Monday, July 30, 2012

200,000 Hits

The Litigation Support and Technology News Blog has reached over 200,000 page views since last year. Thank you for reading and thank you for your comments.

Monday, July 23, 2012

Days Five and Six of a Predictive Coding Narrative: Deep into the weeds and a computer mind-meld moment

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

The article is part 4 in a series that examines a predictive coding test project that the author initiated as a training session, which analyzed data from 699,082 emails and attachments from the Enron litigation.  The goal of the project was to locate evidence related to one specific issue, involuntary employee terminations. The article also cites the former portions of this series, "The first day of search is described in Day One of a Predictive Coding Narrative: Searching for Relevance in the Ashes of Enron. The second day is described in Day Two of a Predictive Coding Narrative: More Than A Random Stroll Down Memory Lane. The third and fourth days are described in Days Three and Four of a Predictive Coding Narrative: Where I find that the computer is free to disagree."  Links to each earlier article are provided by the author. 

The article provides tips on how to choose a responsible service provider, and also looks at specific steps taken during the test project that the article is based upon.  The article provides comments from predictive coding expert Joe White, and looks at some of the suggestions he provided to Mr. Losey regarding the test review, as it unfolded.  Mr. Losey provides specific information about each step he followed in the test process, and the continued iterations that took place as the computer continued to learn from the designations assigned to documents that were actually reviewed and tagged by the author. The article provides interesting insight into the abilities of the software involved in the predictive coding process, and the abilities available to enhance the accuracy of the ongoing review.

Friday, July 20, 2012

eDiscovery Case Law: Judge Scheindlin Says “No” to Self-Collection, “Yes” to Predictive Coding

An article by Doug Austin posted on the eDiscovery Daily blog. The article discusses an opinion by Judge Shira Scheindlin, and an article by eDiscovery expert Ralph Losey, Esq. Mr. Austin provides a link to the article by Ralph Losey, which appeared on Law Technology News, and is entitled "Judge Scheindlin Issues Strong Opinion on Custodian Self-Collection".

The article states, "Regarding the defendant’s question as to “why custodians could not be trusted to run effective searches of their own files, a skill that most office workers employ on a daily basis” (i.e., self-collect), Judge Scheindlin responded as follows:

“There are two answers to defendants' question. First, custodians cannot 'be trusted to run effective searches,' without providing a detailed description of those searches, because FOIA places a burden on defendants to establish that they have conducted adequate searches; FOIA permits agencies to do so by submitting affidavits that 'contain reasonable specificity of detail rather than merely conclusory statements."

The article further states, "...“The second answer to defendants' question has emerged from scholarship and caselaw only in recent years: most custodians cannot be 'trusted' to run effective searches because designing legally sufficient electronic searches in the discovery or FOIA contexts is not part of their daily responsibilities. Searching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context.”

“Simple keyword searching is often not enough: 'Even in the simplest case requiring a search of on-line e-mail, there is no guarantee that using keywords will always prove sufficient.' There is increasingly strong evidence that '[k]eyword search[ing] is not nearly as effective at identifying relevant information as many lawyers would like to believe.' As Judge Andrew Peck -- one of this Court's experts in e-discovery -- recently put it: 'In too many cases, however, the way lawyers choose keywords is the equivalent of the child's game of 'Go Fish' ... keyword searches usually are not very effective.'”"

The article provides further comments regarding the use of technology such as predictive coding, and mentions how they can be used to increase the effectiveness of locating relevant information.

Panel Debunks Predictive Coding Myths

An article by Monica Bay posted on on the LTN webpage.  The article examines comments made during sessions of the Virtual Corporate Counsel Forum, from the panel discussion entitled "Debunking the Myths about Predictive Coding".  The comments discussed by Ms. Bay are attributed to David Kessler, Esq. of Fulbright & Jaworski, and Howard Sklar, Esq. of Recommind.

The article states, "The two lawyers explained some of the basic concepts of technology-assisted review, such as how sampling is used to determine baseline responsiveness, and how prioritized review results in responsive review batches. "Sampling is used to determine baseline responsiveness," said Sklar." At the beginning of the process, you are trying to get a key set of relevant documents. Then, you can 'interrogate' those documents with sophisticated technology" to establish which documents are most appropriate.

Once you have found those documents, then "you can train the system on relevant documents, so you can find 'more like this,'" Sklar said. The process takes "interaction between the computer and human feedback to define the relevant terms."

The article also provides a link to a PDF version of the powperpoint presentation covered by the panelists.

The article also discusses the four steps of predictive coding: 

Step 1: Using predictive analytics to create review sets, with human review.

Step 2: System training on relevant documents (computer suggestions).

Step 3: Human review of computer suggestions: "adaptive identification cycles" (train, suggest, review).

Step 4: Statistical quality control validation.

In addition, seven myths about predictive coding were also discussed, including: 
  1. Predictive coding is automated coding 
  2. Defensibility depends primarily on the technology
  3. Predictive coding is inherently risky
  4. Culling documents using predictive coding is risky
  5. Technology is replacing judgment
  6. 99% is reasonable and 95% is not
  7. Transparency is the answer

Thursday, July 19, 2012

Predictive Analytics and Big Data with Higher Costs to Boot

An article by Stephen E. Arnold posted on the website.

This article discusses "predictive analytics", and "big data".  The article examines future technologies that will be designed to apply predictive analytics techniques toward big data.

The article discusses an article by Kroll Ontrack, which discusses the combination of predictive analytics and big data.  The referenced article, "Predictive Coding Helps Tackle Big Data”, explains that as big data becomes more widespread it will make the eDiscovery process more expensive. A link to the referenced article is provided in Mr. Arnold's article.

"Predictive coding could make big data more cost-effective just as it makes attorney fees lower:

“However, having a mushrooming quantity of data means that when an e-disclosure request is issued, it takes even longer to trawl through information, identify relevant documents and compare duplicates. With the increasing time it takes, legal costs can skyrocket, a worrying trend for businesses in the current climate where margins are already stretched thin. For this reason the introduction of predictive coding in likely to be popular as it leaves the legwork to a sophisticated algorithm, finding relevant documents which can then be reviewed more closely.”"

Wednesday, July 18, 2012

ARMA International Maturity Model for Information Governance

A link provided above is to the 2012 ARMA Generally Accepted Recordkeeping Practices (GARP) which is available on the website.  A PDF version of the Maturity Model is provided as well at the website mentioned above.

The Maturity Model is discussed on the ARMA website as follows, "The GARP principles identify the critical hallmarks of information governance, which Gartner describes as an accountability framework that "includes the processes, roles, standards, and metrics that ensure the effective and efficient use of information in enabling an organization to achieve its goals." As such, they apply to all sizes of organizations, in all types of industries, and in both the private and public sectors. Multi-national organizations can also use GARP® to establish consistent practices across a variety of business units."

The Maturity Model addresses the following various levels of recordkeeping practices:
  • Level 1 (Sub-standard): This level describes an environment where recordkeeping concerns are either not addressed at all, or are addressed in a very ad hoc manner. Organizations that identify primarily with these descriptions should be concerned that their programs will not meet legal or regulatory scrutiny.
  • Level 2 (In Development): This level describes an environment where there is a developing recognition that recordkeeping has an impact on the organization, and that the organization may benefit from a more defined information governance program. However, in Level 2, the organization is still vulnerable to legal or regulatory scrutiny since practices are ill-defined and still largely ad hoc in nature.
  • Level 3 (Essential): This level describes the essential or minimum requirements that must be addressed in order to meet the organization's legal and regulatory requirements. Level 3 is characterized by defined policies and procedures, and more specific decisions taken to improve recordkeeping. However, organizations that identify primarily with Level 3 descriptions may still be missing significant opportunities for streamlining business and controlling costs.
  • Level 4 (Proactive): This level describes an organization that is initiating information governance program improvements throughout its business operations. Information governance issues and considerations are integrated into business decisions on a routine basis, and the organization easily meets its legal and regulatory requirements. Organizations that identify primarily with these descriptions should begin to consider the business benefits of information availability in transforming their organizations globally.
  • Level 5 (Transformational): This level describes an organization that has integrated information governance into its overall corporate infrastructure and business processes to such an extent that compliance with the program requirements is routine. These organizations have recognized that effective information governance plays a critical role in cost containment, competitive advantage, and client service.

eDiscovery Professionals: Order-taking or Consulting? – Introduction

An article by Jane Gennarelli posted on the eDiscovery Daily blog.

This blog posts indicates that it will be series of articles regarding eDiscovery professionals.  The article will examine eDiscovery professionals that provide consultative services, and also discuss the fact that some eDiscovery professionals are "order takers" instead of consultants.

The article states, "In the best environments, I see litigators turning to the electronic discovery professionals in their firms for advice and guidance in handling discovery. Unfortunately, however, I too often see talented electronic discovery professionals – who have a wealth of knowledge and significant expertise – functioning as “order-takers”. And all too often, this means that electronic discovery work isn’t done as cost effectively as it could be, and the work product suffers."

The article further explains that future blog posts on this topic will discuss the following:
  • Order taking: why it happens and what problems and issues arise?
  • How do you make the shift from order-taking to consulting?
  • What are the characteristics of a good consultant?
  • Some handy consulting tips
  • What are the consulting opportunities in a typical case?

Tuesday, July 17, 2012

Safe Harbor not safe enough for EU cloud data

An article by Brian Proffitt posted on the website.

This article discusses a recent recommendation from an independent European advisory committee, proposing some changes to the US/EU "Safe Harbor" data protection agreement. The advisory comments address issues that would impact the use of US based cloud computing providers.

The article states, "While this WP 196 recommendation from the Article 29 Working Party is not legally binding, the group carries enough weight in Europe's IT circles to heavily influence decisions on where and how cloud-based data is stored. The group is made up of members from the national data protection authorities from all 27 European Union Member States… essentially the "justice league" of data security in Europe, without the tights." A link to the recommendation is provided in the article.

The article further explains, "..."The Working Party considers that companies exporting data should not merely rely on the statement of the data importer claiming that he has a Safe Harbor certification. On the contrary, the company exporting data should obtain evidence that the Safe Harbor self-certifications exists and request evidence demonstrating that their principles are complied with."

If this recommendation from the Working Party is heeded, it could represent a significant barrier in the adoption of cloud computing in Europe and the US. Most cloud providers are based in the US, and if the Safe Harbor self-certifications aren't changed, a lot of EU companies are going to shy away hosting their data on such services.

This could be the start of a geographically-based cloud war, unless the Safe Harbor procedures are changed to something more to the EU's liking."

Monday, July 16, 2012

FOIA Matters! — 2012 Information Governance Survey Results for the Government Sector

An article by Allison Walton posted on the website e-Discovery 2.0

The article discusses a survey taken at the recent EDGE summit which was held in April. The survey posed specific questions about information governance.

The article states, "The main purpose of the EDGE survey was to gather attendees’ thoughts on what information governance means for their agencies, discern what actions were being taken to address Big Data challenges, and assess how far along agencies were in their information governance implementations pursuant to the recent Presidential Mandate.

As my colleague Matt Nelson’s blog recounts from the LegalTech conference earlier this year, information governance and predictive coding were among the hottest topics at the LTNY 2012 show and in the industry generally. The EDGE Summit correspondingly held sessions on those two topics, as well as delved deeper into questions that are unique to the government."

The article discusses Freedom of Information Act requests, as well as litigation and investigations, as factors that are causing government agencies to seek out new technologies.

The article further states, "Fortunately, any comprehensive information governance plan will axiomatically address FOIA requests since the technology implemented to accomplish information governance inherently allows for the storage, identification, collection, review and production of data regardless of the specific purpose. The use of information governance technology will not have the same workflow or process for FOIA that an internal investigation would require, for example, but the tools required are the same."  Links providing further information are provided in the article.

New York judge breaks ground by ordering Twitter to surrender broad user data to prosecutors

An article by Robert Hilson posted on the website.

This article examines a case where Twitter has been ordered to turn over user data to New York State prosecutors, in conjunction with an investigation regarding the Occupy Wall Street protest.

The article states, "On June 30, New York state Judge Matthew A. Sciarrino ruled that Twitter, Inc. must produce to local prosecutors the tweets and user information of Malcolm Harris, one of the protestors, who is facing disorderly conduct charges. Twitter had moved to quash a prior order by the judge that denied Harris’ ability to challenge the subpoena.

Judge Sciarrino said local prosecutors could subpoena the information instead of seeking a search warrant because tweets constitute a public communication.

“If you post a Tweet, just like if you scream it out the window, there is no expectation of privacy,” the judge wrote in an 11-page order. “There is no proprietary interest in your tweets, which you have now gifted to the world.”"

Friday, July 13, 2012

2012 A-List Survey

In some ways, The American Lawyer's A-List is like a decathlon for law firms, a contest that tests their strengths in a variety of exacting ways, although we've yet to ask firms to clear a high jump. The factors that go into the tenth edition of this annual ranking—revenue per lawyer, pro bono, associate satisfaction, and diversity—aim to identify firms that represent the legal industry's all-around best. Financial strength is important, but we also want to applaud firms that are committed to serving the less fortunate, and to creating a diverse and healthy work environment.

1. Hughes Hubbatd & Reed
2. Paul Hastings
3. Munger, Tolles & Olsen
4. Gibson, Dunn & Crutcher
5. Millbank, Tweed, Hadley & McCloy
6. Davis Polk
7. O'Melveny & Myers
8. Debevoise & Plimpton
9. Weil, Gotshal & Manges
10 Latham & Watkins.

Wednesday, July 11, 2012

D.C. Bar Calls Out E-Discovery Vendors in the District

An article by Sean Doherty posted on in the law technology news section.

The article discuses a Washington D.C. Bar Ethics Committee opinion (Opinion 362) which restricts eDiscovery services providers and prohibits them from activities that are determined to be the "practice of law".  A link to the opinion is provided in the article.

The article states, "The ethics committee did not define the activities of e-discovery vendors that constitute the practice of law, but the Committee on the Unauthorized Practice of Law recently issued a detailed opinion (21-12, Jan. 12, 2012) on the matter, explaining what activities conducted by e-discovery vendors constitute the practice of law in the context of the unauthorized practice of law, prohibited by D.C. Bar Rule 49."  Links to the referenced opinions are provided in the article.

The article further states, "The ethics committee fashioned three governing principles:

1. E-discovery vendors must be located in the District or advertise that they will service a discovery project in the District.

2. E-discovery vendors that provide lawyers for document review in the District must comply with Rule 49 and the committee's Opinion 6-99...

3. E-discovery vendors that are not otherwise authorized to practice law in the District of Columbia may not provide legal advice to their clients and may not hold themselves out, or any attorneys on their staff, as authorized to practice law in the District if indeed they are not.

Narrative discussion around each principle is provided in the article, and a link to the referenced Opinion 6-99 is also provided.  The specific limitations are outlined, including provisions that require attorneys with an existing attorney-client relationship to be involved in certain portions of services that might be provided by an eDiscovery services company.

Top Five eDiscovery Technologies to Watch in 2012

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

The article examines 5 specific technological solutions that the author feels are the most impressive new solutions that he reviewed in the past year.  The author states that he reviewed over 100 technological solutions, and decided to discuss the 5 offerings that he addresses.

The article states, "With over 100 technologies to choose from, culling the list down was not an easy task. Therefore, I had to rely upon some amount objective criteria such as platform technology stack and supported environments along with a heavy dose of my subjective opinion in regards to how disruptive a technology could be within the paradigm shift of the eDiscovery market. BeyondRecognition, X1 Social Discovery, X1 Rapid Discovery, TunnelVision and Equivio Zoom definitely met these criteria."

The article provides specifics about the technologies referenced, and examines what role each of these solutions is designed to provide.


Tuesday, July 10, 2012

IT-Lex and The Sedona Conference® Provide Real Help to Learn eDiscovery and Technology Law

An article by Christy Burke posted on the website.

This article discusses the need for education within the legal profession regarding eDiscovery and the use of technology.  The article mentions IT-Lex, and the Sedona Conference® as organizations that provide resources to educate legal professional regarding matters related to technology.

The article states, "

IT-Lex is a not-for-profit recently founded by lawyers Adam Losey, Ralph Losey, and Samir Mathur. The entity is quite new and aims to bring new blood into the eDiscovery and technology law arena, linking up “technology law scholars, educators, seasoned practitioners, young lawyers, law students, paralegals, technologists, and anyone else with an interest in this constantly-evolving area of law,” according to its website.

Law students are the attorneys of tomorrow, of course, and today’s go-getter law students are hungry for eDiscovery education – or if they’re not, they should be if they want to be successful lawyers one day. Christopher Danzig of Above the Law posted on June 4th: “E-Discovery in Law School: Yes, You Need to Learn This Stuff”. Adam Losey from IT-Lex agrees with this 100%."  A link to the referenced article by Christopher Danzig is provided in the article.

The article further lists many of the upcoming training initiatives that are available from the Sedona Conference®.

Monday, July 9, 2012

Expanding TAR to become Predictive Discovery

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

This article examines technology, and discusses methods that can be utilized to expand the practice of "predictive coding" to assist with the eDiscovery process as a whole.  The article discusses the use of techniques that can be used over a series of matters for the same corporate data, thus reducing the overall cost burden associated with eDiscovery, and the attorney review process.  The article discusses specific data analytics that can be applied in means that aren't just limited to the attorney review phase of litigation.  Although it mentions that eDiscovery technologies, which provide data visualization capabilities such as clustering, in conjunction with machine learning and data analytics, have yet to see widespread adoption by corporate law departments.

The article states, "Customers seem more comfortable using this integration of technology and workflow to better organize, cull and analyze collections to maximize review quality and efficiency. This matches what we have seen with our corporate and law firm consulting clients. The extension of analytics beyond the pure relevance review is an encouraging sign of our slowly maturing market. eDiscovery pushes innovation in high risk/cost matters because the stake justify the budget. These innovations then migrate to other markets like information governance, retention management and big data business intelligence."

eDiscovery Best Practices: You May Need to Collect from Custodians Who Aren’t There

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

This article discusses suggested best practices for eDiscovery, focusing on the early phases of litigation, providing tips regarding questions to pose to custodians.

The article states, "When interviewing key employees, one of the typical questions to ask is “Do you know of any other employees that may have responsive data to this litigation?” The first several interviews with employees often identify other employees that need to be interviewed, so the interview list will often grow to locate potentially responsive electronically stored information (ESI). It’s important to broaden that question to include employees that are no longer with the organization to identify any that also may have had responsive data and try to gather as much information about each departed employee as possible, including the department in which they worked, who their immediate supervisor was and how long they worked at the company. Often, this information may need to be gathered from Human Resources."

In addition, the article provides further tips about preserving data at the outset of litigation, making the following recommendations:

  • Saving the employee’s hard drive, either by keeping the drive itself or by backing it up to some other media before wiping it for re-use;
  • Keeping any data in their network store (i.e., folder on the network dedicated to the employee’s files) by backing up that folder or even (in some cases) simply leaving it there for access if needed;
  • Storage and/or archival of eMail from the eMail system;
  • Retention of any portable media in the employee’s possession (including DVDs, portable hard drives, PDAs, cell phones, etc.).

Lack of eDiscovery Standards Prompts Creation of New Committee

An article by Allie Philpin posted on the blog.

This article discusses a new effort to form standard best practices for eDiscovery, and to create a certification for eDiscovery services providers.

The article states, "In order to create a set of eDiscovery standards that are defensible and suitable for litigation processes and audits during electronic data discovery, experts are in the process of creating a new committee to handle the creation of new standards and address the current large ‘hole’ in eDiscovery methods."

The article further states, "Jason Baron, Director of Litigation at the National Archives and Records Administration is leading the as yet to be formed committee, has said that their work will be based around ISO 9001. He added, “My vision is to have the workgroup accomplish two principal things: first, to raise consciousness on the subject of what constitutes ISO 9001 best practices as applied in the eDiscovery space, and second, to build out a specific eDiscovery Code of Practice standard that could be subject to auditing under an ISO 9001 rubric.” Ideally, he would like this practice to be acknowledged by the judiciary, which would potentially narrow any ancillary disputes over what is deemed best practice."

Friday, July 6, 2012

Survey Shows Surge in E-Discovery Work at Law Firms and Corporations

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

This article discusses the results of the recently released survey taken by the Cowen Group.

The article states, "

Writes managing partner David Cowen, in the executive summary: "2012 has been a year of progress and promise for e-discovery professionals." The survey, of 88 law firm and corporate law department professionals, found that 70 percent of law firms reported an increase in workload for their litigation support and e-discovery departments. That figure, says Cowen, is a sharp rise from the 2Q 2009 report, where only 42 percent of firms reported increases. Corporate law departments followed suit, with 77 percent of respondents also reporting workload spikes.

Bolstering the prediction, 55 percent of corporate and 62 percent of firm respondents said they "anticipate outsourcing a significant amount of e-discovery to third-party providers (with some organizations expected to do both)."" A link to further information about the Cowen group

The article further mentions that 50 percent of firms indicate they intend to spend more on technology in the next 3 months, which was up from only 31 percent in 2010.

The article also provides comments about the findings in the survey by top eDiscovery experts: George Socha; Matthew Blake; David Kearney; and Ralph Losey.  Many of the comments mention that outsourcing of eDiscovery services is likely to continue, for a myriad of reasons.

Mr. Losey's comments are provided as follows, ""I'm not at all surprised by the outsourcing prediction, and we are not talking here about outsourcing jobs overseas," said Ralph Losey, a partner at Jackson Lewis, based in Orlando, Fla. "We are talking about outsourcing to U.S. vendors the non-legal e-discovery work that law firms, or corporations, had been trying to do themselves. That is a smart move as these functions get more and more complex and expensive.""

Tuesday, July 3, 2012

eDiscovery in America – A Legend in the Making

An article by Christy Burke posted on the Legal IT Professionals website, including contributions from Barry Murphy of the eDJ Group. The article focuses on the upcoming July 4th celebration, and traces the history of eDiscovery in the United States. The article also discusses current eDiscovery trends, and makes predictions about the future impact that electronically stored information will have upon the legal profession.

The article states, "Like periods of America’s own history, eDiscovery started out as a Wild West frontier with little governance and lots of pioneers and cowboys staking out new territory. Barry recalls that eDiscovery became a major factor toward the late 1990s and 2000 as several phenomenon converged, including the growing domination of email for business communication versus paper, scanning technology reaching its maturity, and the US government increasingly accepting digital images of items such as checks instead of requiring paper originals."

The article further mentions, "In contrast, Barry explains that a typical Western European company’s goal is to protect the privacy of employees in whichever countries they are based. However, the US requires these companies to comply with American rules when operating in its jurisdictions. Basically, if another country’s privacy rules conflict with US ones, the foreign entity can decide to violate rules of the US or its own country – either way, it will incur the wrath of one of the courts – it’s a catch-22."

  1. The article also provides narrative around the following topics:
  2. Evolution of Cloud Computing
  3. Trend Toward Defensible Expiration and Deletion 
  4. Rise of Analytical Technology
  5. Lawyer Jobs in Litigation Review Dwindle or Migrate
  6. Battle of the eDiscovery Credentials
In addition, the article discusses future issues that will further shape the eDiscovery landscape.  The article states, "US history is full of great tales of victory, and the eDiscovery industry is clearly a legend in the making. How many other business sectors have continued to grow exponentially in the face of an international recession? Very few. Time will tell as to whether eDiscovery will continue to grow as a separate entity, level off, or eventually be absorbed into larger companies like IBM and EMC that do enterprise content management and information governance. For now, we can be grateful for controversy and excitement and dollars that eDiscovery has brought into the legal arena. After all, the Fourth of July is never any fun without some fireworks!"

'Lawyerbots' Offer Attorneys Faster, Cheaper Assistants

An article by Britney Fitzgerald posted on the Huffington Post website.

This article examines legal technology, and discusses technology assisted review.

The article states, "As NewScientist reports, the new predictive coding software could "sift through millions of documents and spit out only those the lawyer might need, saving them time and -- crucially -- their clients' money."

Thomas Gricks, an attorney with the Schnader law firm, told NewScientist that the 2 million emails his team needed to review for a case would require 20,000 hours and cost $2 million if searched by human lawyers. He estimated that specialized software programs could perform the same task in two weeks for just 1 percent of the cost. Despite objections from the plaintiffs' legal team, a U.S. judge approved the use of the technology."  A link the referenced article from NewScientist is provided in the article.

The article further states, "In a recent study in the Richmond Journal of Law and Technology, lawyer labor was tested against lawyerbots with predictive coding software. Researchers found "evidence that such technology-assisted processes, while indeed more efficient, can also yield results superior to those of exhaustive manual review." In basic terms, the computers had the humans licked."  A link to the Richmond Journal of Law and Technology article is also provided.

“Defensible E-Discovery”: What does the phrase really mean?

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

This article looks at the frequently used phrase, "Defensible E-Discovery", and examines the definition of this phrase.

The article states, "In e-discovery, process disasters are very real as evidenced by recent court rulings in Taydon v. Greyhound Lines, Inc., EEOC v. McCormick & Schmick’s Seafood Restaurants, Inc., and 915 Broadway Associates, LLC v. Paul, Hastings, Janofsky & Walker, LLP. Yet, the rules around having a defensible e-discovery process are still open to wide interpretation. Even so, federal court rulings are creating clearer guidelines for which judges are instructing legal teams on what constitutes an adequate and defensible e-discovery process. United States Magistrate Judge Cheryl Zwart took it upon herself in Peter Kiewit Sons, Inc. v. Wall Street Equity Group, Inc. to give the defendants a primer on defensibility."

The article discusses the Kiewit case further and provides information regarding steps listed by the court that should be part of a legally defensible process:
  1. Suspend routine document destruction policy
  2. Put a legal hold in place
  3. Legal teams become fully aware of company’s retention policy and data infrastructure
  4. Communicate / Interview “key players” to determine how data is stored
  5. Monitor legal hold compliance to ensure that all sources of discoverable information are identified and searched
  6. Retain all relevant case information
  7. Produce all information that is responsive to opposing party’s production requests