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Doug Austin

Whee! Here’s the First Salary Survey from Women in eDiscovery!: eDiscovery Trends

Earlier this week, Women in eDiscovery (WiE) announced the results of its first ever salary survey!  Let’s take a look.

WiE conducted the 2019 Salary Survey between September 17th and September 27th, 2019, and received 400+ responses from men and women internationally in the eDiscovery industry. Of those responses, 93% of respondents identified as women, and the graphs and information depicted in their report are specific to that 93% who identified as women. The intention was to provide insight into experience, titles, compensation, and benefits specific to women in the eDiscovery industry.

WiE’s survey report provides information on skills, certificates and experience that women may need to advance their eDiscovery careers. It also identifies current trends and compensation, specific to women, which will assist hiring managers to make more informed decisions. WiE intends on releasing the survey annually, allowing for comparative analyses over the years.

“Women in eDiscovery is pleased to provide our first compensation survey for eDiscovery and legal professionals,” says Beth Finkle, executive director, Women in eDiscovery (quoted in this article from Legal IT Professionals). “It provides a unique comparison of salaries, bonuses, job skills, job levels, geographic factors and other industry trends in the eDiscovery and legal sectors.”

“The survey was fully anonymous, with no identifiable data gathered. The questions were designed to minimize response time, while still providing meaningful insights across eDiscovery and legal professionals. We want to thank a handful of WiE members that helped the executive directors formulate the survey and to the legal community who participated in the survey,” continued Finkle.

A couple of notable stats from the eight-page report, which is available here:

  • 84% of respondents work primarily in-office vs. remotely. For the 16% of respondents who answered that they work primarily remotely, California, Arizona, and Texas were the 3 states with the most remote workers.
  • Review Platform Certifications were consistently the top certifications held across job titles with the exceptions of Law Clerks and Paralegal/Legal Assistants, for which Paralegal Certifications was the top certification (both at 19% of total respondents). 12% of respondents held the ACEDS Certification and only 5% of respondents held a Project Management Certification, even though it was the top task performed across all job titles.

The report is chock-full of infographics (have I told you lately how much I love infographics?), especially with regard to compensation, so check it out!

Here’s a Friday bonus link not related to anything eDiscovery related.  Do you ever have trouble guessing who the villain is in some movies?  Here’s a clue for you that may make it easier.  Enjoy!  :o)

So, what do you think?  Do you wonder where you stand in your profession, compensation-wise?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiff Tells Defendant “File Motion to Compel”, Defendant Does and Wins: eDiscovery Case Law

In White v. Relay Res. & Gen. Servs. Admin., NO. C19-0284-JCC (W.D. Wash. Feb. 14, 2020), Washington District Judge John C. Coughenour granted the defendant’s motion to compel, requiring the plaintiff to provide documents responsive to the defendant’s requests for production, provide the information requested in each interrogatory and provide initial disclosures and that “[f]ailing to provide this information may result in sanctions under Rule 37, including dismissal of the matter.”

Case Background

In this employment discrimination claim against the defendant where the plaintiff alleged the defendant discriminated against her because she is deaf, the defendant served 31 requests for production and 13 interrogatories on the plaintiff in November 2019.  The plaintiff responded to these requests about a month later, objecting to the requests for production on various grounds and failing to indicate whether she was withholding responsive documents.  In response to the interrogatories, the plaintiff raised broad objections and did not provide any of the requested information, indicating in each response that she would later provide the requested information if it was “relevant” to responding the interrogatory.  The defendant also claimed that the plaintiff did not produce initial disclosures.

The defendant attempted to meet and confer with the plaintiff two days after receiving her responses, expressing concern with sufficiency of her responses and offering an extension for the plaintiff to supplement her responses.  The defendant also requested an in-person meeting to attempt to resolve the discovery dispute, but the plaintiff refused to meet outside the State of Virginia and also refused a teleconference, stating that she did “not have any line of communication open except emails and written communication.”  So, the defendant proceeded to email the plaintiff specific examples of its “serious concerns regarding the insufficiency of [her] responses.” The plaintiff then supplemented her responses to the requests for production with three screenshots of email correspondence between the plaintiff and the defendant’s employees about benefits, as well as a scanned page from a yearbook.  In response, the defendant informed the plaintiff that if she did not provide responsive documents or answers to its interrogatories by the extended deadline, it had no choice but to file a motion to compel with the Court.  Instead of further supplementing her responses, the plaintiff replied, “Ok. File Motion to Compel.”

Judge’s Ruling

Judge Coughenour first noted that “although the parties did not meet in person or have a telephone conference, Defendant made a good faith effort to satisfy the meet-and-confer requirement before filing the instant motion to compel. Defendant made multiple attempts to resolve its discovery dispute before reaching a genuine impasse on December 30, 2019, when Plaintiff told Defendant to ‘File Motion to Compel.’…Consequently, Defendant has satisfied the meet-and-confer requirement.”

With regard to the requests for production, Judge Coughenour stated: “the Court has reviewed Defendant’s requests for production, and they appear to be relevant and proportional to the case… The Court acknowledges Plaintiff is not represented by counsel and that she may be responding to and cooperating with Defendant to the best of her ability…Nevertheless, Plaintiff’s perfunctory objections do not reflect a good faith effort to comply with discovery rules. Plaintiff must make reasonable efforts to provide documents responsive to Defendant’s requests for production. Failure to do comply may result in sanctions, including dismissal of the present action.”

With regard to the interrogatories, Judge Coughenour found “Defendant’s interrogatories to be facially relevant and proportional to the needs of the case.”  He also stated: “Here, Plaintiff raised vague, broad objections to each of Defendant’s 13 interrogatories and did not provide any of the requested information…Within 30 days, Plaintiff must provide Defendant with the information requested in each interrogatory. Failing to make reasonable efforts to respond to Defendant’s interrogatories may result in sanctions under Rule 37, including dismissal of the matter.”

Judge Coughenour also stated, in fully granting the motion to compel: “Plaintiff is ordered to provide Defendant with initial disclosures at this time. Failing to provide this information may result in sanctions under Rule 37, including dismissal of the matter.”

So, what do you think?  Is the plaintiff’s failure to obtain counsel representation jeopardizing her case before it even gets going?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Here’s a Terrific Listing of eDiscovery Workstream Processes and Tasks: eDiscovery Best Practices

Let’s face it – workflows and workstreams in eDiscovery are as varied as organizations that conduct eDiscovery itself.  Every organization seems to do it a little bit differently, with a different combination of tasks, methodologies and software solutions than anyone else.  But, could a lot of organizations improve their eDiscovery workstreams?  Sure.  Here’s a resource (that you probably already know well) which could help them do just that.

Rob Robinson’s post yesterday on his terrific Complex Discovery site is titled The Workstream of eDiscovery: Considering Processes and Tasks and it provides a very comprehensive list of tasks for eDiscovery processes throughout the life cycle.  As Rob notes:

“From the trigger point for audits, investigations, and litigation to the conclusion of cases and matters with the defensible disposition of data, there are countless ways data discovery and legal discovery professionals approach and administer the discipline of eDiscovery.  Based on an aggregation of research from leading eDiscovery educators, developers, and providers, the following eDiscovery Processes and Tasks listing may be helpful as a planning tool for guiding business and technology discussions and decisions related to the conduct of eDiscovery projects. The processes and tasks highlighted in this listing are not all-inclusive and represent only one of the myriads of approaches to eDiscovery.”

Duly noted.  Nonetheless, the list of processes and tasks is comprehensive.  Here are the number of tasks for each process:

  • Initiation (8 tasks)
  • Legal Hold (11 tasks)
  • Collection (8 tasks)
  • Ingestion (17 tasks)
  • Processing (6 tasks)
  • Analytics (11 tasks)
  • Predictive Coding (6 tasks)*
  • Review (17 tasks)
  • Production/Export (6 tasks)
  • Data Disposition (6 tasks)

That’s 96 total tasks!  But, that’s not all.  There are separate lists of tasks for each method of predictive coding, as well.  Some of the tasks are common to all methods, while others are unique to each method:

  • TAR 1.0 – Simple Active Learning (12 tasks)
  • TAR 1.0 – Simple Passive Learning (9 tasks)
  • TAR 2.0 – Continuous Active Learning (7 tasks)
  • TAR 3.0 – Cluster-Centric CAL (8 tasks)

The complete list of processes and tasks can be found here.  While every organization has a different approach to eDiscovery, many have room for improvement, especially when it comes to exercising due diligence during each process.  Rob provides a comprehensive list of tasks within eDiscovery processes that could help organizations identify steps they could be missing in their processes.

So, what do you think?  How many steps do you have in your eDiscovery processes?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

FBI Says Half of $3.5 Billion Cyber Losses in 2019 Were Due to Business Email Scams: Cybersecurity Trends

The FBI’s Internet Crime Complaint Center (IC3) reported that it received over 460,000 internet and cyber-crime complaints in 2019, which the agency estimates caused losses of more than $3.5 billion, the bureau wrote in its yearly internet crime report released earlier this month.  And, about half of that is due to BEC (Business Email Compromise), aka EAC (Email Account Compromise) crimes, which are sophisticated scams targeting businesses and individuals performing wire transfer payments.

This was reported by ZDNet (FBI: BEC scams accounted for half of the cyber-crime losses in 2019, written by Catalin Cimpanu – hat tip to Sharon Nelson of the excellent Ride the Lightning blog).

“At its heart, BEC relies on the oldest trick in the con artist’s handbook: deception,” the FBI said back in 2017, when it started receiving an increased number of BEC scams reports.

A typical BEC scam happens after hackers either compromise or spoof an email account for a legitimate person/company. They use this email account to send fake invoices or business contractors. These are sent to employees in the same company, or upstream/downstream business partners.

The idea is to trick counterparts into wiring money into the wrong bank accounts.

BEC scams are popular because they’re (1) dead simple to execute, and (2) don’t require advanced coding skills or complex malware.  And, they pay BIG.  There were only 23,775 BEC victims last year, but they accounted for over $1.77 billion in losses for victims, which is an average of $75,000 per complaint.  Wow.  Here’s a breakdown of the loss amounts and victim counts by crime type over last year – as you can see, BEC crimes are almost four times as large as any other by total loss amount, but only sixth in total number of victims:

I wrote (almost to the day, no less) about an email I received last year that I suspect was a BEC scam that appeared to be from CloudNine’s co-founder Brad Jenkins.  But I could tell that it wasn’t because it was identified as an external email.  At CloudNine, we mark any emails coming from an external source to identify them as an external email, which is inserted into the received email to help recipients differentiate between real and fake CloudNine emails.  It’s easy to set up and an effective way to flush out those BEC scam emails.

BTW, the map at the top shows the number of complaints by state and, as you can see, California was the only state with over 30,000 complaints (while Florida, Texas and New York had between 20,000 and 30,000).  But the map is a bit deceiving in this respect – California had 50,132 complaints last year, nearly double that of the next highest states (Florida and Texas, which tied at 27,178 complaints).  Ouch.

So, what do you think?  Do you know someone who has been victimized by a BEC scam?  Please share any comments you might have or if you’d like to know more about a particular topic.

Images Courtesy of 2019 FBI Internet Crime Report

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Is Your Ability to Stay Current with eDiscovery in “Jeopardy”? Check Out This Conference: eDiscovery Best Practices

I mentioned it a few weeks ago, but (believe it or not) we’re now only about 3 1/2 weeks away from the eighth year for the University of Florida E-Discovery Conference.  And, as usual, the panel of speakers is an absolute who’s who in eDiscovery.

The annual one-day conference will be held this year on Thursday, March 19th from 8:00am to 5:40pm ET.  This year, the focus is to show you how to work smarter, not harder to ensure the success of your project.  As you can always expect from the U-Fla conference, there are a veritable plethora of expert presenters, including Craig Ball, George Socha, Tom O’Connor, Scott Milner, Kelly Twigger, Tessa Jacobs, David Horrigan, Canaan Himmelbaum, Suzanne Clark and Julie Brown, among others.  And, a bunch of distinguished federal and state judges, including U.S. Magistrate Judges William Matthewman, Mac McCoy, Patricia Barksdale, and Gary Jones.  And, I’m honored to be participating for the third straight year as one of the presenters.  Well, sort of – I’m going to be one of the “contestants” in “E-Discovery Jeopardy” where Craig Ball is the “Alex Trebek” and Mike Quartararo and Ian Campbell are the other contestants.  Hopefully, I won’t be singing this song afterward!  ;o)

Once again, there will be an E-Discovery Career Fest the day before the conference.  And, for the first time this year, there will be a Solutions Corner at the conference allowing you to experience short demos of legal technology products that may be mentioned throughout the day.  Here is the agenda for the main sessions at the conference (all times ET):

  • 8:15am – 8:50am: THE STATE OF E-DISCOVERY, PRIVACY, AND DATA SECURITY — Our first session begins with an informal chat and dialogue among key industry leaders on the 2020 forces at play in electronic discovery, privacy, and data security.
  • 9:00am – 9:50am: GUIDE TO ADVANCED LEGAL TECHNOLOGIES FOR EVERY BUDGET — This session will guide you through a requirements checklist followed by a tour of the ever-changing e-discovery vendor environment.
  • 10:00am – 10:50am: FROM SLACK TO SNAPCHAT: TACKLING DISCOVERY BEYOND EMAIL — This session will provide a guide to the new communication world from the handheld device to the cloud and back.
  • 11:00am – 11:05am: Industry Update: ACEDS — Mike Quartararo, the Association of Certified E-Discovery Specialists (ACEDS) President will provide a brief overview of the organization and the latest updates.
  • 11:05am – 11:55am: RECENT DEVELOPMENTS IN DATA DISCOVERY CASE LAW AND LEGISLATION — Two lawyers and a judge who keep close watch on e-discovery case law will join us for an analysis of recent court decisions in e-discovery, data privacy, and data protection.
  • 1:00pm – 1:50pm: E-DISCOVERY JEOPARDY — We’ve brought in our very own game show host to engage three of this year’s UF Law E-Discovery Conference Faculty in a battle of wits and wisdom about legal services, e-Discovery, and other topics.
  • 2:00pm – 2:55pm: E-DISCOVERY NUTS & BOLTS — You requested it! Our well-received rapid format of short e-discovery presentations returns again this year.
  • 3:00pm – 3:05pm: Industry Update: EDRM — Mary Mack, Chief Legal Technologist at EDRM will share a brief overview of the organization and the latest updates.
  • 3:15pm – 4:15pm: LEVERAGING SEARCH TO FIND WHAT MATTERS MOST — Let our panel guide you through the thicket of e-discovery search with specific examples and techniques.
  • 4:30pm – 5:30pm: JUDGES & EDISCOVERY: A VIEW FROM THE BENCH — Our distinguished panel of Federal Magistrate Judges return to share with you the keys to e-discovery success in the courtroom.

You can register to attend this day long conference packed with practical advice, experts, hot topics, and Florida CLE credit here for only $99 for live streaming and $199 in person.  There are also discounts available for students, University/College Faculty and Staff and Government and Judicial employees.  Last year, the in-person slots were sold out, so that is another reason to act quickly.  It’s the best one-day educational conference of the year!

So, what do you think?  Are you going to attend the University of Florida E-Discovery Conference?  If not, why not?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Rules on Status of “Functional Employee, Declines Sanctions as Premature: eDiscovery Case Law

In Digital Mentor, Inc. v. Ovivo USA, LLC, No. 2:17-cv-01935-RAJ (W.D. Wash. Feb. 4, 2020), Washington District Judge Richard A. Jones granted in part and denied in part the defendant’s motion to compel, ruling that the plaintiff had not shown that a consultant to the plaintiff met the criterion of being considered a “functional employee” for which all communications with the plaintiff could be considered privileged, but denying the defendant’s request for preclusion sanctions, determining those to be “premature”.

Case Background

In this case involving trademark and copyright infringement and breach of contract claims that the defendant created a “pirated” version of the plaintiff’s product, the parties had a discovery dispute stemming from William Chastain’s consulting role with the plaintiff.  The plaintiff claimed that Chastain was its “functional employee” and so his communications with the plaintiff were subject to attorney-client privilege or work product protection.  Chastain was purportedly involved in the negotiation, discussion and execution of the pertinent contracts and agreements at issue with the defendant, was a direct conduit of the plaintiff in the events leading up to this litigation and was never paid for his role and was never employed by the plaintiff.

The defendant disagreed, claiming that Chastain did not qualify as a “functional employee” and moved to compel the plaintiff to produce all documents relating to Chastain, including correspondence between Chastain, the plaintiff and/or its counsel; even documents identified DMI’s privilege log.  The defendant also sought to prohibit the plaintiff from relying upon any documentation including or relating to Chastain and any testimony from, or referring to, Chastain during hearings or trial and also sought reasonable fees and expenses in bringing the motion.

Judge’s Ruling

Noting that “as one district court indicates, ‘the dispositive question is the consultant’s relationship to the company and whether by virtue of that relationship [s]he possesses information about the company that would assist the company’s attorneys in rendering legal advice’”, Judge Jones stated: “When answered in the affirmative, the consultant is ‘in all relevant respects the functional equivalent of an employee’ and communications between corporate counsel and the consultant may be covered under attorney-client privilege.”

But, Judge Jones continued: “On the record presented, DMI has not shown that Chastain’s involvement meets this criterion. There is no documentation of Chastain’s duties vis-à-vis DMI or its corporate counsel, nor does the record demonstrate that Chastain had specialized knowledge such that counsel would rely on him to facilitate legal advice for the company…There is also little to indicate that communications between Chastain and DMI’s counsel were primarily of a legal, as opposed to a business, nature…Having found that DMI has not met its burden, the Court GRANTS Ovivo’s motion to the extent documents are only being withheld on this basis of privilege. Having found the ‘functional employee’ requirements not met, the Court will not analyze Ovivo’s claims of waiver.”

However, considering preclusion sanctions based on the defendant’s claim that Chastain destroyed relevant documents because (as the plaintiff stated) he “does not keep any emails and/or documentation as he has been a victim of corporate theft and hacking incidents in the past”, Judge Jones stated: “The Court cannot impose sanctions based on Ovivo’s allegations under Rule 37. Sanctions under Rule 37 are allowed only against a party that disobeys a court issued discovery order. However, the court’s inherent authority to impose sanctions for the wrongful destruction of evidence includes the power to exclude evidence that, given the spoliation, would ‘unfairly prejudice an opposing party.’…Although Chastain’s purported email practices seem particularly dubious, the Court agrees with DMI that Ovivo’s request for preclusion sanctions is premature. Ovivo has not presented any evidence in support of its spoliation theory other than Chastain’s failure to produce documents in response to its subpoena…Without evidence about what was purportedly destroyed, when it occurred, what extent DMI had any involvement, and any resulting prejudice, preclusion sanctions are inappropriate. The Court also declines to award attorney’s fees related to this motion.”

So, what do you think?  Is it premature to consider sanctions if the party acknowledges destroying relevant documents?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Special Master Declines to Order Defendant to Use TAR, Rules on Other Search Protocol Disputes: eDiscovery Case Law

In the case In re Mercedes-Benz Emissions Litig., No. 2:16-cv-881 (KM) (ESK) (D.N.J. Jan. 9, 2020), Special Master Dennis Cavanaugh (U.S.D.J., Ret.) issued an order and opinion stating that he would not compel defendants to use technology assisted review (TAR), and instead adopted the search term protocol negotiated by the parties, with three areas of dispute resolved by his ruling.

Case Background

In this emissions test class action involving an automobile manufacturer, the plaintiffs proposed that the defendants use predictive coding/TAR, asserting that TAR yields significantly better results than either traditional human “eyes on” review of the full data set or the use of search terms.  The plaintiffs also argued that if the Court were to decline to compel the defendants to adopt TAR, the Court should enter its proposed Search Term Protocol.

The defendants argued that there is no authority for imposing TAR on an objecting party and that this case presented a number of unique issues that would make developing an appropriate and effective seed set challenging, such as language and translation issues, unique acronyms and identifiers, redacted documents, and technical documents. As a result, they contended that they should be permitted to utilize their preferred custodian-and-search term approach.

Judge’s Ruling

Citing Rio Tinto Plc v. Vale S.A., Special Master Cavanaugh quoted from that case in stating: “While ‘the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it’…, no court has ordered a party to engage in TAR over the objection of that party. The few courts that have considered this issue have all declined to compel predictive coding.”  Citing Hyles v. New York City (another case ruling by now retired New York Magistrate Judge Andrew J. Peck), Special Master Cavanaugh stated: “Despite the fact that it is widely recognized that ‘TAR is cheaper, more efficient and superior to keyword searching’…, courts also recognize that responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for producing their own electronically stored information.”

As a result, Special Master Cavanaugh ruled: “While the Special Master believes TAR would likely be a more cost effective and efficient methodology for identifying responsive documents, Defendants may evaluate and decide for themselves the appropriate technology for producing their ESI. Therefore, the Special Master will not order Defendants to utilize TAR at this time. However, Defendants are cautioned that the Special Master will not look favorably on any future arguments related to burden of discovery requests, specifically cost and proportionality, when Defendants have chosen to utilize the custodian-and-search term approach despite wide acceptance that TAR is cheaper, more efficient and superior to keyword searching. Additionally, the denial of Plaintiffs’ request to compel Defendants to utilize TAR is without prejudice to revisiting this issue if Plaintiffs contend that Defendants’ actual production is deficient.”

Special Master Cavanaugh also ruled on areas of dispute regarding the proposed Search Term Protocol, as follows:

  • Validation: Special Master Cavanaugh noted that “the parties have been able to reach agreement on the terms of Defendants’ validation process, [but] the parties are at an impasse regarding the level of validation of Plaintiffs’ search term results”, observing that “Plaintiffs’ proposal does not articulate how it will perform appropriate sampling and quality control measures to achieve the appropriate level of validation.” As a result, Special Master Cavanaugh, while encouraging the parties to work together to develop a reasonable procedure for the validation of Plaintiffs’ search terms, ruled: “As no articulable alternative process has been proposed by Plaintiffs, the Special Master will adopt Defendants’ protocol to the extent that it will require the parties, at Defendants’ request, to meet and confer concerning the application of validation procedures described in paragraph 12(a) to Plaintiffs, if the parties are unable to agree to a procedure.”
  • Known Responsive Documents & Discrete Collections: The defendants objected to the plaintiffs’ protocol to require the production of all documents and ESI “known” to be responsive as “vague, exceedingly burdensome, and provides no clear standard for the court to administer or the parties to apply”. The defendants also objected to the plaintiffs’ request for “folders or collections of information that are known to contain documents likely to be responsive to a discovery request” as “overly broad and flouts the requirement that discovery be proportional to the needs of the case.”  Noting that “Defendants already agreed to produce materials that are known to be responsive at the November status conference”, Special Master Cavanaugh decided to “modify the Search Term Protocol to require production of materials that are ‘reasonably known’ to be responsive.”  He also decided to require the parties to collect folders or collections of information “to the extent it is reasonably known to the producing party”, also requiring “the parties to meet and confer if a party believes a discrete document folder or collection of information that is relevant to a claim or defense is too voluminous to make review of each document proportional to the needs of the case.”

So, what do you think?  Should a decision not to use TAR negatively impact a party’s ability to make burden of discovery arguments?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Related to this topic, Rob Robinson’s Complex Discovery site published its Predictive Coding Technologies and Protocols Spring 2020 Survey results last week, which (as always) provides results on most often used primary predictive coding platforms and technologies, as well as most-often used TAR protocols and areas where TAR is most used (among other results).  You can check it out at the link directly above.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Love Our Blog? The Blog Loves You Too!: eDiscovery Love Story

It’s Valentine’s Day, which means it’s a great day to talk about love!  But, this is an eDiscovery blog, so let me take this opportunity to “spread some love” to all of you who read the blog every day (or at least many days) and help spread that love to others!

When we started the blog nearly ten years ago, we were thrilled when we broke 100 views for the first time.  Now, we have thousands of views every day!  We’ve seen quite a few blogs come and go during that time (or at least go dormant).  And, we have more people than ever who share or reference our content – in just the past week, that includes people like Chris Dix, Linda DeVos, Lilith Bat-Leah, Mike Quartararo, Maribel Rivera, Kaylee Walstad (twice!), Sharon Nelson, Kelly Twigger and Suzanne Clark!  And, that doesn’t include all of my CloudNine colleagues who regularly redistribute our content on LinkedIn and other social channels!

Blogs and publications that have regularly covered us include Rob Robinson’s Complex Discovery blog, Craig Ball’s Ball in Your Court blog, the daily PinHawk Law Technology Digest (tirelessly edited by Jeffrey Brandt), Tom O’Connor’s Techno Gumbo blog (not to mention thanks for all Tom’s original direct articles published on this blog!), and Sharon Nelson’s Ride the Lightning blog, and the ACEDS blog, among others.  Not to mention EDRM, which has redistributed our daily posts for years!  Years!  If you don’t already read these publications regularly, you should!

Thanks to everybody for “spreading the love” about our blog!  We love you back!

Of course, because it’s Valentine’s Day, that means it’s time once again to feature my beautiful wife Paige on our blog!  I hope everyone is as blessed as I am to share this day with the love of my life!  I love you honey!

So, what do you think?  What eDiscovery publications do you love?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

How Long Will it Take to Crack Your Password?: Cybersecurity Trends

Have I mentioned lately how much I love an infographic?  Well, I do. And this latest infographic that I have come across – from a Facebook friend who is also a colleague nonetheless – is a great one to note when considering your own passwords.

As you can see from the infographic above, the size and composition of your password could dramatically affect how long it takes to crack the password.  For example:

  • If you have a password that is numbers only, a password that is as much as eight numbers (that’s nearly 100 million number combinations) can still be cracked instantly;
  • Even if that number only password is 14 numbers (that’s nearly 100 trillion number combinations), it only takes four days to crack a password even that size;
  • Want to use all upper and lower case letters instead? That will help somewhat, but a five-letter password can still be cracked instantly;
  • And a nine-letter password will still only take 4 days to crack;
  • Want to mix numbers and upper and lower case letters? You’d better use more than seven characters or it will take no more than 3 hours to crack your password;
  • Even with eight characters, it could still take as few as ten days;
  • If you add in symbols, then a seven character password could still take less than a day;
  • But, if you add an eighth character, that pushes the time up to 57 days. Add a ninth character? That pushes the time up to 12 years;
  • But, notably, size does matter – when it comes to passwords and other things. ;o)  An 18 number password still takes 126 years to crack, an 18 letter password takes a trillion years, an 18 number and letter password takes 374 trillion years and an 18 number, letter and symbol password takes 1 quintillion years!

Ain’t nobody got time for that!

Interesting!  Of course, that’s one school of thought – here’s another, straight from the man who originally wrote password advice for the National Institute of Standards and Technology (NIST) and ultimately decided that advice was wrong.  And, here’s a case from last year involving a criminal defendant who used a 64-character password to protect his device!

As I mentioned, I got this infographic from a Facebook friend – Michael Potters, who is also the CEO and Managing Partner of the Glenmont Group.  It may be available in other places (not sure where it started), but I got it from Michael, so hat tip to him for the info!

So, what do you think?  Does this change your thinking about password creation?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Observations about Legaltech 2020 from Attendees, Part Two: eDiscovery Trends

As I’ve done the past four years, I reached out to several Legaltech attendees (some of whom I met with during the show) to get their thoughts and impressions of this year’s show.  We had so many people respond that I decided to split their feedback into two posts.  Yesterday was the first half, here are the remaining observations.  And, no, I didn’t split this into two posts just so I could save myself another day of writing, my observations are at the bottom of this post.  ;o)

As always, these should be taken as their personal opinions and observations regarding the show, not those of their employer or clients.  Here are additional observations from attendees of the show:

“This year ALM re-did the layout of exhibit halls and the exhibitors stepped up their game with bigger booths that also had more open space to engage with attendees. Though much smaller than in previous years, the new flow encouraged traffic to booths and seemed to ignite much needed energy in the conference that had been lacking the past few years. Ted-style talks seemed to be a big theme allowing for quick presentations mixed in with the usual panel style presentations not just in meeting rooms but throughout the venue. And lastly, diversity and data privacy were the two topics that continuously came up in conversations. My last takeaway–provide honest feedback about your experience. The more we do that either through articles such as this or the post-conference survey, the more it will help to improve Legalweek and what happens there (or any conference for that matter).”

— Maribel Rivera, Marketing and Events Specialist

I was actually prepared to be disappointed after last years rather dreary show but instead found myself pleasantly reinvigorated seeing old friends and colleagues such as Monica Bay, Neil Aresty, Patrick Oot, George Socha and Robert Singleton.  It reminded me that my pre show attitude was more jaded than I had realized and that the real strength of the conference is the people it draws together.  If you don’t go you won’t know.

— Tom O’Connor, Director, Gulf Coast Legal Tech Center

“I heard the phrase, ‘Change Management,’ more during the three days of Legaltech at Legalweek than the entire rest of my life combined. Is it an exciting and growing concept or merely window dressing on the tired, overhyped concept of ‘Innovation’? Only time will tell.”

— David Horrigan, Discovery Counsel and Legal Education Director

“‘Management’ was the constant refrain emanating from Legalweek 2020 in New York this week.  Apparently, you can learn to manage just about anything in legal these days with the aid of technology, process design and qualified human resources.  From change management to contract management, case management to eDiscovery project management, and the all-important management of client expectations who look to technology and consultants to solve their most complex problems…the ubiquity of management is here to stay in legal tech.”

— Christy Burke, President, Burke & Company LLC

“This was a very exciting LegalWeek to catch up with friends and colleagues. The conference was buzzing with many industry professionals and I overheard one main theme: short message analysis. Like the early days of email management for eDiscovery, text messages, #Slack, chat etc. are the new wild west for investigators and litigants.”

— Rick Clark, Chief Strategy Officer, ESI Analyst

“Legaltech has gone mainstream. In addition to speaking with their clients and prospects, a number of my contacts mentioned meeting with investors and other professionals interested in learning more about how to incorporate legal technology into their portfolios. The conference itself also seems to have increased global appeal. I was lucky to speak with attendees from Australia, Canada, Finland, Germany, India, Israel, the U.K., and Russia.”

— Ari Kaplan, Legal Industry Analyst & Principal, Ari Kaplan Advisors

And, here are my observations from the show:

From a CloudNine perspective, Legaltech was once again a great conference – from our NineForum sessions at the booth once again to our terrific #DrinkswithDougandMary happy hour with EDRM and Compliance Discovery to a number of great meetings with clients and prospects discussing all of the exciting new capabilities and products at CloudNine!  It was a great show for us!

As for the show in general, it seems that the trend for the “show outside the show” has continued.  There are a lot of attendees at the event that never seem to attend the conference officially but are still there because it’s a terrific opportunity to connect (or reconnect) with clients and prospects or to catch up with old friends.  It seems more and more, when I ask folks how the show is going for them, they talk about how their meetings are going, not about the sessions or the interesting new developments they’ve seen at the exhibit hall.  Legaltech seems as busy as always, but actual participation in Legaltech seems to be down once again.  Of course, I’m one of those who was mostly busy out of the show (other than some time at the booth, especially for our NineForum sessions), so I could be wrong.  ;o)

So, what do you think?  Did you attend Legaltech last week?  What did you think of this year’s show?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.