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eDiscovery Trends: Tom Gelbmann of Gelbmann & Associates, LLC
 

This is the fourth of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Tom Gelbmann. Tom is Principal of Gelbmann & Associates, LLC.  Since 1993, Gelbmann & Associates, LLC has advised law firms and Corporate Law Departments to realize the full benefit of their investments in Information Technology.  Tom has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; last year he and George Socha converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and George Socha launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle and there are nine active projects with over 300 members from 81 participating organizations.

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?  And which trend(s), if any, haven’t emerged to this point like you thought they would?

I’m seeing an interesting trend regarding offerings from traditional top tier eDiscovery providers. Organizations who have invested in eDiscovery related technologies are beginning to realize these same technologies can be applied to information governance and compliance and enable an organization to get a much greater grasp on its total content.  Greater understanding of location and profile of content not only helps with eDiscovery and compliance, but also business intelligence and finally – destruction – something few organizations are willing to address.

We have often heard – Storage is cheap. The full sentence should be: Storage is cheap, but management is expensive.  I think that a lot of the tools that have been applied for collection, culling, search and analysis enable organizations to look at large quantities of information that is needlessly retained. It also allows them to take a look at information and get some insights on their processes and how that information is either helping their processes or, more importantly, hindering those processes and I think it's something you're going to see will help sell these tools upstream rather than downstream.

As far as items that haven't quite taken off, I think that technology assisted coding – I prefer that term over “predictive coding” – is coming, but it's not there yet.  It’s going to take a little bit more, not necessarily waiting for the judiciary to help, but just for organizations to have good experiences that they could talk about that demonstrate the value.  You're not going to remove the human from the process.  But, it's giving the human a better tool.  It’s like John Henry, with the ax versus the steam engine.  You can cut a lot more wood with the steam engine, but you still need the human.

What are your general observations about LTNY this year and how it fits into emerging trends?

Based on the sessions that I've attended, I think there's much more education.  There's just really more practical information for people to take away on how to manage eDiscovery and deal with eDiscovery related products or problems, whether it's cross-border issues, how to deal with the volumes, how to bring processes in house or work effectively with vendors.  There's a lot more practical “how-tos” than I've seen in the past.

What are you working on that you’d like our readers to know about?

Well, I think one of the things I'm very proud of with EDRM is that just before LegalTech, we put out a press release of what's happening with the projects, and I'm very pleased that five of the nine EDRM projects had significant announcements.  You can go to EDRM.net for that press release that details those accomplishments, but it shows that EDRM is very vibrant, and the teams are actually making good progress. 

Secondly, George Socha and I are very proud about the progress of Apersee, which was announced last year at LegalTech.  We've learned a lot, and we've listened to our clientele in the market – consumers and providers.  We listened, and then our customers changed their mind.  But, as a result, it's on a stronger track and we're very proud to announce that we have two gold sponsors, AccessData and Nuix.  We’re also talking to additional potential sponsors, and I think we'll have those announcements very shortly.

Thanks, Tom, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: Christine Musil of Informative Graphics Corporation (IGC)
 

This is the second of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends? (Note: Christine was interviewed the night before the show, so there were obviously no observations at that point)
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Christine Musil.  Christine has a diverse career in engineering and marketing spanning 18 years. Christine has been with IGC since March 1996, when she started as a technical writer and a quality assurance engineer. After moving to marketing in 2001, she has applied her in-depth knowledge of IGC's products and benefits to marketing initiatives, including branding, overall messaging, and public relations. She has also been a contributing author to a number of publications on archiving formats, redaction, and viewing technology in the enterprise.

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?  And which trend(s), if any, haven’t emerged to this point like you thought they would?

That's a hard question.  Especially for us because we're somewhat tangential to the market, and not as deeply enmeshed in the market as a lot of the other vendors are.  I think the number of acquisitions in the industry was what we expected, though maybe the M&A players themselves were surprising.  For example, I didn't personally see the recent ADI acquisition (Applied Discovery acquired by Siris Capital) coming.  And while we weren’t surprised that Clearwell was acquired, we thought that their being acquired by Symantec was an interesting move.

So, we expect the consolidation to continue.  We watched the major content management players like EMC OpenText to see if they would acquire additional, targeted eDiscovery providers to round out some of their solutions, but through 2011 they didn’t seem to have decided whether they're “all in” despite some previous acquisitions in the space.  We had wondered if some of them have decided maybe they're out again, though EMC is here in force for Kazeon this year.  So, I think that’s some of what surprised me about the market.

Other trends that I see are potentially more changes in the FRCP (Federal Rules of Civil Procedure) and probably a continued push towards project-based pricing.    We have certainly felt the pressure to do more project-based pricing, so we're watching that. Escalating data volumes have caused cost increases and, obviously, something's going to have to give there.  That's where I think we’re going to see more regulations come out through new FRCP rules to provide more proportionality to the Discovery process, or clients will simply dictate more pricing alternatives.

What are you working on that you’d like our readers to know about?

We just announced a new release of our Brava!® product, version 7.1, at the show.  The biggest additions to Brava are in the Enterprise version, and we’re debuting a the new Brava Changemark®  Viewer (Changemark®) for smartphones as well as an upcoming Brava HTML client for tablets.  iPads have been a bigger game changer than I think a lot of people even anticipated.  So, we’re excited about it. Also new with Brava 7.1 isvideo collaboration and improved enterprise readiness and performance for very large deployments.

We also just announced the results of our Redaction Survey, which we conducted to gauge user adoption of toward electronic redaction software. Nearly 65% of the survey respondents were from law firms, so that was a key indicator of the importance of redaction within the legal community.  Of the respondents, 25% of them indicated that they are still doing redaction manually, with markers or redaction tape, 32% are redacting electronically, and nearly 38% are using a combined approach with paper-based and software-driven redaction.  Of those that redact electronically, the reasons that they prefer electronic redaction included professional look of the redactions, time savings, efficiency and “environmental friendliness” of doing it electronically. 

For us, it's exciting moving into those areas and our partnerships continue to be exciting, as well.  We have partnerships with LexisNexis and Clearwell, both of which are unaffected by the recent acquisitions.  So, that's what's new at IGC.

Thanks, Christine, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: George Socha of Socha Consulting
 

This is the first of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is George Socha.  A litigator for 16 years, George is President of Socha Consulting LLC, offering services as an electronic discovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support. George has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; last year he and Tom Gelbmann converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and Tom Gelbmann launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle and there are nine active projects with over 300 members from 81 participating organizations.  George has a J.D. for Cornell Law School and a B.A. from the University of Wisconsin – Madison.

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?

I may have said this last year too, but it holds true even more this year – if there's an emerging trend, it's the trend of people talking about the emerging trend.  It started last year and this year every person in the industry seems to be delivering the emerging trend.  Not to be too crass about it, but often the message is, "Buy our stuff", a message that is not especially helpful.

Regarding actual emerging trends, each year we all try to sum up legal tech in two or three words.  The two words for this year can be “predictive coding.”  Use whatever name you want, but that's what everyone seems to be hawking and talking about at LegalTech this year.  This does not necessarily mean they really can deliver.  It doesn't mean they know what “predictive coding” is.  And it doesn't mean they've figured out what to do with “predictive coding.”  Having said that, expanding the use of machine assisted review capabilities as part of the e-discovery process is a important step forward.  It also has been a while coming.  The earliest I can remember working with a client, doing what's now being called predictive coding, was in 2003.  A key difference is that at that time they had to create their own tools.  There wasn't really anything they could buy to help them with the process.

Which trend(s), if any, haven’t emerged to this point like you thought they would?

One thing I don't yet hear is discussion about using predictive coding capabilities as a tool to assist with determining what data to preserve in the first place.  Right now the focus is almost exclusively on what do you do once you’ve “teed up” data for review, and then how to use predictive coding to try to help with the review process.

Think about taking the predictive coding capabilities and using them early on to make defensible decisions about what to and what not to preserve and collect.  Then consider continuing to use those capabilities throughout the e-discovery process.  Finally, look into using those capabilities to more effectively analyze the data you're seeing, not just to determine relevance or privilege, but also to help you figure out how to handle the matter and what to do on a substantive level.

What are your general observations about LTNY this year and how it fits into emerging trends?

Well, Legal Tech continues to have been taken over by electronic discovery.  As a result, we tend to overlook whole worlds of technologies that can be used to support and enhance the practice of law. It is unfortunate that in our hyper-focus on e-discovery, we risk losing track of those other capabilities.

What are you working on that you’d like our readers to know about?

With regard to EDRM, we recently announced that we have hit key milestones in five projects.  Our EDRM Enron Email Data Set has now officially become an Amazon public dataset, which I think will mean wider use of the materials.

We announced the publication of our Model Code of Conduct, which was five years in the making.  We have four signatories so far, and are looking forward to seeing more organizations sign on.

We announced the publication of version 2.0 of our EDRM XML schema.  It's a tightened-up schema, reorganized so that it should be a bit easier to use and more efficient in the operation.

With the Metrics project, we are beginning to add information to a database that we've developed to gather metrics, the objective being to be able to make available metrics with an empirical basis, rather than the types of numbers bandied about today, where no one seems to know how they were arrived at. Also, last year the Uniform Task Billing Management System (UTBMS) code set for litigation was updated.  The codes to use for tracking e-discovery activities were expanded from a single code that covered not just e-discovery but other activities, to a number of codes based on the EDRM Metrics code set.

On the Information Governance Reference Model (IGRM) side, we recently published a joint white paper with ARMA.  The paper cross-maps the EDRMs Information Governance Reference Model (IGRM) with ARMA's Generally Accepted Recordkeeping Principles (GARP).  We look forward to more collaborative materials coming out of the two organizations.

As for Apersee, we continue to allow consumers search the data on the site for free, but we also are longer charging providers a fee for their information to be available.  Instead, we now have two sponsors and some advertising on the site.  This means that any provider can put information in, and everyone can search that information.  The more data that goes in, the more useful the searching process comes because.  All this fits our goal of creating a better way to match consumers with the providers who have the services, software, skills and expertise that the consumers actually need.

And on a consulting and testifying side, I continue to work a broad array of law firms; corporate and governmental consumers of e-discovery services and software; and providers offering those capabilities.

Thanks, George, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: “Assisted” is the Key Word for Technology Assisted Review
 

As noted in our blog post entitled 2012 Predictions – By The Numbers, almost all of the sets of eDiscovery predictions we reviewed (9 out of 10) predicted a greater emphasis on Technology Assisted Review (TAR) in the coming year.  It was one of our predictions, as well.  And, during all three days at LegalTech New York (LTNY) a couple of weeks ago, sessions were conducted that addressed technology assisted review concepts and best practices.

While some equate technology assisted review with predictive coding, other technology approaches such as conceptual clustering are also increasing in popularity.  They qualify as TAR approaches, as well.  However, for purposes of this blog post, we will focus on predictive coding.

Over a year ago, I attended a Virtual LegalTech session entitled Frontiers of E-Discovery: What Lawyers Need to Know About “Predictive Coding” and wrote a blog post from that entitled What the Heck is “Predictive Coding”?  The speakers for the session were Jason R. Baron, Maura Grossman and Bennett Borden (Jason and Bennett are previous thought leader interviewees on this blog).  The panel gave the best descriptive definition that I’ve seen yet for predictive coding, as follows:

“The use of machine learning technologies to categorize an entire collection of documents as responsive or non-responsive, based on human review of only a subset of the document collection. These technologies typically rank the documents from most to least likely to be responsive to a specific information request. This ranking can then be used to “cut” or partition the documents into one or more categories, such as potentially responsive or not, in need of further review or not, etc.”

It’s very cool technology and capable of efficient and accurate review of the document collection, saving costs without sacrificing quality of review (in some cases, it yields even better results than traditional manual review).  However, there is one key phrase in the definition above that can make or break the success of the predictive coding process: “based on human review of only a subset of the document collection”. 

Key to the success of any review effort, whether linear or technology assisted, is knowledge of the subject matter.  For linear review, knowledge of the subject matter usually results in preparation of high quality review instructions that (assuming the reviewers competently follow those instructions) result in a high quality review.  In the case of predictive coding, use of subject matter experts (SMEs) to review a core subset of documents (typically known as a “seed set”) and make determinations regarding that subset is what enables the technology in predictive coding to “predict” the responsiveness and importance of the remaining documents in the collection.  The more knowledgeable the SMEs are in creating the “seed set”, the more accurate the “predictions” will be.

And, as is the case with other processes such as document searching, sampling the results (by determining the appropriate sample size of responsive and non-responsive items, randomly selecting those samples and reviewing both groups – responsive and non-responsive – to test the results) will enable you to determine how effective the process was in predictively coding the document set.  If sampling shows that the process yielded inadequate results, take what you’ve learned from the sample set review and apply it to create a more accurate “seed set” for re-categorizing the document collection.  Sampling will enable you to defend the accuracy of the predictive coding process, while saving considerable review costs.

So, what do you think?  Have you utilized predictive coding in any of your reviews?  How did it work for you?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Trends: 2012 Predictions – By The Numbers

With a nod to Nick Bakay, “It’s all so simple when you break things down scientifically.”

The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year.  I know what you’re thinking – “oh no, not another set of eDiscovery predictions!”  However, at eDiscovery Daily, we do things a little bit differently.  We like to take a look at other predictions and see if we can spot some common trends among those before offering some of our own (consider it the ultimate “cheat sheet”).  So, as I did last year, I went “googling” for 2012 eDiscovery predictions, and organized the predictions into common themes.  I found eDiscovery predictions here, here, here, here, here, here and Applied Discovery.  Oh, and also here, here and here.  Ten sets of predictions in all!  Whew!

A couple of quick comments: 1) Not all of these are from the original sources, but the links above attribute the original sources when they are re-prints.  If I have failed to accurately attribute the original source for a set of predictions, please feel free to comment.  2) This is probably not an exhaustive list of predictions (I have other duties in my “day job”, so I couldn’t search forever), so I apologize if I’ve left anybody’s published predictions out.  Again, feel free to comment if you’re aware of other predictions.

Here are some of the common themes:

  • Technology Assisted Review: Nine out of ten “prognosticators” (up from 2 out of 7 last year) predicted a greater emphasis/adoption of technological approaches.  While some equate technology assisted review with predictive coding, other technology approaches such as conceptual clustering are also increasing in popularity.  Clearly, as the amount of data associated with the typical litigation rises dramatically, technology is playing a greater role to enable attorneys manage the review more effectively and efficiently.
  • eDiscovery Best Practices Combining People and Technology: Seven out of ten “augurs” also had predictions related to various themes associated with eDiscovery best practices, especially processes that combine people and technology.  Some have categorized it as a “maturation” of the eDiscovery process, with corporations becoming smarter about eDiscovery and integrating it into core business practices.  We’ve had numerous posts regarding to eDiscovery best practices in the past year, click here for a selection of them.
  • Social Media Discovery: Six “pundits” forecasted a continued growth in sources and issues related to social media discovery.  Bet you didn’t see that one coming!  For a look back at cases from 2011 dealing with social media issues, click here.
  • Information Governance: Five “soothsayers” presaged various themes related to the promotion of information governance practices and programs, ranging from a simple “no more data hoarding” to an “emergence of Information Management platforms”.  For our posts related to Information Governance and management issues, click here.
  • Cloud Computing: Five “mediums” (but are they happy mediums?) predict that ESI and eDiscovery will continue to move to the cloud.  Frankly, given the predictions in cloud growth by Forrester and Gartner, I’m surprised that there were only five predictions.  Perhaps predicting growth of the cloud has become “old hat”.
  • Focus on eDiscovery Rules / Court Guidance: Four “prophets” (yes, I still have my thesaurus!) expect courts to provide greater guidance on eDiscovery best practices in the coming year via a combination of case law and pilot programs/model orders to establish expectations up front.
  • Complex Data Collection: Four “psychics” also predicted that data collection will continue to become more complex as data sources abound, the custodian-based collection model comes under stress and self-collection gives way to more automated techniques.

The “others receiving votes” category (three predicting each of these) included cost shifting and increased awards of eDiscovery costs to the prevailing party in litigation, flexible eDiscovery pricing and predictable or reduced costs, continued focus on international discovery and continued debate on potential new eDiscovery rules.  Two each predicted continued consolidation of eDiscovery providers, de-emphasis on use of backup tapes, de-emphasis on use of eMail, multi-matter eDiscovery management (to leverage knowledge gained in previous cases), risk assessment /statistical analysis and more single platform solutions.  And, one predicted more action on eDiscovery certifications.

Some interesting predictions.  Tune in tomorrow for ours!

So, what do you think?  Care to offer your own “hunches” from your crystal ball?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Trends: ARMA International and EDRM Jointly Release Information Governance White Paper
 

A few months ago, the Electronic Discovery Reference Model (EDRM) and ARMA International announced that they would be collaborating on information governance guidelines for eDiscovery.  It only took them a little over three months to release their first work product.

On December 20 of last year, ARMA and EDRM announced the publication of a jointly developed white paper entitled, How the Information Governance Reference Model (IGRM) Complements ARMA International’s Generally Accepted Recordkeeping Principles (GARP).  The press release announcing the release of the white paper can be found on the EDRM site here.  The web version of the paper is located here and the PDF version can be downloaded here.

The core of the paper is to relate the EDRM Information Governance Reference Model (IGRM) to ARMA’s GARP® principles.  There are eight GARP principles, as follows:

  1. Accountability
  2. Transparency
  3. Integrity
  4. Protection
  5. Compliance
  6. Availability
  7. Retention
  8. Disposition

The white paper provides a chart for assigning ownership to each business unit for each GARP principle and describes the Maturity Model with five levels of effective Information Governance, ranging from Level 1 (Sub-standard) to Level 5 (Transformational).  Transformational 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”.  Based on the CGOC Information Governance Benchmark Report from a little over a year ago, most organizations have quite a bit of maturing still to do.

The white paper then proceeds to describe each of the eight principles “According to GARP” at Level 5 Transformational Maturity.  Where’s Robin Williams when you need him?  The white paper finishes with several conclusions noting that “the IGRM complements the metrics defined by ARMA International’s Information Governance Maturity Model”.

This white paper provides a great overview of both the IGRM and ARMA GARP principles and is well worth reading to develop an understanding of both models.  It will be interesting to see how the EDRM and ARMA joint effort proceeds from here to help organizations achieve a higher level of “maturity” when it comes to information governance.

So, what do you think?  Have you read the white paper yet?  Do you think the EDRM/ARMA collaboration will lead to greater information governance within organizations?  As always, please share any comments you might have or if you’d like to know more about a particular topic!

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

eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases
 

Since eDiscovery Daily debuted over 14 months ago, we’ve covered a lot of case law decisions related to eDiscovery.  65 posts related to case law to date, in fact.  We’ve covered cases associated with sanctions related to failure to preserve data, issues associated with incomplete collections, inadequate searching methodologies, and inadvertent disclosures of privileged documents, among other things.  We’ve noted that 80% of the costs associated with eDiscovery are in the Review phase and that volume of data and sources from which to retrieve it (including social media and “cloud” repositories) are growing exponentially.  Most of the “press” associated with eDiscovery ranges from the “left side of the EDRM model” (i.e., Information Management, Identification, Preservation, Collection) through the stages to prepare materials for production (i.e., Processing, Review and Analysis).

All of those phases lead to one inevitable stage in eDiscovery: Production.  Yet, few people talk about the actual production step.  If Preservation, Collection and Review are the “John”, “Paul” and “George” of the eDiscovery process, Production is “Ringo”.

It’s the final crucial step in the process, and if it’s not handled correctly, all of the due diligence spent in the earlier phases could mean nothing.  So, it’s important to plan for production up front and to apply a number of quality control (QC) checks to the actual production set to ensure that the production process goes as smooth as possible.

Planning for Production Up Front

When discussing the production requirements with opposing counsel, it’s important to ensure that those requirements make sense, not only from a legal standpoint, but a technical standpoint as well.  Involve support and IT personnel in the process of deciding those parameters as they will be the people who have to meet them.  Issues to be addressed include, but not limited to:

  • Format of production (e.g., paper, images or native files);
  • Organization of files (e.g., organized by custodian, legal issue, etc.);
  • Numbering scheme (e.g., Bates labels for images, sequential file names for native files);
  • Handling of confidential and privileged documents, including log requirements and stamps to be applied;
  • Handling of redactions;
  • Format and content of production log;
  • Production media (e.g., CD, DVD, portable hard drive, FTP, etc.).

I was involved in a case recently where opposing counsel was requesting an unusual production format where the names of the files would be the subject line of the emails being produced (for example, “Re: Completed Contract, dated 12/01/2011”).  Two issues with that approach: 1) The proposed format only addressed emails, and 2) Windows file names don’t support certain characters, such as colons (:) or slashes (/).  I provided that feedback to the attorneys so that they could address with opposing counsel and hopefully agree on a revised format that made more sense.  So, let the tech folks confirm the feasibility of the production parameters.

The workflow throughout the eDiscovery process should also keep in mind the end goal of meeting the agreed upon production requirements.  For example, if you’re producing native files with metadata, you may need to take appropriate steps to keep the metadata intact during the collection and review process so that the metadata is not inadvertently changed. For some file types, metadata is changed merely by opening the file, so it may be necessary to collect the files in a forensically sound manner and conduct review using copies of the files to keep the originals intact.

Tomorrow, we will talk about preparing the production set and performing QC checks to ensure that the ESI being produced to the requesting party is complete and accurate.

So, what do you think?  Have you had issues with production planning in your cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Reporting from the 2011 EDRM Mid-Year Meeting
 

The Electronic Discovery Reference Model (EDRM) Project, created to address the lack of standards and guidelines in the electronic discovery market, is now in its seventh year of operation.  Most references to the eDiscovery industry these days refer to the EDRM model as the standard representation of the eDiscovery life cycle.  I’m happy to say I’ve been a participating member for all but the first year of its existence and that CloudNine Discovery is a participating provider.  And, this blog has certainly noted some of the recent efforts and accomplishments within EDRM, including the recently announced information governance collaboration efforts between EDRM and ARMA and the announcement of the first draft of the Model Code of Conduct (MCoC) to focus on the ethical duties of eDiscovery service providers and their clients.

This week, the EDRM Mid-Year meeting has taken place in St. Paul, MN (giving some of us a chance to break out our winter clothes early!).  Twice a year, in May and October, eDiscovery professionals who are EDRM members meet to continue the process of working together on various standards projects.

I have joined the new Testing working group, which has been created to provide a methodology for risk evaluation through validation and verification of eDiscovery processes and technologies.  We spent time the past two days working to develop a survey of eDiscovery professionals to help us prioritize activities for testing methodology development and the beginning of a checklist for litigation hold notification processes and software.

As data set development is a key component of a good testing program, we also worked to identify additional file types and anomalies to add to the current EDRM Data Set project to aid in that testing.  Though the current data set, based on public domain Enron case data, has proven to be an excellent resource for testing eDiscovery software and processes, there are several test examples that could be added to ensure a more complete test set.  The Testing working group plans to finalize a first cut at additional data set needs in the next few weeks and will likely take an active role in locating or creating those additional test set examples.

Highlights of activities for other working groups in the Mid-Year meeting include:

  • Information Governance Reference Model (IGRM): Working on completing a guide for using the IGRM model as well as use cases and a toolkit for facilitating understanding of the model and how to implement it.
  • Evergreen: Has started work on an educational initiative, coordinating with the IGRM working group.
  • Model Code of Conduct: Has implemented changes resulting from comments to the working draft of the MCoC document and will be posting the final version of the code soon, they will then be implementing a mechanism to track and recognize the organizations that volunteer to adhere to the code.
  • Search: Working on a Sampling and Validation paper and expects to have a working draft ready for comment soon, they also plan to complete a Search Intent Framework and Frequently Asked Questions (FAQ) document by next year’s annual meeting.
  • XML: Has revamped the downloads page for downloading the XML schema, with version 1.1 of the schema currently available and a press release to announce version 2.0 of the schema coming soon.

These highlights are based on my notes, so, EDRM members, if I misstated or left out anything, please feel free to comment.

So, what do you think?  Has EDRM impacted how you manage eDiscovery?  If so, how?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Strategy: "Command" Model of eDiscovery Must Make Way for Collaboration

Last week’s article on Law Technology News summarizes the message put forward by several speakers at the fifth annual Colorado Association of Litigation Support Professionals E-Discovery Summit, held on October 7, 2011. In her article E-Discovery ‘Command’ Culture Must Collapse, Monica Bay discusses the old “command” style of eDiscovery, with a senior partner leading his “troops” like General George Patton – a model that summit speakers agree is “doomed to failure” – and reports on the findings put forward by judges and litigators that the time has come for true collaboration.

The highlights of the summit as far as a collaborative model of eDiscovery include thoughts by U.S. Magistrate Judge Michael Hegarty and Florida attorney William Hamilton, who say the time has come for adversarial, command-style eDiscovery to be replaced by a collaborative model, even with opponents, to result in a more effective discovery process.

Here is a brief summary of their opinions on the future of eDiscovery.

U.S. Magistrate Judge Michael Hegarty: Negotiation and Early Presentation of ESI are Key

Judge Michael Hegarty, of the U.S. District Court (Colorado), believes that minimal court intervention in discovery is best, but that mistakes are often made early on that cause discovery problems with respect to ESI.

  • He remarked on how common it is for litigators to neglect to mention discovery of electronic materials in early conferences, and how “detrimental” that can be to cases.
  • Judge Hegarty noted that a great deal of eDiscovery is unduly complicated because lawyers don’t understand the scope of what it is possible to do with electronic materials. “It’s easy for a party to say, ‘We can’t do that,'” he said, “but it’s hard to imagine that something can’t be done.” He noted the lack of understanding as a key source of friction, and finds that he often has to wade in and order parties to purchase software that will make it possible for them to conduct complete discovery.
  • The bottom line, according to Hegarty, is that the vast majority of cases never go to trial – surprisingly less than one percent of Colorado cases ever see a courtroom – and that’s the way it should be. “We can’t have discovery disputes sit around for months,” he said. It’s important to facilitate a communication process that includes ESI where appropriate in order to settle cases and move them along.

William Hamilton: Support Staff Make Like Possible for Attorneys

William Hamilton is a partner at Quarles and Brady in Tampa, Florida. He is also a professor at the University of Florida’s law school, Levin College, where he teaches “Electronic Discovery and Digital Evidence”. Hamilton is also dean of an online graduate certificate program in eDiscovery at Bryan University, and chair of the advisory board of the Association of Certified E-Discovery Specialists (ACEDS).

  • Hamilton’s speech focused heavily on the role of support staff, the people who “make life possible for attorneys”. He says paralegals and technology staff have a larger role to play in discovery than ever before, but must be careful not to cross over into unauthorized legal practice as they assist litigators.
  • He pointed out a need for change in the very culture of legal practice, where “[h]ierarchy culture disenfranchises everybody”. Bad decision making results from choices made by: “1) habit, 2) reputation, 3) haste, and 4) ‘pure command decisions”, he noted.
  • “Only 10 percent of lawyers ‘get’ e-discovery,” says Hamilton. It’s time for that to change, he says, as a new paradigm for discovery of electronic materials is born.

Learn more about the Colorado Association of Litigation Support Professionals E-Discovery Summit on the Association’s website or read the complete article on Hamilton and Hegarty’s presentations at Law Technology News.

So, what do you think? Is a top-down approach to eDiscovery still viable, or is there a real need for the process to change to a more collaborative and communicative one? Please share any comments you might have or if you’d like to know more about a particular topic.

Our First Birthday! eDiscovery Daily is One Year Old Today!
 

Break out the birthday cake and the noisemakers!  eDiscovery Daily is now a year old!  One year ago today, we launched this blog with the ambitious goal of providing eDiscovery news and analysis every business day.  And, we haven’t missed a day yet!  Knock on wood!

Since we last reported, during our “sixmonthiversary”, we’ve almost doubled viewership (again!) since those first six months, and have increased our subscriber base over 2 1/2 times over that span!  Clearly, there is no shortage of topics to write about regarding eDiscovery and we appreciate your continued interest and support!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, Litigation Support Blog.com, The Electronic Discovery Reading Room, Litigation Support Technology & News, eDiscovery News, InfoGovernance Engagement Area, Ride the Lightning, ABA Journal, ABC's of E-Discovery, Above the Law, EDD: Issues, Law, and Solutions, Law.com and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).

Finally, a quick “thanks” to all who contributed to the blog in the past year, including Jane Gennarelli, Jason Krause and Brad Jenkins (my boss, got to thank him, right?), as well as Melissa Rudy for assisting with several of the posts.

For those of you who have not been following eDiscovery Daily all year (which is most of you), here are some topics and posts you may have missed.  Feel free to check them out!

Case Law:

eDiscovery Daily has published 50 posts related to eDiscovery case decisions and activities over the past year!  Victor Stanley v. Creative Pipe, commonly referred to as the “Victor Stanley” case was followed throughout the year, including our very first post, as well as here, here and here.  More recently, the eDiscovery malpractice case involving McDermott, Will & Emery has captured considerable interest, with recent posts here, here and yesterday’s post here.

Also among the case law posts is Crispin v. Christian Audigier Inc., which seems to reflect growing interest in discoverability of social media data, as this post was the most viewed post of the year on our blog!

Project Management:

Project management in eDiscovery is a popular topic and Jane Gennarelli provided a couple of series of posts to address best practices in this very important area.  The eDiscovery Project Management series was published over the October, November and December months of 2010, while the Managing an eDiscovery Contract Review Team series ran over January, February and into March.

Thought Leaders:

eDiscovery Daily was able to sit down with numerous industry thought leaders, including George Socha, Craig Ball, Tom O’Connor, Tom Gelbmann, Jack Halprin, Deidre Paknad, Jeffrey Brandt, Alon Israely, Jim McGann and Christine Musil to get their “takes” on the state of the industry and where it’s headed.  Thanks to all of those individuals who agreed to speak with us this past year!  We will continue to bring you more perspectives throughout the industry in the coming year.

Search Best Practices:

There were several posts on search best practices, including don’t get “wild” with wildcards, these posts on how to look for misspellings, a case study for using term lists, these posts on handling exception files and this post on the benefits of proximity searching.  We also talked about the “STARR” approach for defensible searching and published this three part series on best practices for sampling and revising searches.

Cloud Computing:

As cloud computing has become a major organizational driving force (overall and as part of eDiscovery), we have addressed several topics related to it, including the importance to be able to load your own data, benefits of software-as-a-service (SaaS) solutions for eDiscovery, the truth about security of SaaS and cloud-based systems, the Forrester and Gartner forecasts for tremendous growth in cloud computing, and even Craig Ball’s thoughts on the benefits of cloud computing for eDiscovery.

And many more posts over the past year on various other topics that are too numerous to mention…

Finally, it’s important to mention that we have yet to archive any old posts, so every post we have ever published is still currently available on this site! (I can see the Information Governance buffs cringing at that statement!)  I believe that we are in the process of building an impressive knowledge base of information spanning all sorts of eDiscovery topics as well as the entire EDRM life cycle.  If there’s an eDiscovery topic you wish to research, chances are that it’s been discussed here at some point.  So, feel free to make eDiscovery Daily one of your first stops for your eDiscovery information needs!

So, what do you think? Do you have any topics that you would like to see covered in more depth? Please share any comments you might have or if you'd like to know more about a particular topic.