2:10-cv-00068-PMP-VCF, 2012 U.S. Dist. LEXIS 20625 (D. Nev. Feb. 17, 2012), in which the court limited the plaintiff's number of search terms and custodians to 40, and any requests beyond that the plaintiff would have to pay a percentage of the defendant's eDiscovery costs.

The author writes, " While these cases provide ammunition to bring a motion for cost-shifting for parties who are on the receiving end of overbroad document requests, they also place responsibility on corporate counsel to ensure that it narrowly tailors the discovery being served on its behalf. Otherwise, it could be you on the other side of that cost-shifting motion."

Thursday, June 28, 2012

eDiscovery Best Practices: When Litigation Hits, The First 7 to 10 Days is Critical

An article by Doug Austin posted on the eDiscovery Daily Blog.

This article examines recommended best practices for dealing with eDiscovery obligations when litigation initially arises.

The article recommends the following actions, and provides narrative around each of the following items:

  • Create List of Key Employees Most Likely to have Documents Relevant to the Litigation: 
  • Issue Litigation Hold Notice and Track Results: 
  • Interview Key Employees: 
  • Interview Key Department Representatives: 
  • Inventory Sources and Volume of Potentially Relevant Documents: 
  • Plan Data Collection Methodology: 
The article further states, "These activities can result in creating a data map of potentially responsive information and a “probable cost of discovery” spreadsheet (based on initial estimated scope compared to past cases at the same stage) that will help in determining whether to proceed to litigate the case or attempt to settle with the other side."

Wednesday, June 27, 2012

Federal Judicial Center Updates E-Discovery Pocket Guide

An article by Moncia Bay posted on on the LTN webpage.

This article discusses the recently released second edition of the Federal Judicial Center's booklet, Managing Discovery of Electronic Information: A Pocket Guide for Judges, by Barbara Rothstein, Ronald Hedges, and Elizabeth Wiggins.

The new booklet addressed many issues related to eDiscovery, and Ms. Bay's article provides a link to download the booklet, as well as a means to request a paper copy of the information.  In addition, Ms. Bay's article also provides a link to a resource provided by the non-profit E-Discovery Institute, EDI's Judges' Guide to Cost-Effective E-Discovery, by Anne Kershaw and Joseph Howie.

The article discusses the "Pocket Guide" and states that it addressed the following issues:
  • What matters should be discussed at a Federal Rule of Civil Procedures-mandated Rule 26(f) "meet and confer" conference, and what preparation and consultation should be required of the parties, as well as what disclosures are required.
  • What matters should covered during Rule 16 conferences, and included in scheduling orders.
  • How can judges limit the scope of ESI discovery so that it is proportional to the case, including what type of information is not reasonably accessible (and when good cause exists to allow discovery), and how can sanctions be used to promote cooperation and proportionality.
  • Privilege and waiver issues such as inadvertant disclosure, and how to test assertions of privilege.
  • Effective use of Federal Rule of Evidence 502 to reduce cost and delays.
  • Litigation holds.
  • Standards for finding spoliation and criteria for imposing sanctions.
The article states, "In the booklet's conclusion, the authors take to their bully pulpit to preach to their peers: "To facilitate efficient and cost-effective discovery, judges must require attorneys to take seriously their obligation to meet and confer under Rule 26(f) and to submit a meaningful discovery plan that addresses ESI issues likely to arise in the case," they declare. The authors further drill down, arguing that judges must encourage parties to narrowly target requests for ESI; evaluate proportionality; and impose limits on discovery, such as encouraging or ordering tiered or stayed discovery; sampling; or shifting of costs."

The article also quotes eDiscovery experts that provide some praise for the guide.  However, the article also states, "But there were a few dissonant notes: Michael Arkfeld, the principal of Arkfeld & Associates, was disappointed. "The publication was a lost opportunity and a surprise in light of the new technological advancements such as computer assisted review that affect proportionally and citations to a report and a model order that have been criticized by several legal commentators," said Arkfeld, also a member of LTN's board." 

Lawyers Embrace Big Data

An article by Eric Savitz published by Forbes discussing Big Data, and requests for production of electronically stored information.

The article states, "The updated rules (Federal Rules of Civil Procedure) created the concept of eDiscovery, and raised the costs and time required given the need to examine records stored in an unstructured manner on network drives, PCs and PDAs. Today, eDiscovery is standard operating procedure during a trial."

The article also mentions other ways in which "Big Data" can be used to transform the legal profession, such as the ability to track and analyze legal invoices to help create a more cost-efficient legal practice.

The article states, "eDiscovery and legal billing rates only scratch the surface of the potential power “big data” has in the legal industry. Many other sources of data can be analyzed to offer insights and identify trends. Service of process records can help legal professionals identify litigation trends; trademark filings can support intellectual property practitioners’ efforts to gain competitive advantage; and commercial lending activity can help M&A counsel better predict risk.

There are enormous opportunities for big data to transform the legal services business."

Tuesday, June 26, 2012

Far from the Black Box: explaining Equivio Relevance to Lawyers

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

This article examines technology assisted review, and provides some specific information regarding Equivio's "Relevance" offering. The article provides a link to another article authored by Chris Dale, about this same issue.

The article states, "I am developing a deep dislike of the expression “black box” in discussions about predictive coding – it is used unthinkingly by people who are keen to condemn technology developments as instinctively as their forebears condemned mechanised looms and the motor car. Henry Ford famously said “if I had asked people what they wanted, they would have said faster horses”, and the ideal for many law firms is associates and contract lawyers who can turn pages more quickly."

In addition, the article further states references an article by Richard Susskind, entitled, "The End of Lawyers?", a link to that article is included.  Mr. Dale quotes a portion of Mr. Susskind's article, describing the topic of the purpose of the article as follows, "Its primary purpose is to address the fear felt by many lawyers and their clients to the effect that the use of predictive coding technology deprives them of control or, indeed, a role in the decision-making.

The reality is quite the opposite. The tools described above bring transparency and the basis for informed decision-making throughout the process, increasing rather than diminishing the role of the skilled lawyer in making decisions about the scope of discovery. Furthermore, those same tools allow cooperative and collaborative discussion both about what is being done and about the costs and risks of the alternative decisions which might be made."

New NLRB social media report advises specificity

An article by Julie Beck posted on

This article discusses the NLRB and the guidance they have provided for corporations regarding the proper means for regulating the use of social media by employees.

The article states, "Luckily for confused companies, the NLRB released another guidance on social media on May 30, this time with specific examples of acceptable policies.

The NLRB’s main concern is that any restrictions employers put on workers’ social media conduct do not violate their rights under Section 7 of the National Labor Relations Act to engage in protected concerted activity, such as discussing the terms and conditions of their employment with co-workers, even on Facebook."  The article recommends specificity in any policy aimed at regulating social media use.

Monday, June 25, 2012

E-discovery: Using an early conference to prevent later claims

An article by Alvin Lindsay posted on the website.

This article discusses initial conferences in Federal litigation, and the importance they serve for the discovery process.

The article states, "The drafters understood that many of the most significant early e-discovery sanction cases involved problems that occurred at or near the time of trial. As the committee notes to the amendments state: “failure to address preservation issues early in the litigation increases uncertainty and raises a risk of disputes.”

If, on the other hand, a party clearly provides the other side with information such as the names of key players whose data will be preserved, the date ranges of preservation and whether or not backup tapes or legacy systems will be preserved and searched, the onus will shift to the other side to object if they find that deficient. Absent a negotiated solution, parties can then ask the court to resolve the issues before the horse leaves the barn. That’s what the drafters intended."

The author further writes, "The key to these early communications is the unwritten and often unnoticed corollary, that such transparency will go a long way to demonstrate both that the producing party acted reasonably and that the complaining party waived any such claim in the event it attempts to assert (sometimes years later) that something more should have been done. Of course, parties who simply agree that they don’t “anticipate” e-discovery issues don’t have this option.

Thus, even if an initial conference is not required by rule, parties with substantial data troves who spell out early on exactly what is being done on the e-discovery front can greatly reduce cost and risk."

E-Discovery: Price vs. Cost. A Case for Fixed-Fee, Unit-Based Pricing

An article by Marc Zamsky posted on the eDiscovery Roundtable Blogspot.

This article discusses eDiscovery pricing models, and examines a traditional volume based pricing model as opposed to a fixed-fee alternative.

The article states, "...e-discovery cost calculation is, however, not without difficulty. This is due, in large part, to the fact that e-discovery services tend to be purchased in many phases, sometimes from multiple providers, with varying price points for such services, ultimately complicating your ability to determine total cost.

More difficult is “normalizing” that cost—i.e., finding a common measurement between cases to which all costs can be associated—i.e., cost per document reviewed, cost per document produced, cost per gigabyte processed. Notwithstanding, this ability to create a benchmark measurement, giving buyers a barometer with which to measure their service providers and future buying decisions, is critically important to ensuring cost-efficiency and accountability."

The article mentions metrics that can be used to help gauge costs, such as the number of documents reviewed per hour.  Past experience on similar projects can help serve as useful guides.

The article further states, "For purchasers of e-discovery services, using a fixed price per unit methodology for engaging service providers and measuring cost gives you the objective data to help you set the bar. Using data and metrics to determine cost is a powerful tool that exists within the hands of every law firm and corporate legal department today. It should beget a paradigm shift away from nebulous pricing schemes and negotiation purely on price, and engender a ground-swell movement toward cost-based, capped unit price bids that bring certainty, transparency and accountability to the process."

Understanding the Processing Phase of eDiscovery

An article by Kevin L. Nichols posted on the JD Supra website.

This article provides tips for persons that fill various roles in the eDiscovery process, examining the role of the Litigation Support Professional (LSP); the Litigation Paralegal; and the Litigation Attorney.

The article states, "Many companies and law firms are savvy enough to process small volumes of data in-house, however, many matters require using a third-party vendor to facilitate these services. LSP’s are typically responsible for or should be responsible for the following:
  • 1. Recommending a solution to handle the electronic evidence in the case, i.e. selecting to keep the data in-house or to use a third-party vendor;
  • 2. Managing the request for proposal (RFP) process from at least 3 vendors to make a strong recommendation to the legal team of which vendor to use and why;
  • 3. Reviewing and approving the statement of work (SOW);
  • 4. Communicating the technical specifications/requirements to the attorneys in general and specifically the billing partner;
  • 5. Preserving the metadata that existed before processing;
  • 6. Maintaining the defensibility of the reduction of data;
  • 7. Monitoring the production/delivery schedule and exception reporting;
  • 8. Quality control checking (QC’ing) data to make sure that it was properly de-duped, de-nisted, etc.;
  • 9. Determining which data proceeds to the next phase of the litigation cycle; and
  • 10. Reporting results to the litigation team.".  
 The article provides further tips for the other roles discussed.  

Friday, June 22, 2012

Law Firms Not Meeting General Counsels’ eDiscovery Expectations?

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

This article looks at results of a recent survey of General Counsel respondents, referenced in an article by Christopher Spizzirri, a link to that item is provided in Mr. Murphy's post.

The article states, "...75% of General Counsel rank outside counsel not providing adequate support for eDiscovery requirements as a top frustration of the past year. And, 63% of GCs rank the same issue as a top concern for the next year."

The article further states, "...many law firms are creating specific eDiscovery groups to better support clients. I spoke to one such firm a few months back. The firm is committed to alternative fee engagements; understanding budgets and what goes into a matter is critical. As a result, the firm chose to begin using predictive coding. And, the firm manages the whole project internally. This firm built a technology team and a robust staff attorney program and an eDiscovery attorney team. All staff are located in the same city and office. For this firm, the key driver was clients – the clear message from clients was that the cost of document review is too expensive and unpredictable."

eDiscovery Trends: Costs, Outside Counsel and Vendor Performance Chief Among GC Concerns

An article by Doug Austin posted on the eDiscovery Daily Blog.

This article discusses the results of a recent survey taken by the eDiscovery Solutions Group, consisting of surveys provided to 250 General Counsel, with 127 responses from those receiving the survey. The article provides a link to a post by Charles Skamser providing the survey results on the eDisocvery Paradigm Shift website.

Mr. Austin's article states, "

According to the survey, organizations are (not surprisingly) still highly dependent on outside counsel for eDiscovery services, with over half of the organizations (51%) relying on them for eDiscovery collections and Early Case Assessment (ECA) services and 43% relying on them for document review services. Organizations rely on third party forensics groups 35% of the time for eDiscovery collections and rely on Legal Process Outsource (LPO) providers 29% of the time for ECA services and 43% of the time for document review services. Organizations handle ECA internally 20% of the time and handle collection and review 13% of the time each.

The author notes surprise that 51% of the respondents identified outside counsel for their ECA and wondered if there was confusion by respondents about the term “LPO” and whether it applied to litigation service providers. It’s also possible that the term “ECA” might have been confusing as well – to many in the legal profession it means estimating risk (in terms of time and cost to proceed with the case instead of settling) and not analysis of the data."

The article further states, "Top frustrations were “Cost of eDiscovery not declining as rapidly as expected” (95%) and “Increase in the Amount of ESI” (90%). Also notable are the respondents that are frustrated with “Dealing with eDiscovery Software Vendors” (80%) and “Outside Counsel Not Providing Adequate Support for eDiscovery Requirements” (75%)."

P.S. "65% of respondents find eDiscovery Vendor sales people “annoying”."

Thursday, June 21, 2012

Predictive coding. The future

A blog post by Millwright, posted on the site

This post provides a link to an audio interview taken by Chris Dale of the the e-Disclosure Information Project, which consists of an interview of James Moeskops of Millnet.  The post also provides a link to a transcript of the interview.  The interview discusses predictive coding, and the future application of technology assisted review processes in the legal profession.

The transcript quotes Mr. Moeskops as follows, "Essentially predictive coding is, as I have said, a cost and time efficient means by which to perform an initial categorisation of a collection of documents without the need to read all of the documents. Technology that attempts to categorise without the benefit of legal review input such as clustering, for instance, can be helpful within the sort of legal review exercises that are involved in regulatory investigations; however, predictive coding does go a lot further and we believe that predictive
coding can and should be used in any scenario where there are large volumes of documents to review and
categorise and in particular where the categorisation of documents is based on textual content and where
there are tactical advantages or cost advantages associated with identifying particularly relevant or hot
documents as quickly as possible; so the typical sorts of fraud investigations, price fixing investigations
and in fact DOJ and SCC investigations that have occurred and had quite high profile reviews involved in
those exercises; so I think the use of predictive coding certainly fits with the requirements of most
regulatory investigations..."

Cowboys & Lawyers: Spaghetti Western eDiscovery

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

This article looks at the case of Tadayon v. Greyhound Lines, Inc., and discusses the recent opinion of U.S. Magistrate Judge Facciola.

The article quotes part of Judge Facciola's opinion, as follows "

As explained at the discovery status hearing held on April 30, 2012, there is a new sheriff in town—not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation. First, the parties will meet and confer in person in a genuine, good faith effort to plan the rest of discovery. They shall discuss and agree, if they can, on issues such as the format of any additional productions, the timing and staging of all depositions, the submission to each other of discovery reports, and the scope and timing of any Federal Rule of Civil Procedure 30(b)(6) depositions. The parties will then jointly submit their discovery plan for my approval. I commit myself to work with them in resolving any disagreements, whether they arise initially or during discovery. To that end, I will schedule a telephonic status conference every two weeks in which I will ask the parties about their progress (or lack thereof) and try to resolve any disagreements they have.

Tadayon v. Greyhound Lines, Inc., 2012 U.S. Dist. LEXIS 78288, 15-17 (D.D.C. June 6, 2012)."

The article further examines some of the reasons that the plaintiff's sanctions request were denied.  Some of the reasons cited were as follows:  The clawback agreement was not limited; the plaintiff was pro-se hence no attorney expenses were permissible; and the defendant's alleged violations attached to Rule 26 obligations, not a violation of a prior court order.

The article further states, "eDiscovery should not be the gunfight at the O.K. Corral. Parties can reduce motion practice and move their cases forward by cooperating effectively during their Rule 26(f) meetings. I stress multiple meetings, because it is unlikely one conference will settle issues such as collection, search terms and production dates.

Cooperating at a meet and confer does not mean surrender. There are technical issues that must be addressed when discussing electronically stored information. According to Michael Arkfeld, some of these issues include:

  • Understanding Each Party’s IT System
  • Preservation of ESI
  • Agreed upon Computer Terminology (how do you define metadata, forms of production, etc)
  • ESI Types and Storage Media, Devices & Locations
  • Production Protocols 
  • Protecting Privileged ESI."

Tuesday, June 19, 2012

Gartner’s “2012 Magic Quadrant for E-Discovery Software” Provides a Useful Roadmap for Legal Technologists

An article by Dean Gonsowski posted on the e-discovery 2.0 blogsite.

This article provides a link to the recently released Gartner's "Magic Quadrant" for eDiscovery.

The article states, "Gartner has just released its 2012 Magic Quadrant for E-Discovery Software, which is an annual report that analyzes the state of the electronic discovery industry and provides a detailed vendor-by-vendor evaluation. For many, particularly those in IT circles, Gartner is an unwavering north star used to divine software market leaders, in topics ranging from business intelligence platforms to wireless lan infrastructures. When IT professionals are on the cusp of procuring complex software, they look to analysts like Gartner for quantifiable and objective recommendations – as a way to inform and buttress their own internal decision making processes.

But for some in the legal technology field (particularly attorneys), looking to Gartner for software analysis can seem a bit foreign. Legal practitioners are often more comfortable with the “good ole days” when the only navigation aid in the eDiscovery world was provided by the dynamic duo of George Socha and Tom Gelbmanm, who (beyond creating the EDRM) were pioneers of the first eDiscovery rankings survey."

The article further explains, "Beyond the quadrant positions, comprehensive analysis and secular market trends, one of the key underpinnings of the Magic Quadrant is that the ultimate position of a given provider is in many ways an aggregate measurement of overall customer satisfaction. Similar in ways to the net promoter concept (which is a tool to gauge the loyalty of a firm’s customer relationships simply by asking how likely that customer is to recommend a product/service to a colleague), the Gartner MQ can be looked at as the sum total of all customer experiences. As such, this usage/satisfaction feedback is relevant even for parties that aren’t purchasing or deploying electronic discovery software per se."  Footnotes for sources are provided in the article as well.

High Noon in DC: Judge Facciola Lays Down the Law on Discovery Cooperation

An article by Mark Sidoti, posted on the E-Discovery Law Alert website of the law firm Gibbons.

This article examines the case Taydon v. Greyhound Lines, Inc. and provides a link to that opinion.

The article states, "Anyone who thought that the concept of cooperation among counsel in discovery matters under the mandates of the Federal Rule of Civil Procedure 26(g) and The Sedona Conference® “Cooperation Proclamation” was hollow platitudes or aspirational goals, might want to review the latest word on this from one of the pre-eminent ediscovery Judges in the Country, Magistrate Judge John Facciola, of the United States District Court for the District of Columbia. As he is wont to do, Judge Facciola took the opportunity presented by a rather pedestrian discovery dispute among counsel to make clear that the watchword in litigation discovery is cooperation among counsel."

In the opinion Judge Facciola refers to himself as the new sheriff in town, and orders the parties to meet and confer in good faith, and further orders a telephone conference in which he would be involved to help resolve any discovery disputes that the parties cannot resolve.

Monday, June 18, 2012

Prosecutors to appeal in case over e-discovery limits

A report on the Thomson Reuters News & Insight website, reporting credit provided for Jessica Dye.

This article discusses a Federal criminal proceeding taking place in the U.S. District Court for the Eastern District of New York, the case discussed is, U.S. v. Metter et al, in the U.S. District Court for the Eastern District of New York, No 10-600.  The criminal case involved allegations of stock fraud involving a "pump and dump" stock scheme related to the company "Spongetech".

The article states, "U.S. District Judge Dora Irizarry ruled on May 17 that prosecutors could not use any computer files or emails seized from defendant Michael Metter. She made the sanction because prosecutors had let more than 15 months go by without meaningful progress in determining which of those files fell outside the scope of a 2010 search warrant.

It was the first time a judge in the 2nd U.S. Circuit, which includes New York, has addressed the question of whether the government faces any hard-and-fast deadlines for performing privilege reviews on vast amounts of computer data swept up in the course of investigations, according to the ruling."

The article notes there is not set time limit for completion of the review of electronically stored information, although case law has held such reviews need to take place in a "reasonable" amount of time.

The article further states, "Irizarry's ruling may have ripple effects through other criminal investigations, experts said, particularly in white-collar and corporate cases where prosecutors often scoop up computer files wholesale, then turn later to the task of sorting out relevant files.

Reviewing so much information can be a lengthy process, said Christopher Hall, a white-collar defense attorney at Saul Ewing in Philadelphia and a former federal prosecutor. On the other hand, just as the government is forbidden from sweeping up and keeping the entire contents of a defendant's apartment, it is forbidden from keeping copies of emails that have nothing to do with the warrant -- personal information, or anything protected by attorney-client privilege.

"Judge Irizarry has created an outer limit of time in which the government has to act to review for pertinence," Hall said. "It is, in effect, now a common-law requirement that the government review for relevance within a reasonable period of time.""

The article further mentions, "Citing the government's "lack of good faith" and "blatant disregard for its responsibility," Irizarry ordered all evidence seized from the hard drives and email account to be suppressed wholesale -- a strong sanction that could affect the government's case at Metter's upcoming trial."

Jason Baron’s Keynote Speech — “Boldly Going Where Few Judges Have Gone Before: The Emerging Case Law on Software-Assisted Document Review and Our Next 5 Year Mission”

A guest blog post by Jason Baron, and also by Ralph Losey, Esq. posted on the e-Discovery Team® website.

This blog post provides information from Jason Baron's recent Keynote Speech from the "Seventh Circuit Electronic Discovery Workshop on Computer-Assisted Review", held in Chicago.

The article discusses the TREC project, the RAND study of eDiscovery expenses, and the impact that technology is having upon the legal profession.  The article provides information from the Mr. Baron's keynote speech, "My crystal ball is as cloudy as any other preacher on the ediscovery conference circuit, but in the time I have I’d like to sketch out three issues, in the form of questions, concerning the present and future state of e-discovery search that I trust may be of interest at least to some. First, in light of emerging case law, what does cooperation truly mean in an age of software-assisted review and the technical protocols that optimize them? Second, with the recent demise (or at least hiatus) of the TREC Legal Track, is there a need for further research to evaluate search efficacy? And third, are we finally at the point where we should be contemplating voluntary “quality” standards in the e-discovery arena?"

The article examines recent case law that has given some judicial approval to the use of technology assisted review workflow processes such as predictive coding.  The article also looks at some of the scientific research conducted used to substantiate the effectiveness of technology assisted review.

The article further states, "...the RAND report’s bottom line is that software assisted review holds the potential for significant costs savings without compromising quality as compared with more traditional forms of human review.

Again let me be clear: I remain a strong cheerleader and advocate for advanced forms of search and document review. But there are dozens of open questions that remain for further research in this area, and would caution against making judicial short-cuts to findings that say this area is essentially a “solved problem” for lawyers. We ain’t there yet. Some of the kind of questions I have in mind:
  • What kind of cases does software-assisted review methods work best in?
  • What kind of seed set process is optimum — random sampling or some kind of judgmental sampling based on keywords, using hot docs and privileged docs?
  • How good are such software assisted methods in stabilizing subsets of documents by issue tags?
  • How good is the software in dealing with cryptic docs?
  • How good can software-assisted methods be in really honing in on hot documents of the most material nature to a given litigation."
The article also looks at standards used to measure the effectiveness of eDiscovery processes, such as ISO 9001, The Sedona Conference, and the DESI IV Workshop.  Links to information about the referenced organizations are provided.  In addition, a link to another informative article, "Evaluation of Information Retrieval in E-Discovery " co-authored by Jason Baron is provided in the blog post. 

Friday, June 15, 2012

Bill Gates, the Prefect Game and Continuous Evaluation of Your Compliance Program

An article by Thomas Fox posted on the JD Supra website.

This article provides a PDF document which can be downloaded, the document discusses an article entitled "Be Great Now", authored by Jim Collins.  The Jim Collins article provided 12 tips that should be used to achieve greatness, Thomas Fox in his post states these same 12 tips should be used to analyze corporate compliance programs on a regular basis.

The 12 tips referenced are as follows, and the article provides further discussion around each of these 12 points:

1. Do we want to build a great company and are we willing to do what it takes?
2. Do we have the right people on the bus and in the key seats?
3. What are the brutal facts?  
4. What is our hedgehog: What can we be the best at, with an economic engine, and for
which we have unbounded passion?
5. What is our 20-Mile March, and are we hitting it?
6. Where should we place our big bets, based upon empirical validation?

7. What are our core values and core purpose on which  we want to build this
enterprise for 100 years?  
8. What is our 15 to 25 year BHAG?
9. What could kill us, and how do we protect our flanks?
10. What should we stop doing, to increase discipline and focus?
11. How can we increase our return on luck?  
12. Are we becoming a Level 5 leadership team and cultivating a Level 5 management

eDiscovery Case Law: Plaintiff Compelled to Produce Mirror Image of Drives Despite Defendant’s Initial Failure to Request Metadata

An article by Doug Austin posted on the eDiscovery Daily blog.

This article discusses a recent case in which a plaintiff was compelled to produce a mirror image of a hard drive, despite the fact that the defendant's initial discovery request did not request metadata, nor specify the form of production.

The article states, "In Commercial Law Corp., P.C. v. FDIC, No. 10-13275, 2012 U.S. Dist. LEXIS 51437 (E.D. Mich. Apr. 12, 2012), Michigan District Judge Sean F. Cox ruled that a party can be compelled to produce a mirror image of its computer drives using a neutral third-party expert where metadata is relevant and the circumstances dictate it, even though the requesting party initially failed to request that metadata and specify the format of documents in its first discovery request."  A link to the case opinion is provided in the article.

The article further states, "Judge Cox ruled that there was a proper basis for ordering an exact copy of her drives to be created and also agreed that it was appropriate to be performed by a neutral third-party expert, finding:
  • That such an examination would reveal relevant information pursuant to Rule 26 because “[t]he date Plaintiff executed the security lien is clearly relevant to a defense against Plaintiff’s attorney lien claim”;
  • That there were a number of factors that gave the defendant “sufficient cause for concern” as to the authenticity of the lien documents, shooting down the plaintiff’s claim that the court was simply following a “hunch”;
  • That a third-party expert is an appropriate way to execute the examination."
The article further mentioned that it was clear to the court from the pleadings that the defendant became more concerned with the authenticity of plaintiff's evidence during the discovery phase of litigation.  Therefore, the lack of the initial request by defendant for a mirror image of the hard drive was sufficiently justified to the court.

Thursday, June 14, 2012

Hard Drive Encryption and the Fifth Amendment

An article by Richard Raysman and Peter Brown posted on on the LTN Webpage.

This article examines the relationship between the 5th Amendment and encrypted hard drives. If revealing an encrypted password would lead to criminal charges, is there a 5th Amendment right against self-incrimination that provides protection against having to reveal the password?

The article states, "In recent years, the issue of encryption has collided with the Fifth Amendment right against self-incrimination. While the contents of a hard drive are not themselves testimonial, the act of producing an encryption password in response to a subpoena nevertheless may have communicative aspects of its own, wholly aside from the contents of the data produced. See generally Fisher v. United States, 425 U.S. 391 (1976) ("The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced").

Thus, while the government might argue that an encryption password is comparable to a key to a file cabinet, a criminal defendant might counter that a password is more like spoken testimony or a combination to a wall safe, that is, a piece of potentially incriminating information from a person's mind. A number of courts have examined under what circumstances the government may compel a criminal defendant to reveal an encryption password for a laptop computer that has been seized as evidence."

The article examines two different ways the courts have analyzed this issue, to determine if the 5th Amendment is applicable.  The author describes the two legal standards as being "Contents of one's own Mind" and the "Foregone Conclusion" doctrine.

Under the first theory the author explain, "First, the Fifth Amendment privilege is not triggered where the government merely compels some physical act, that is, where the individual is not called upon to make use of the contents of his or her mind. In distinguishing testimonial from non-testimonial acts, the court has often compared revealing the combination to a wall safe to surrendering the key to a strongbox: Revealing the wall safe combination would convey the contents of one's mind while handing over the key does not and is therefore not testimonial. Doe v. United States, 487 U.S. 201, 210, n.9 (1988)."

The author explains the second theory as, "Under the "foregone conclusion" doctrine, an act of production is not testimonial if the government can show with "reasonable particularity" that it already knew of the materials at the time it sought the act of production, thereby making any testimony a "foregone conclusion."

Wednesday, June 13, 2012

How Do You Archive Your Social Media Activity?

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

This article discusses social media network, and provides insight into the complexities involved with archiving the content shared via social media.

The article states, "...each social media provider has a different way of storing postings - the fact that you can no longer see a posting doesn't mean that the provider hasn't stored it. More fundamentally, once posted, you have no idea who may have copied it, forwarded it or stored it for their own reasons. This is why it is best to take the view that whatever you post will live forever - somewhere."

The article also provides a link to a list of social media archive technologies shared by Ron Robinson of Orange Legal Technologies.

Gartner: E-Discovery Magic Quadrant Shows Firms' Growth, Maturity, Consolidation

An article by David Roe posted on the CMS Wire website.

This article discusses trends in the eDiscovery market, and looks at factors used by Gartners when they rank eDiscovery companies in their "Magic Quadrant" diagram. The article also discusses the EDRM (Electronic Discovery Reference Model), and provides information about the EDRM diagram.

The article states, "E-Discovery is growing. If you had any doubt about it, a quick look at this year’s Magic Quadrant for e-Discovery, would indicate just how tight competition is getting in the market with six companies in the Leaders quadrant and another four jostling to bust in from the Challengers Quadrant. But like all IT areas that have a high content element, the market is shifting."

The article further mentions, "

Keeping that in mind, let’s take a look at the criteria needed for inclusion in the Quadrant. To be included, a vendor must:
  • Sell enterprise software licenses, a software appliance or SaaS conforming to Gartner's definition of SaaS
  • Address at least two of three broad functional areas, relating to the EDRM
  • Generate at least US$ 20 million in revenue per year from the sale of e-discovery software
  • Own the intellectual property and copyright to the software
  • Have at least 50 customers in production"

Tuesday, June 12, 2012

Will Computers Soon Replace Your Lawyer?

An article by Timothy P. Harkness and Dana L. Post posted on the Pmf Legal website.

This article looks at the use of computer technology in the legal profession, and discusses the possible impact on the practice of law from the use of such processes as predictive coding.

The article states, "Computers, once thought of as tools for lawyers, are well on their way to replacing much of the work that lawyers do altogether. This profound change took a giant step forward recently when two courts endorsed what is cryptically called “predictive coding” —the use of sophisticated algorithms to enable computer software to determine the relevance of documents.

Predictive coding is not something most lawyers think about much. Many probably have not even heard of it and you likely will not see it featured anytime soon on your favorite law-themed television shows. However, attorneys unwilling or incapable of adapting to the shift towards the use of e-discovery technology may find their jobs in peril."

The article further mentions recent court decisions that have provided some judicial level of encouragement for attorneys to use predictive coding and other forms of technology assisted review.

P.S. Certainly the authors of this blog agree that technology assisted review processes will reduce the number of attorneys needed for document review.  However, the first sentence quoted above is likely overstated in that computers are NOT likely to replace "much of the work lawyers do altogether".  In fact, as the article does point out, there has been a movement toward temporary lawyers, and off-shore legal services, to handle document reviews over the past several years.  Document review is not a primary function of the majority of attorneys.  

eDiscovery Trends: Where Does the Money Go? RAND Provides Some Answers

An article by Doug Austin on the eDiscovery Daily Blog.

This article discusses a recent RAND report regarding eDiscovery spending, and states, "The RAND Corporation, a nonprofit research and analysis institution recently published a new 159 page report related to understanding eDiscovery costs entitled Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery by Nicholas M. Pace and Laura Zakaras that has some interesting findings and recommendations."  A link to download the report is provided in the article.

The article provides some insight into the findings of the report, and provides narrative around each of the following topics:
  • Review Makes Up the Largest Percentage of eDiscovery Production Costs.  
  • Outside Counsel Makes Up the Largest Percentage of eDiscovery Expenditure.  
  • If Conducted in the Traditional Manner, Review Costs Are Difficult to Reduce Significantly.
  • Computer-Categorized Document Review Techniques May Be a Solution.

Monday, June 11, 2012

Apple iOS Presents Forensics Challenges in E-Discovery

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

This article discusses the challenges that electronically stored information located in Apple Computer devices create during the forensic collection process.

The article states, "Data such as contacts, locations, message contents, settings, and time stamps are stored more securely in the iPad 2, the new iPad (unofficially known as iPad 3), and iPhone 4S than in their predecessors. That's good for most users, but problematic for investigators and IT staff whose job is to obtain such information, experts from software companies that exhibited at the Mobile Forensics Conference in Myrtle Beach, S.C., said.

"People are just starting to think critically about how to handle iOS data within e-discovery," said Paul Jordan, co-founder of mobile forensics company BlackBag Technologies. BlackBag, based in San Jose, Calif., is among a group of specialists, including Cellebrite Mobile Synchronization and others, who are working on the iOS challenges. E-discovery companies such as AccessData, Clearwell Systems, Guidance Software, Kroll Ontrack, and Nuix are also in the game, all working to develop, license, or acquire technologies that access the inner sanctum of iOS device data.

Such companies are competing to develop business-class tools based on jailbreaks -- mobile-speak for software that changes the device's operating system to allow full file access. Jailbreaks are legal in the United States, but they're not authorized by Apple."  The article provides a link to information about the referenced mobile forensic conference.

How ‘systems thinking’ is making the cloud transparent

An article by James Urquhart posted on the website.

This article examines "systems thinking" and discusses how it is impacting the use of cloud computing.

The article defines "systems thinking", and states "Defined in Wikipedia as “the process of understanding how things influence one another within a whole,” systems thinking represents a modeling, analysis and design discipline that carefully explores “macro” aspects of highly interdependent systems. Systems thinking is heavily utilized in such fields as the social sciences, organizational dynamics, and industrial engineering to evaluate, model, and/or design how systems are composed and how they behave.

Systems thinking is difficult for those that have been educated to always apply reductionist thinking to problem solving. The idea in systems thinking is not to drill down to a root cause or a fundamental principle, but instead to continuously expand your knowledge about the system as a whole."

The article puts forth certain questions that must be raised in connection with the use of cloud computing systems, "What are the system’s boundaries? When everything is so highly interdependent (economies are linked to governments are linked to societies are linked to individual people, etc), how do you know where to start modeling, and where to stop?"

The article further points out, "Understanding where the boundaries of source code and data models lie is relatively straightforward, but understanding the boundaries of operations — monitoring, compliance, decision making, liability and so on in cloud-based applications — is not so straightforward."

The author further writes, "All of this leads me to what I think is the key conclusion that has to be reached about the future architecture of our shared cloud computing “system”: transparency is essential. Without a steady stream of feedback data from whatever sources we determine — over time — have a significant impact on the operation of our applications, we are doomed to be unable to properly find the right “boundaries” for those applications.

Information about the functioning state of infrastructure (like compute nodes and networks), services (like data stores and platform services) or even other applications (like SaaS or your partners’ applications) will be critical to evolving the automation that successfully enables resiliency."

Knowledge Management and the Simple Stick

An article by Patrick DiDomenico posted on the website.

This article discusses the need for simplicity in order to have an efficient Knowledge Management policy.  The article references a book by  Ken Segall, who worked with Steve Jobs on several Apple ad campaigns, called Insanely Simple: The Obsession That Drives Apple’s Success.  A link to information about the book is provided.

Mr. DiDomenico writes, "Insanely Simple digs into the world of simplicity at Apple under Steve Jobs. It also introduces the concept of the Simple Stick."

The article further states, "Simplicity in KM is important for many reasons, not the least of which is time(or the lack thereof). Busy lawyers have precious little time, and the time they have is best spent on revenue-generating work. Wasting their time with superfluity affects the bottom line. One of the cornerstones of KM is to increase efficiency. Complex design, cluttered ideas, and extra stuff gets in the way and slows us down."

Friday, June 8, 2012

Global E-discovery Market 2010-2014

A press release by Bharat Book Bureau posted on the website.

This press release discusses the recently recently report from TechNavio, providing a forecast for the eDiscovery Market through 2014.  The press release provides a link to the report, which is available for purchase.

The press release does share some insight into the contents of the TechNavio report, and some of the findings in the report.  The press release states, "The report covers the Americas, and the EMEA and APAC regions; it also covers the Global E-discovery market landscape and its growth prospects in the coming years. The report also includes a discussion of the key vendors operating in this market."

In addition, a growth rate for the entire market is anticipated at 14.3 percent (CAGR) during the time period analyzed.  Although cost-cutting pressures in the corporate environment are referenced as a possible obstacle to reaching that projected growth rate.

eDiscovery Case Law: Privilege Waived Because Defendants Failed to Notice “Something Had Gone Awry” with Their Production

An article by Doug Austin posted on the eDiscovery Daily Blog.

This article examines the case of  D’Onofrio v. Borough of Seaside Park, No. 09-6220 (AET), 2012 WL 1949854 (D.N.J. May 30, 2012) in which the defendant's inadvertent production of privileged documents was deemed to be a waiver of privilege. A link to the case opinion is provided in the article.

The article states, "defendant failed to heed warnings that something was “profoundly awry with their document production and privilege review” and discover that privileged information had been produced."

The article goes on to outline the errors made during production that led to the disclosure of approximately 1000 pages of privileged information.

The article further states, "In her decision, Judge Bongiovanni relied on Federal Rules of Evidence 502(b) to rule on the waiver of privilege:

“‘(1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosure; and (5) whether the overriding interests of justice would or would not be served by relieving the party of its error.’”

Although Judge Bongiovanni found that Defendants’ initial efforts to prevent disclosure were reasonable and that “the number and extent of the disclosures” were “neutral factors,” she concluded that Defendants “did not take reasonable steps to remedy their error.”"

Thursday, June 7, 2012


An article by Michelle Sherman, Esq. posted on the Social Media Law Applied.

The article examines the relationship between eDiscovery obligations and social media network content.

The article discusses four topics, and provides insight into the following issues:

1. E-Discovery Rules Apply To Social Media Activity.

2. Update Document Retention Policies to Include Social Media Activity.

3. Identify a Vendor That Can Capture and Store Social Media Activity.

4. Discuss With Legal Counsel Your Social Media Activity When Litigation Is Anticipated, and Remember To Include Social Media In Your Discovery Plan.

The article provides the following advice in conclusion, "Businesses cannot afford to postpone updating their document retention policies, and finding a good solution for storing their social media activity. Courts are ordering sanctions for e-discovery violations, and businesses subject to state and federal regulations are being required to store much of this information as well. If a business anticipates being involved in litigation, make sure your legal counsel is asking about your social media activity, and how the potentially relevant or discoverable data is being maintained. Also, discuss the social media activity of your business and the other party so social media can be incorporated into your litigation strategy."

The State of Social Media eDiscovery Today

An article posted on the Archive Social Blog (no author credit provided).

The article discusses social media, and eDiscovery obligations associated with communications on social media networks.

The article states, "Given the wealth of information on social media, it is no surprise lawyers and judges want to dig into these pages for litigation. But, this raises two important questions: what is discoverable on my social media page, and what does social media eDiscovery mean for my business?"

The article then goes on to examine recent case law that sheds light on what is discoverable, and what impact social media is having upon corporate litigation.

Wednesday, June 6, 2012

Wrapping Your Arms Around e-Discovery

An article by John G. Horn and Michael McCartney posted on the website.

This article examines eDiscovery issues and provides seven potentially cost-savings tips to consider when planning to respond to a request for production of electronically stored information.

The article states, "As anyone who has been involved in litigation within the past 10 years can attest, eDiscovery has the potential of consuming a case in at least two ways. First, depending on the level of civility and collaboration between adversaries and the amount of Electronically Stored Information (“ESI”) the parties possess, the costs of production and related motion practice can dwarf those related to litigation on the merits. Second, allegations of spoliation and who failed to preserve ESI can quickly overshadow all other aspects of the case.
The dimensions and complexity of the challenge grow daily. According to digital consultant International Data Corporation, in 2010, the amount of digital information created in the world exceeded a zettabyte for the first time. A zettabyte is one trillion gigabytes. According to this same source – which has carefully studied data storage, handling and analysis trends since 2007 – the size of the digital universe is doubling every two years and the growth of the digital universe continues to outpace the growth of available storage capacity."

The seven tips that the article discusses are as follows:

1. Carefully consider relying on internal IT departments to collect and preserve ESI
2. Take affirmative steps to avoid under-collection
3. Make sure IT/Legal education is a two-way street
4. Technology is your friend – really
5. Involve your specialists early on in litigation
6. Formulate, implement and enforce comprehensive document destruction/preservation policies
7. Insist on production of ESI in its native format

Tuesday, June 5, 2012

Investing to avoid the mere imputation of sanctionable eDiscovery conduct

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

This article refers to another article by Jim Shook, Director in EMC’s eDiscovery and Compliance Field Practice, published on the Kazeon blog called Activating Your Information Management Shield.  Links to the referenced blog and article are provided in Mr. Dale's blog post.

Mr. Shook's article examined two cases as examples that illustrate what conduct will result in spoliation sanctions.

Mr. Dale writes, "The main takeaway from Jim Shook’s article, for me anyway, comes at the end, and applies even outside the rigourous (is that a nice neutral word for it?) context of US litigation. Jim puts it this way:

We all know that litigation holds are difficult to implement and are almost never perfect. Sometimes something bad actually does occur – a custodian is inadvertently omitted, a handful of emails are lost. But more often, nothing bad happens at all. Still, even in those cases it can be difficult (and time-consuming and expensive) to fight off the other side’s claim that something “must have been lost.” A good information management policy, with tools and education to enable it, can go a long way towards showing good faith and protecting your organization from harm.

The risk management exercise, in other words, involves more than just the prospect of actually being punished for eDiscovery defects, whether that involves US-style sanctions or an indemnity costs order as one might get in the UK. What does it cost to resist the imputation, and what wider implications might ensue?"

Mr. Dale goes on to look at issues that result in harm to a corporation that goes beyond simple metrics such as costs incurred.  Certainly there can be harm to a corporate image that can go well beyond the costs of sanctions, and the costs of the effort involved in complying with legal obligations.  It becomes more difficult to measure the true costs of not having proper legal hold and information governance practices in place, than to simply focus on the impact of court imposed sanctions.  However, issues such as the good will value of the corporation's name need to be considered as part of the overall damage that can be caused by failing to properly manage information.

“State of Compliance: 2012” Study Provides a Lens into the Changing Practice of Compliance Risk Management

An article by Suzanne Dawson and Matt Kelly posted on the website.

This article discusses the Compliance Week Conference held in Washington D.C., and the survey results from the State of Compliance 2012 Survey.  The article also provides links to more information, and a link to survey questions that you can answer.

The article states, "According to initial results of the report, the compliance department is involved to some degree in evaluating or overseeing virtually every risk or regulatory issue, including anti-trust, anti-corruption, ethics, import-export, supply chain, social media, and codes of conduct. PwC and Compliance Week found, however, that several challenges remain before compliance officers can move toward a fully integrated, proactive function. These challenges include fragmented IT systems, tight budgets, shifting and growing regulatory requirements, and the ongoing challenge of proving that the compliance program is effective.

“Few elements of corporate compliance are as elusive as the art of confirming that your ethics and compliance program is effective. Compliance officers today know that just tracking calls to the hotline isn’t enough. The question is what is enough,” said Bobby Kipp, partner in PwC’s Assurance practice. “Compliance officers really need overall assurance that their program is effective. Getting that assurance requires a combination of multiple metrics and insights.”

According to the Study, compliance officers still have much work ahead of them to harness existing IT systems and to build new ones that will provide a more holistic view of risk and compliance."

The article further states, "Other preliminary key findings from PwC and Compliance Week include:

  • Most companies now have a compliance committee (71 percent, up from 57 percent last year)
  • While 78 percent of respondents anticipate increased board and audit committee demands for evidence of effective compliance; only 35 percent are currently “very satisfied” with the assessment of the effectiveness of their compliance programs
  • Budgets are moving in positive directions – 21 percent of respondents are reporting budgets of $3 million to $10 million (up from 14 percent in 2011)
  • Staffing levels are increasing – nearly 80 percent of respondents said their compliance departments grew at least modestly in the last year
  • Reporting relationships are moving in the right direction – more compliance officers (32 percent) formally report to the board; however, reporting to the general counsel (GC) is also still quite prevalent (33 percent of respondents report formally to the GC)"

Monday, June 4, 2012

Eaton Executives' Affidavits Focus on E-discovery Problems

An article by Sue Reisinger posted on on the Corporate Counsel webpage.

This article discusses a specific litigation, and refers to a recently filed affidavit that outlines eDiscovery difficulties that were experienced by one of the corporate parties.

The article states, "In the end, two top litigation counsel at Eaton Corporation were ushered out of their jobs not because of a botched lawsuit the company lost against a rival firm and six ex-engineers, but because the two lawyers screwed up the production of emails for discovery.
At least that’s the story now coming out in affidavits filed in response to a court order demanding how and why the emails weren’t produced years ago in the long-running suit."  A link to further information about the suit is provided in the article.

The article mentions allegations of attempts by Eaton to hire a "secret" lawyer, who attempted to influence the Judge.  The article also states that apparently emails exist that indicate knowledge of misconduct on the part of Eaton's in-house counsel.  The author writes, "The newly found emails relate to that time and that issue. The defendants allege that the emails show general counsel Mark McGuire, who was part of the online discussion, and other Eaton lawyers were well aware of the attempts to influence the judge at the time.
McGuire had testified otherwise in 2008, saying he didn’t recall seeing any such emails. The company has declined to discuss details of the suit, including the email controversy.

Whether the new emails were inadvertently overlooked or deliberately withheld will now be a question for the court, which already sanctioned Eaton $1.5 million for the original misconduct."

There are further allegations that Eaton may have deliberately failed to search their email system, as an I.T.  employee of Eaton claims he was instructed to avoid searching the email system.  The I.T. employee further alleges that he reported the instruction he received to his supervisor, in that he felt the instruction to avoid searching the email system was improper.  This fact is in dispute as outside counsel for Eaton alleges that the method used to search the emails failed and there was no deliberate instruction to avoid searching the email.

P.S.  This case can be added to the growing list of cases in which "smoking gun" evidence exists in the form of emails.  An argument can certainly be made to add this case to any top 10 list of dumbest emails of all time.

Eaton Executives' Affidavits Focus on E-discovery Problems

An article by

E-Discovery Gamers: Join Me In Stopping Them

An article by Ralph Losey, Esq. posted on the e-Discovery Team® Blog.

This article discusses litigation involving eDiscovery requests for production of electronically stored information, and offers warnings for counsel and client against attempts to abuse the discovery process.

The article states that some attorneys view litigation as a game, to be won at all costs, and that those attorneys are willing to manipulate the eDiscovery process by trying to play "hide the ball.".  The article states, "Non-gamers ask for and look at documents to try to find out what really happened. But not gamers. They view facts as malleable. E-discovery for them is just a way to find enough documents to construct a story. They only care about whether a story will likely persuade a judge or jury to rule in their client’s favor. Not whether it is true.

Gamers view requests for discovery as potentially dangerous to their constructs. For that reason, they will play endless, elaborate games to try to hide the facts. For them hide-the-ball is just a game, one that might have economic consequences if they are caught, but they rarely are."

The article examines some of the pitfalls associated with the litigation process as a whole.  The author states, "When a gamer does sometimes realize that the other side is hamstrung by rules, and is not a gamer like them, they tend to think that they are up against a naive patsy and play even harder. Nothing gets them off their game.

They are delighted when their adversary is a moralist. They are more than happy to take advantage of that. A true gamer does not care about rules of any kind. Rules are meant to be broken, if you can gert away with it."

The article goes on to discuss game theory in general, and how it applies to litigation.  The article further states, "The role of game theory in e-discovery was considered in an article by Maura Grossman and Gordon Cormack, Some Thoughts On Incentives, Rules, and Ethics Concerning the Use of Search Technology in E-Discovery (Vol. 12, Sedona Conference Journal, 89-104) (2011) (hereinafter “Some Thoughts“). This article has been a sleeper, but well worth reading for the game theory discussion alone, although this is just one part of their interesting article on ethics and search."  Mr. Losey then goes on to further discuss the referenced article, and also states that ethics and good faith are essential for a proper litigation strategy.

Mr. Losey examines what the article explains is the "Prisoner's Dilemna", as discussed in the context of the article he cites.  Ultimately, Mr. Losey concludes, "Lawyers who ignore these values and employ game tactics are doomed to fail. If their opposition is also a gamer, then both will both lie and cheat each other. The clients on both sides will lose. If their opposition is not a gamer, they will also lose as soon as the judge who controls the proceeding catches on to their gamesmanship. Once they are exposed, they are done. You can easily stop unethical gamers by exposing them."

Saturday, June 2, 2012

10 Bonehead Mistakes That Can Kill an EDD Search

An Article by Craig Ball on

This article discusses how lawyers are woefully unprepared for the difficulty of search in electronic data discovery and how Search fails in two, non-exclusive ways: The first being the query will not retrieve the information you seek, and the second being the query will retrieve information you didn't seek .Keyword search followed by human review is standard operating procedure in EDD today— in part because linear search is mistakenly considered the safest course.

The problem is Linear search is time-consuming, expensive and doesn't work well. People make search and assessment errors, and making lots of searches and assessments, they make lots of errors. Mistakes can be subtle and hyper-technical, but most are not. Below is a list provided by the author of the 10 boneheaded mistakes that can kill a search.

1. Searching for someone's name or email address — In his or her own email.

2. Assuming the tool can run the search.

3. Not testing searches.

4.Not looking at the data.

5.Igonoring exceptions list.

6. Assuming that deduplication solves the problem.

7. Reviewing 50 custodians when 5 will do.

8. Failing to search for common name variations.

9.Neglecting to run search terms against file and folder names.

10.Failing to rapidly react to the problems you encounter.

Friday, June 1, 2012

Can You Recover Costs for E-Discovery Services as an Expense of Litigation

An article by Michael Palumbo posted on the website of the law firm Jennings Strouss.

The article discusses whether eDiscovery costs are recoverable as a taxation against the losing party in litigation.

The article provides commentary on several cases that examine the issue of cost recovery of eDiscovery expenses.

The article states in conclusion, "In conclusion, the take away point, at least for cases that are litigated under the Arizona cost recovery statute, is that without an agreement that the prevailing party will be entitled to recover the costs of services provided by e-discovery consultants, expenses for such services are not likely to be recoverable. Similarly, for cases litigated under federal rules and statutes, an agreement pursuant to Rule 26, Federal Rules of Civil Procedure, will be necessary to recover for the services of e-discovery consultants."