Wrapping Your Arms Around e-Discovery

http://ow.ly/borBu

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

Investing to avoid the mere imputation of sanctionable eDiscovery conduct

http://ow.ly/bmX0o

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

http://ow.ly/bmRWY

An article by Suzanne Dawson and Matt Kelly posted on the pwc.com 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)"

Eaton Executives' Affidavits Focus on E-discovery Problems

http://ow.ly/blf6p

An article by Sue Reisinger posted on law.com 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

http://ow.ly/blf6p

An article by

E-Discovery Gamers: Join Me In Stopping Them

http://ow.ly/blb5A

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."

10 Bonehead Mistakes That Can Kill an EDD Search

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202555603419&thepage=1


An Article by Craig Ball on LAW.com





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.