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eDiscovery Throwback Thursdays – Circa 1978, We Lived in a World of Paper
 

Back before desktops, laptops and tablets, the business world meant paper.  Lots of paper. And that meant that litigation preparation activities revolved around paper.  Paper documents. Paper logs for tracking activity. Paper coding forms for recording document information. Paper reports.  Our supplies for litigation support activities were pens, pencils, pads of paper, staplers, staple removers, rubber fingers, white-out, post-it notes, boxes, manila file folders, and yes, even Band-Aids (paper cuts were a common work-place ‘injury’).

Although it was a very different world, some things were the same.  In fact, if you look at the EDRM graphic, every phase on the chart also applied to paper.  It was the way things worked back then, if you took the word “Electronic” out of the title and simply called it “Discovery Reference Model”.  Here’s a summary of how the phases of the EDRM applied, prior to the early 1980s:

  • Information Governance:  Businesses managed information and paper.  Employees maintained paper files in filing cabinets in their offices.  Important documents and those of common interest were stored in departmental central files (typically a common area with rows of filing cabinets or shelves of files, maintained by a secretary).  Old documents were boxed up and sent to warehouse facilities for long-term storage.  Indices of the files in those boxes were maintained on paper logs.  Many businesses had document retention policies in place, which included schedules for when documents were to be shredded.
  • Identification:  Responsive documents needed to be located, so that meant identifying custodians, central filing systems and warehouse facilities that were likely to house responsive materials.
  • Preservation:  Potentially responsive paper documents needed to be preserved…  which meant ‘stop shredding’.
  • Collection:  Paper documents were collected.
  • Processing:  Usually, ‘processing’ meant photocopying potentially responsive documents.
  • Review:  Documents were reviewed for responsiveness and privilege.
  • Analysis:  Document content was analyzed, documents were categorized around witnesses and issues, and hot documents were identified.  Most attorneys created a physical binder for each witness, fact and issue in a case, and a single document might be photocopied a number of times, once for each binder into which it was filed.  In the late 1970’s, for some large, ‘bet your company’ cases, documents were coded and document information was loaded into a database. Building a database, however, was by no means commonplace in the late 1970’s.
  • Production:  Documents that were identified as responsive were turned over – in paper form – during discovery.
  • Presentation:  Paper documents were used as exhibits in hearings, depositions and at trial.

Next week, we’ll take a closer look at a typical document collection project circa 1978.

Please let us know if there are eDiscovery topics you’d like to see us cover in eDiscoveryDaily.

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.

Perhaps the Most Recognized Standard in eDiscovery Just Got a Facelift – eDiscovery Trends
 

Probably the most recognized standard in a very unstandardized industry is the Electronic Discovery Reference Model (EDRM) diagram.  For only the second time since it was originally published in 2006, the diagram has been updated.

As announced on Monday, the new Version 3 of the EDRM diagram (see the new diagram above) offers significant updates, primarily to express the importance of information governance (IG) as a key piece of the electronic discovery process.

The leftmost item in the model has been renamed “Information Governance” and its shape has been changed from a rectangle to a circle. These edits better align this diagram with EDRM’s Information Governance Reference Model (IGRM). The adoption of a circle also is meant to show that every well-managed eDiscovery process should start and end with sound information governance, as is reflected by the IGRM diagram here:

 

In addition, the line from Presentation to Information Governance has been widened. This emphasizes that no eDiscovery process is fully completed – no matter at what stage it stops – until it has been looped back to IG.

The final update to the diagram is the increased size of the words “VOLUME” and “RELEVANCE” in the bottom corners of the diagram. This change draws greater attention to the two core objectives driving most eDiscovery projects.

For comparison purposes, here is what the previous version of the diagram looked like, in use for five years (eons in the eDiscovery world!):

 

As the announcement notes, the process of updating the diagram began during a group session at the EDRM Mid-Year Meeting in fall 2013. Members agreed that with the increased attention on IG, an update to the popular model was necessary. Much time and effort were invested in creating a new diagram that accurately reflects the current environment. EDRM would like to acknowledge and thank member Wade Peterson of the firm Bowman and Brooke, LLP, who facilitated the model’s graphic design changes. The new diagram was shared at last month’s EDRM Annual Kick-Off Meeting where members approved the updated model.

The new (Version 3) EDRM diagram is available free of charge and can be downloaded in JPG, EPS and/or PDF formats from the EDRM website here. Use of the diagram is subject to a Creative Commons Attribution 3.0 Unported License, which means it may be shared, remixed, or used commercially as long as attribution is provided by citing “EDRM (edrm.net).”

So, what do you think? Do you use the EDRM diagram?  If so, do you like the updates?  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.

300,000 Visits on eDiscovery Daily! – eDiscovery Milestones

While we haven’t served over 300 billion burgers like McDonald’s, we have provided something to digest each business day for over 43 months.  We’re proud to announce that on Friday, eDiscovery Daily reached the 300,000 visit milestone!  It took us a little over 21 months to reach 100,000 visits and just over 22 months to triple that to 300,000!  On to 500,000!

When we reach key milestones, we like to take a look back at some of the recent stories we’ve covered, so, in case you missed them, here are some recent eDiscovery items of interest from the past six weeks.

After 2,354 Public Comments, One Major Change to the Proposed Federal Rules: By the February 15 deadline for the comment period, no less than 2,354 public comments had been filed regarding the proposed Federal Rules amendments.  Much of the controversy related to Rule 37(e)(1)(B), which included a hotly debated amendment that the court may impose sanctions or order an adverse jury instruction, but only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith,” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.  Since then, Rule 37(e) has been modified, not just once, but twice.

Government Attorneys Have eDiscovery Issues Too: From a confidence standpoint, 73% of respondents feel as confident or more confident in their ability to manage eDiscovery in their cases.  But, 84% of respondents feel somewhat or not at all effective in their agency’s ability to deal with the challenges of eDiscovery and 80% of respondents feel somewhat or not at all confident that if challenged their agency could demonstrate that their ESI was “accurate, accessible, complete and trustworthy.  These and other survey findings are available here.

Cloud Security Fears Diminish With Experience: According to a recent survey of 1,068 companies conducted by RightScale, Inc., concern about cloud security diminish as users gain more experience using cloud-based services.  Learn more about organizations’ cloud habits here.

Daughter’s Facebook Post Voids $80,000 Settlement: As reported a few weeks ago on CNN, the former head of a private preparatory school in Miami lost out an $80,000 discrimination settlement after his daughter boasted about it on Facebook.  That’s why it’s important to think before you hit send.  Even if you’re still in grade school.

New California Proposed Opinion Requires eDiscovery Competence: If a new proposed opinion in California is adopted, attorneys in that state had better be sufficiently skilled in eDiscovery, hire technical consultants or competent counsel that is sufficiently skilled, or decline representation in cases where eDiscovery is required.

Predictive Analytics: It’s Not Just for Review Anymore: One of the most frequently discussed trends in this year’s annual thought leader interviews that we conducted was the application of analytics (including predictive analytics) to Information Governance.  A recent report published in the Richmond Journal of Law & Technology (and discussed here) addresses how analytics can be used to optimize Information Governance.

How Do You Dispose of “Digital Debris”? EDRM Has Answers:  Those answers can be found in a new white paper discussed here.

Also, hackers took Typepad, our platform for hosting the blog, down for a bit.  But, we’re back and better than ever!

Want to get to know some of your litigation support colleagues better?  Leave it to Jane Gennarelli, who has provided profiles here, here, here, here, here and here.

We’ve also had 11 posts about case law, just in the last six weeks (and 296 overall!).  Here is a link to our case law posts.

Every post we have ever published is still available, so the blog has become quite a knowledge base over the last 43+ months.  Sometime this summer, we will publish our 1,000th post!

On behalf of everyone at CloudNine Discovery who has worked on the blog and other publications that have picked up and either linked to or republished our posts, thanks to all of you!  We really appreciate the support!  Now, on to the next topic.  🙂

And, 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.

How Do You Dispose of “Digital Debris”? EDRM Has Answers – eDiscovery Best Practices

In 2012, the Compliance, Governance and Oversight Council (CGOC) released survey results indicating that nearly 70 percent of organizational information has no legal or business value and noted that, for most organizations, information volume doubles every 18-24 months.  Now, EDRM, in collaboration with the CGOC, has released a new white paper to address growing concerns related to the amount and substance of electronic data currently created and stored.

Announced last week, the white paper, titled Disposing of Digital Debris – Information Governance Strategy and Practice in Action, is designed to provide readers with the strategy and practice they need to achieve disposal of their unnecessary electronic information.  Why is this issue such a major problem in organizations today?  Consider the following:

  • Every day, we create 2.5 quintillion bytes of data and rising;
  • Storage locations can include on-site, off-site, cloud and Software as a Service (SaaS) deployments and appear in a variety of hybrid configurations;
  • Social media platforms such as Twitter, Instagram or Facebook combine large volumes of data with high intensity social habits, creating large volumes of potentially sensitive data;
  • IT infrastructure, burdened by the storage and management of excessive data, shoulders high hidden costs that impact its budget and degrade application performance and operations;
  • eDiscovery processes result in the preservation of large amounts of data, including many duplicates that will be re-used as evidence in future litigation if not properly destroyed;
  • New regulatory requirements such as Dodd-Frank and privacy regulations increase the cost and risk of unnecessarily managing data debris.

With these factors contributing to the problem and nearly 70 percent of organizational data having no legal or business value, the need to identify and dispose of digital debris is clear.  To address the issue, the white paper is organized into three sections:

  1. The Problem – Defining and Identifying Digital Debris: This section discusses the tendency of IT departments to “keep everything forever”, provides several examples of digital debris and discusses the advantages of – and roadblocks to – disposal.
  2. The Strategy – Utilizing the Information Governance Reference Model (IGRM) Framework to Define and Design a Successful Information Governance Program: This section reviews the IGRM model (previously covered on this blog here) and covers a three-step approach to effectively begin to reduce both the risk and overhead costs associated with risky retention of digital debris.
  3. The Practice – Implementing the Strategy with Success: This section discusses and provides graphics to illustrate best practices for integrating people, process and technology and the benefit of a holistic approach involving all stakeholders, including Records management, Legal, Line of business users, Privacy and security and IT.

The white paper is available here and can be viewed online or downloaded as a PDF file.

So, what do you think? Does your organization have an effective program in place to eliminate “digital debris”? 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.

George Socha of Socha Consulting LLC – eDiscovery Trends

This is the seventh of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  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; in 2011, 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 significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

I don’t think I saw any obvious new trends.  It was a year of adjustments, rather than anything dramatic.  When something dramatic shows up at LegalTech, usually it is because someone on the provider side has managed to catch a marketing wave and then everyone else is trying to ride that wave.  There was the early case assessment wave, the predictive coding wave, but no new wave yet.  The challenge is predicting what the new wave will be – like trying to predict what will go viral on the web.  Although I am sure there is a lot of speculation about what the next big thing will be, if you look at past projections in the industry we frequently got it wrong.  My guess is that the new wave will be a new wave precisely because it will come from an area we haven’t been paying much attention to.

Nonetheless, here are some thoughts.  One, we are seeing consolidation on the software side of the industry.  In any given area, review for example, we are seeing a limited number of offerings accounting of a substantial portion of the market.  Part of what is changing here is that specific products are not dominating only because of appealing mixes of functions, features, pricing and marketing.  They are establishing their holds by way of ecosystems built around their offerings – add-on tools, services offered in connection with the products, workflows built around the products, and the like.  As anyone who has followed legal technology knows, those who are on top today most likely will not remain there forever, so we can expect to see some of today’s leaders drop down the list as others elbow their way up.

There continues to be much discussion about consolidation on the services side.  There is a limited degree of consolidation to the extent that there are a number of mergers and acquisitions that have taken place, not just over the last year, but over the last few years.  Were those acquired organizations not replaced by others, then we would be having real consolidation.  But, I continue to see new service providers enter the marketplace – at least as rapidly as other providers are acquired, merged or disappear.  So, there is no meaningful consolidation on the service provider side – not if consolidation is defined as fewer players in the market.

Another thing that I’m seeing is the beginning of a change in focus.  Although many of the folks at LegalTech continue to cast production as the ultimate objective of e-discovery, a growing number are taking a newer – or really an older – approach.  They are looking to how one might tease a story out of the data.  This makes a lot of sense, because discovery isn’t intended to be a process unto itself; it’s meant to be part of a larger litigation or dispute resolution process.  The reason that you’re engaging in discovery or, more specifically, in eDiscovery is to help bring a matter to a satisfactory resolution.  I’m seeing more discussions and presentations about how eDiscovery fits into that larger context.  This change in focus could become a trend or it could fizzle out.  I think it ought to become a trend, but we’ll see.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I think the second question is the more important question.  I don’t see the proposed amendments achieving the type of meaningful change that people advocating for them hope to see. I think many people pushing for the changes feel the 2006 rules changes weren’t effective.  If you look at why the 2006 changes have not been effective, I think it’s largely because people haven’t paid attention to them.  If that is the case, what good will changing the rules again accomplish?

I think that a more effective approach would be more robust education for both judges and practitioners, with that education, especially the judicial education, coming from a broader range of educators than has been the case in the past.  If we focus on judicial education, judges should be hearing from the attorneys who are actually doing the work.  They also ought to be hearing from the corporate, governmental and similar people who are the end clients. And, they ought to be hearing from the service and software providers.  As long as education to judges doesn’t include strong and well thought out insight from those three areas, the judges are going to find it difficult to get the education they need to be more effective in implementing the 2006 changes – never mind any changes that may come from the must recent push to amend the rules.

By the way, it would be unfair to lay this problem at the foot of the judiciary.  By and large, judges do and should turn to litigants to better understand the particulars of “where the rubber hits the road” with electronic discovery issues in matters before them.  The litigants themselves, the lawyers, are doing a terrible job of educating the judges because, by and large, they have not attempted to educate themselves about such aspects of eDiscovery as the 2006 rules changes.  If the lawyers appearing before judges haven’t educated themselves about the 2006 changes, why do we think it will be any different with changes in 2014?

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

This is a problem.  I wish I had a quick and easy answer, but I don’t.  Most attorneys don’t know enough about the theory or practice of eDiscovery.  For all the conferences and webinars held on such topics, they don’t seem to reach the bulk of practicing attorneys.  I suspect that the only real answer is time – and a lot of it. .

No matter have good the content delivered at programs such as LegalTech, it is clear that these programs are mostly attended by a small cadre of people who keep running into each other. Look at the first two days at LegalTech; they are like a class reunion.  You see all your old friends, people in the “bubble” who deal with electronic discovery a lot.  It’s our “same old, same old”.  Most of us could spend 2 1/2 days debating one small arcane issue within eDiscovery. There are over 2 million attorneys practicing in the US and they are not in this “bubble” – maybe, at most 2,000 are.

Then you get the third day of LegalTech.  Every year I hear the providers complaining that’s the day when people show up looking for baubles and other little giveaway items.  Providers bemoan that those attendees are not there for substantive content and they’re not there to really understand what the exhibitors have to offer – they just want free stuff to fill their shopping bag.  And, in some way, the real problem is that those are exactly the people we need to reach and those are clearly the people we are not reaching.

How do we reach those folks?  Many ask that question, but so far not have found an effective answer.  eDiscovery needs to “cross the chasm” (as in Geoffrey Moore’s book Crossing the Chasm where you have that big gulf between the early adopters and the rest of the people).  In the larger legal world, we have not crossed the chasm at all when it comes to eDiscovery.  Within the eDiscovery world, you could argue that we’ve crossed the predictive coding chasm, or you could argue that we haven’t, but at least it’s a debate.  I don’t think there is even a debate in the larger legal world as to whether eDiscovery has crossed the chasm, it has not.

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

Several things: We keep pushing EDRM forward.  For the last four or five months we have put out a monthly EDRM update highlighting the many things we are working on – frameworks, standards and resources.  In addition, we have begun the process of making EDRM a 501(c)(6) trade organization.  There are several reasons for doing this, but the main reason is to ensure that EDRM is well positioned so that we can look forward not just to the beginning of our tenth year in April, but to our 20th and our 30th years.

I’m also in the early stages of launching a new group called ABIKOS, a service and technology firm focused on the eDiscovery space.  Our objective is to take discovery back to what it was meant to be – with the focus on bringing matters to a satisfactory resolution

As for Apersee, we’re in the early stages of Apersee version 3.  We have some planning and discussion to do, but we hope in the coming months that you’ll see a greater emphasis on the areas that have actually been of interest to folks, changing the focus to the portions of it in which people have found the greatest value.

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!

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 Conference for Small to Medium Cases – eDiscovery Trends

Last week, I told you about a two-day program being hosted in my hometown of Houston by The Sedona Conference®.  Here is another conference that you can attend no matter where you are, for a very reasonable price!

The Levin College of Law at the University of Florida and EDRM is hosting its second annual electronic discovery conference for the Small and Medium Case this year on March 14.  As the registration page states:

“The University of Florida E-Discovery/EDRM Conference for the Small and Medium Case this year focuses on letting your data tell the winning litigation story. E-discovery is more than responding to production requests. At its heart, e-discovery is locating, parsing, and restructuring the voluminous and diverse case data – emails, texts, word processing docs, social media postings and messages, databases, digital photos, browsing history, computer logs, and more – into a coherent, winning story.”

The co-chairs of the program are William Hamilton, Executive Director, University of Florida E-Discovery Project; Partner, Quarles & Brady LLP; and Provost at Bryan University (other than that, he’s not busy) and George Socha, Co-Founder, EDRM; and President, Socha Consulting LLC (and perennial thought leader interviewee on this blog).

Presenters include attorneys from firms such as Stroock & Stroock & Lavan, Phelps Dunbar, Shook, Hardy & Bacon, Vorys, Sater, Seymour & Pease; vendors such as kCura, Nuix and Nextpoint and iConect and three Florida judges.  The agenda starts at the Levin Advocacy Center at UF Law at 8:00am ET for breakfast and goes through the reception that ends at 6:30pm ET.  Sessions are from 9:00am to 5:20pm ET.  Here’s a tentative agenda and a complete list of presenters.

The conference costs $199 if you’re attending in person.  But, you don’t have to be in Florida to participate.  You can stream the entire conference for only $99.  And, if you’re a full-time law student (or a member of the UF faculty or professional staff), it’s free to attend in person or stream online!  Can’t beat that.

So, what do you think? Do you plan to attend the program? 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.

Tom Gelbmann of Gelbmann & Associates, LLC – eDiscovery Trends

This is the second of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  3. 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, is a consulting practice serving the legal services industry. Tom has an extensive record of working with law firms, corporate counsel and legal services providers as a consultant, advisor, project manager, and has also held the CIO position at two major law firms.  Tom has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; in 2011 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.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

While I didn’t attend the show this year (for the first time in many years), I have been monitoring communications about the show and what took place and have talked with a number of attendees, so I do have some perspectives about it.  Not surprisingly, a major theme this year was the surge in attention to Information Governance.  Information Governance is becoming the area that is grabbing attention within organizations, and rightly so.  We’ve been saying for quite some time in “EDRM-land” that if you can get your electronic house in order, eDiscovery challenges are mitigated and costs can be considerably reduced.

One of the results that you’re starting to see is the appearance of tools to help with that whole Information Governance process of: What do you have?  Who has it?  Where is it?  How do you curate it?  How do you identify what you no longer need to hold onto and effectively get rid of it?  And, when litigation does occur, how do you effectively hone in on the ESI that you need for that particular matter?

Another trend that I’m seeing in general is really two somewhat related trends: Metrics and Project Management.  Metrics has been something that has been slow to catch on for a long time, but I think organizations are now catching on to the fact that if you don’t measure it, you can’t manage it.  The light is coming on for people who are realizing that “yeah, I’d better start tracking these things”.  Metrics have really started to become more mainstream within the industry.  Associated with that is Project Management.  In eDiscovery, you have to have a well-defined, repeatable process to manage the projects effectively.  The more disciplined you are, the better your outcomes will be.  So, metrics and project management are really “coming of age”.

We’re also seeing more and more activity with mobile devices.  You’ve got smart phones, iPads and other tablets, BYOD, etc.  And, that’s really where more and more ESI will be.  I think mobile platforms are starting to take over as far as the means of communication and, in many cases, that’s where the story is.  And, what eDiscovery is all about is finding out the story.  Not that email is going to dry up any time soon, but you’re starting to see that the growth is in mobile and social media.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

I agree.  From what I’m seeing, it may have gotten a little bit better, but not a whole lot.  For change to come, the impetus has to come from clients.  Clients need to be more demanding and validate their outside counsel attorney’s claims of “I know all about eDiscovery” when maybe all they did was attend a CLE.  There has to be proof of their knowledge, but I’m not sure how clients will go about obtaining that proof.  But, they’re the ones paying the bill, so the impetus will have to come from them.  I don’t think it will come from a bar association.

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

I’m very enthused about EDRM this year from a couple of aspects.  One, we’re very excited that we’re moving towards a non-profit model for EDRM.  There’s been a lot of work so far and there’s still a lot of work to do, but I think we’re on track to complete that this year.  I think that’s really going to serve EDRM well for the longer term.  What I mean by that is that it’s been the “George and Tom show” and we realize that it can’t be if it’s going to continue and flourish for the long term.  There’s a lot of energy and a lot of good minds behind this initiative and I’m looking forward to that.

As far as projects are concerned, the Data Set group has been busy further developing the Privacy & Security Risk Reduction Model.  There are some new frameworks coming out and a few other things that we will hopefully be able to announce fairly soon.  The projects are continuing to create and update helpful tools and frameworks which, to some extent, address the education question you asked me earlier.  Information Governance is one of those project teams that is working on some interesting items.  Also, we started in October with a monthly update, so we’re doing a better job of letting people know about all of the accomplishments of EDRM.  In retrospect, we should have been doing that a lot earlier.  You don’t realize on a day-to-day basis what we’re accomplishing, but when we put together a monthly update, we realize that we did accomplish a lot.  Our 2013 end of year update shows that there were several things we accomplished in 2013 that were valuable to the industry.  So, the future is bright for EDRM from a variety of perspectives.

With regard to Apersee, we’re still working to prove to providers that there is value in maintaining their profiles about their products and services.  We understand that it takes effort to do so and we’re still trying to demonstrate the value to them.  The more providers put into it, the more valuable it becomes to consumers.  The Apersee Special Requests are a bright spot. When we distribute Apersee special requests from the consumer, looking for a specific complex, time-sensitive service, we get dozens of responses from providers within minutes to a couple of hours.  Generally, the consumer tells us within a day or less “Stop, we’ve got enough responses, this is great.”  So, the effectiveness of the Apersee special request tells us that there is a need to be fulfilled.  We’ve been told by consumers that it’s very valuable service, so we’re excited about that.

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!

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.

EDRM Updates Privacy & Security Risk Reduction Model – eDiscovery Best Practices

The Electronic Discovery Reference Model (EDRM) continues to pile up the accomplishments. In addition to announcing a transition to nonprofit status by May 2014, since the May annual meeting, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback and EDRM also published new Collection Standards for collecting electronically stored information (ESI).  Now, EDRM is making updates to earlier accomplishments from just five months ago.

As they announced last week, EDRM announced the reintroduction and refinement of its Privacy & Security Risk Reduction Model (PSRRM). Initially introduced last September by EDRM’s Data Set group (and covered on this blog here), the model provides a process for reducing the volume of private, protected and risky data by using a series of steps applied in sequence as part of the information management, identification, preservation and collection phases of the Electronic Discovery Reference Model.

The PSRRM model is used prior to producing or exporting data containing risky information such as privileged or proprietary information. The middle steps are cyclical and are repeated until the amount of private material is reduced to a desirable amount. The private data is finally quarantined in the final step before the remaining information is produced.

Recent high profile data breaches at Target and Neiman Marcus are prime examples to illustrate that high risk data can cause significant trouble and exposure for organizations today.  As their press release notes, EDRM has revised the PSRRM to include industry feedback and real-world experiences using the model in data remediation and eDiscovery projects to help companies address this exposure in an organized and systematic manner.

The current resource page for the PSRRM model is located here.

So, what do you think?  How do you handle security of your organization’s sensitive data?  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.

ESI Cost Budget Calculator – eDiscovery Best Practices

Last month, we discussed budget calculators available from the Metrics section of the Electronic Discovery Reference Model (EDRM) web site.  So far, we have reviewed three budget calculators, the E-Discovery Cost Estimator for Processing and Review, the Doc Review Cost Calculator and the EDRM UTBMS eDiscovery Code Set Calculator. Here is the fourth and final calculator (currently) on the site, the ESI Cost Budget Calculator, provided by Browning Marean, DLA Piper law firm.

As described on the site, this budget calculator estimates costs by project phase. The phases are:

  • ESI Collection
  • ESI Processing
  • Paper Collection and Processing
  • Document Review
  • Early Data Assessment
  • Phase 1 Review
  • Phase 2 Review
  • Production
  • Privilege Review
  • Review of Opposition’s Production
  • Hosting Costs

This single-sheet Excel cost calculator is nice and straightforward.  It covers collection through production, even including a section for review of your opponent’s production and hosting costs (which are becoming more commonplace as more organizations choose cloud-based solutions for their eDiscovery needs).  Two things that I particularly like is that it provides a sequential “line” column to make it easier to refer to a particular line item and also a comments/assumptions column for documenting (what else?) your comments and assumptions.  I also like that all of the numbers are in one column (column C), making it easier to follow the cost computations.  The sheet also includes a header at the top with a place to enter the matter name and date of the estimate.

Suggestions for improvement:

  • As the site indicates, cost calculations, by phase and in total, are shown in the yellow cells.  However, there are several other calculated cells that are in white (the same color as the enterable cells).  It would be easier and clearer to identify the enterable cells if all of the calculated cells were in a different color to differentiate them from the enterable cells (maybe a third color to differentiate them from the cost calculations cells);
  • Protect the sheet and lock down the computed cells (at least in the main sheet) to avoid accidental overwriting of calculations (with the ability to unprotect the sheet if a formula requires tweaking);
  • Tie a pie chart to the numbers to represent the portion of each phase to the total eDiscovery cost for the project.

This workbook would certainly be useful for tracking eDiscovery costs from collection to production, using the metrics appropriate for each section (e.g., custodians and GB for collection, total files and review rate for the review phases, etc.).  It would also be great to update as the phases progress to continue to refine your project estimate.  You can download this calculator individually or a zip file containing all four calculators here.

So, what do you think?  How do you estimate eDiscovery costs?   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.

EDRM UTBMS eDiscovery Code Set Calculator – eDiscovery Best Practices

Last month, we discussed budget calculators available from the Metrics section of the Electronic Discovery Reference Model (EDRM) web site.  So far, we have reviewed two of the budget calculators, beginning with the E-Discovery Cost Estimator for Processing and Review workbook provided by Julie Brown at Vorys law firm and the Doc Review Cost Calculator provided by an eDiscovery vendor.  Today, we will continue our review of the calculators with a look at the EDRM UTBMS eDiscovery Code Set Calculator provided by Browning Marean, DLA Piper law firm; and George Socha, Socha Consulting (and, of course, co-founder of EDRM).

As described on the site, this budget calculator uses the ABA’s Uniform Task Based Management System (UTBMS) eDiscovery codes as a starting point for calculating estimated eDiscovery expenses. Users enter anticipated average hour rates for:

  • Partners
  • Associates
  • Paralegals
  • Contract reviewers
  • In-house resources
  • Vendors

For each relevant L600-series UTMBS code, users enter (a) total estimated hours for each relevant group and (b) total estimated associated disbursements.  The spreadsheet then displays:

  • A summary of the estimated costs
  • Details of the estimated costs for each combination, such as estimated costs of time partners spend planning discovery (Partner and L601)
  • Totals by type of person, such as Partner
  • Totals by individual UTMBS code, such as L601
  • Totals by higher level UTBMS codes, such as L600

This spreadsheet is quite clear and easy to use.  It provides a summary section at the top of the sheet for the top level codes from L600 (Identification) to L690 (Project Management), which are fed by the enterable cells to the left and below.  All of the enterable cells are in yellow to make it easy to identify where the data needs to be entered (the hourly rates for each of the positions are top left and the total estimated hours are enterable for each position and subcode).

Based on the entered rates and hours within each subcode, costs are calculated and displayed in green for each position within each subcode, as well as a total for each subcode which rolls up to a total for the top level code displayed in blue at the top of the sheet.  There is also a column to enter associated disbursements for each code and subcode to reflect those disbursements that don’t tie to an hourly rate.  The sheet is protected to avoid inadvertent overwriting of formulas, but there is no password so that the user can tweak formulas if necessary.

This workbook would certainly be useful for tracking eDiscovery costs according to the UTBMS codes, especially for hourly billed activities.  It’s not a spreadsheet for estimating costs based on estimated data volumes but rather estimated hours spent by key staff on each phase of discovery.  You can download this calculator individually or a zip file containing all four calculators here.

So, what do you think?  How do you estimate eDiscovery costs?   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.