Expanding TAR to become Predictive Discovery

http://ow.ly/c7lqx

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

http://ow.ly/c6zBQ

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

http://ow.ly/c6yff

An article by Allie Philpin posted on the enterprisecommunications.com 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."

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

http://ow.ly/c3BRN


An article by Monica Bay posted on law.com 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.""

eDiscovery in America – A Legend in the Making

http://ow.ly/bZiUc

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

http://ow.ly/bZ2Bs

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?

http://ow.ly/bZ1Lf

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