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Electronic Discovery

Plaintiff’s Motion to Quash Subpoena of Text Messages Granted by Court: eDiscovery Case Law

In Burdette v. Panola County, No. 3:13CV286-MPM-SAA (N.D. Miss. February 4, 2015), Mississippi Magistrate Judge S. Allan Alexander granted the plaintiff’s Motion to Quash Subpoena where the defendant subpoenaed the plaintiff’s text messages and call log records from his mobile provider.

Case Background

In this employment case, the defendant issued a subpoena to AT&T Subpoena Compliance Center for production of “[a]ny and all calls and text messages made from and received from [the plaintiff’s phone number] in the custody and control of AT&T for the dates of April 23, 2012, beginning 1:00 p.m. through May 27, 2012.” The defendants stated that the subpoena was necessary because plaintiff had avoided producing ESI that is relevant to the claims at issue and failed to maintain either the phone upon which he recorded a conversation the day of his discharge or the computer to which he later transferred the phone recording.

The plaintiff contended that the subpoena was overly broad, harassing, irrelevant, and potentially sought information protected by the attorney client privilege, as the requested text messages would undoubtedly include texts to and from his family members and possibly to and from his attorney. The plaintiff also noted that the period of time for which the text messages and calls were sought extended twenty days after the plaintiff was terminated.

Judge’s Opinion

Judge Alexander noted that the defendants “have offered no explanation for why these text messages and phone calls are relevant and has not agreed to limit the production of them in any way”. Despite the fact that the plaintiff failed to maintain the phone and computer, Judge Alexander determined that “neither of those two facts support the request for all of plaintiff’s text messages and phone calls before and for three weeks after his termination. If defendants desire to seek a spoliation instruction, they are permitted to do so, but defendants have failed to convince the undersigned that production of text messages and phone call logs will resolve any issue relating to the recorded conversation. The court will not permit irrelevant discovery that appears to be more harassing than productive.”

“Weighing the factors set out by the Fifth Circuit for quashing a subpoena, the relevance factor clearly weighs against production of the phone records”, stated Judge Alexander, finding that “the breadth of the request is entirely too wide even if a valid reason for the request had been established.” As a result, he granted the plaintiff’s request to quash the defendant’s subpoena.

So, what do you think? Was the defendants’ request overbroad? Or did they have a valid reason for the subpoena, given that the plaintiff failed to produce relevant ESI? 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. eDiscoveryDaily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.

When Blogging Interferes with Your Day Job, Which Do You Pick?: eDiscovery Best Practices

Though I write a daily blog, believe it or not, I do have a “day job”. I’m Vice President of Professional Services at CloudNine, and I also coordinate our marketing and software rollouts. Sometimes, I’m able to write my blog post during the work day; other times, I have to wait until the evening to do so, possibly as late as 8 or 9 PM, depending on my workload for that day. When blogging interferes with your “day job”, it can be difficult to do both.

I’m not sure that this was directly stated, but this conflict between day job and blogging may have been a factor in the discontinuation of IT-Lex last year and the scaling back of Ralph Losey’s excellent e-Discovery Team® blog from weekly to monthly a few weeks ago. It’s not always easy to keep a blog going when you have a busy career too.

In her excellent blog Litigation Support Guru, Amy Bowser-Rollins (see our profile of her from last year here) wrestled with that very dilemma. As she noted in her most recent post I Quit My Litigation Support Job, she has juggled four “jobs”, including: 1) Working full-time in a litigation support role at a law firm in Washington DC, 2) Working in a management position for a non-profit called Women in eDiscovery, 3) Teaching several courses in the Georgetown University Paralegal Studies program, and 4) Mentoring individuals interested in a litigation support career through her Litigation Support Guru blog.

As you can imagine, it was a struggle for Amy to do it all. Anyone can tell you that litigation support is a full-time job that can, at times, involve evening and weekend work. Not to mention that she was also dealing with a three hour daily commute to and from Washington DC. Though she noted that her work on the blog was most fulfilling (“I love helping others realize their dreams. I love mentoring others.”), her day job (and commute) was cutting into time to mentor others.

So, she quit her day job.

After having taken a sabbatical back in 2005, Amy decided to take another one now from her litigation support job. More power to her and, hopefully, that means more excellent blog posts to come!

As for me, last week was especially busy. I provided consulting assistance in different projects to clients ranging from search best practices to retrieve particular documents to review, de-duplication of potentially privileged documents in order to prepare a privilege log and identification of previously reviewed and classified documents in one collection to exclude them from review in another collection (to save review costs and ensure consistency). I managed to do all of that in four days, as I was off Friday for my birthday. 🙂 It’s not always easy, though, to attend to my day job and keep up with the blog.

When my boss at CloudNine approached me with a completed design and URL for our blog (which, of course, was called eDiscovery Daily), I initially balked at the idea of doing a daily blog. As you can imagine, I was a bit daunted by the effort involved of having to identify and write about different topics four to five days per week. Ultimately, nearly four and a half years later, it has proven to be personally rewarding for me as it forces me to keep up to date on trends and key case law in the industry (efforts which would otherwise go languishing when client projects heat up). And, my “day job” has also enabled me to share some of my experiences to you through best practices that I’ve learned through actual experiences with clients. I hope you have found our blog to be as useful as I have found it rewarding to write and I plan to continue to write it (and keep my “day job”) as long as I can.

I’m not going to go so far as to say “hug a blogger today”, but I think it’s important to recognize that most of them do this in their spare time, aside from their “day job”. I, for one, am grateful to all that do so in legal technology.

So, what do you think? Which blogs do you read? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.

Court Upholds Review of Taxable Costs by Clerk, Awards over $57,000: eDiscovery Case Law

In Comprehensive Addiction Treatment Center, Inc. v. Leslea, No. 11-cv-03417-CMA-MJW (D. Colo. Feb. 13, 2015), Colorado District Judge Christine M. Arguello denied the plaintiffs’ motion to review Clerk’s Taxing of Costs Under F.R.C.P. 54(D)(1), upholding the award by the Clerk of the Court of $57,873.61 in taxable costs.

Case Background

On January 31, 2013, the defendants’ Motion to Dismiss on qualified immunity and for lack of subject matter jurisdiction was granted by the court. After prevailing on summary judgment, the defendants filed a Proposed Bill of Costs seeking costs totaling $58,037.01. At a telephonic hearing, the District Court Clerk awarded $57,873.61 of the requested taxable costs. On March 5, 2014, the plaintiffs filed an instant Motion seeking a review of the Clerk’s determination concerning the taxed amount of $55,649.98 for the defendants to contract with a private consulting company, Cyopsis, to retrieve and convert ESI into a retrievable format to produce information that was requested by the plaintiffs.

The plaintiffs contended that the Court should reduce the taxing of costs entered by the Clerk from $57,873.61 to $2,387.03 because retrieving, restoring and converting data does not constitute “copying” under 28 U.S.C. § 1920(4). The defendants disagreed, arguing that “[p]roduction costs in collecting, scanning, reviewing, and preparing documents are necessary expenditures that are made for the purpose of advancing the discovery phase of the case and as such, are taxable.”

Judge’s Opinion

Judge Arguello stated that “Federal Rule of Civil Procedure 54 provides that ‘[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.’” She also pointed out that “courts have recognized that 28 U.S.C. § 1920(4) includes e-discovery related costs”, citing three cases.

As for this case, Judge Arguello observed that “[b]ecause of the complexities and time-intensive efforts anticipated in responding to Plaintiffs’ requests for documents, the parties entered into three consecutive tolling agreements” and also that “Defendants wrote to Plaintiffs’ counsel three times describing the difficulties and complexities encountered in retrieving and restoring the ESI”. “At no time during this period did Plaintiffs initiate discussion aimed at limiting the scope of their request for information or take other measures to limit the costs of the endeavor”, she noted, indicating that based on the ESI production, “Plaintiffs filed a new Complaint including several allegations not included in the version filed in 2010”.

As a result, Judge Arguello found that the defendants’ costs related to the ESI are expenses enumerated in 28 U.S.C. § 1920(4). She found that “The ESI expenses were not merely for the convenience of the parties nor were they materials produced solely for discovery as Plaintiffs filed a new Complaint that included information gleaned from the ESI. Thus, the ESI expenses were reasonably necessary for use in the case. Indeed, Plaintiffs were aware of the monumental effort to retrieve and convert the data into a retrievable format in response to their Interrogatories and Requests for Production. The costs incurred by Defendants, the prevailing party, in responding to Plaintiffs’ requests are expenses that are shifted to Plaintiffs, the losing party. Indeed, Plaintiffs own litigation choices and aggressive course of discovery necessarily resulted in ‘heightened’ defense costs.”

Therefore, Judge Arguello denied the plaintiffs’ motion and upheld the award by the Clerk of the Court of $57,873.61 in taxable costs.

It’s not exactly a pot o’ gold, but it’s nothing to sneeze at either. 🙂 Happy St. Patrick’s Day!

So, what do you think? Is recovery of eDiscovery costs under 28 U.S.C. § 1920(4) too open to interpretation? 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. eDiscoveryDaily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.

A New Processing Standards Guide from EDRM: eDiscovery Best Practices

When dealing with electronic data, some attorneys think that since the files are already electronic, how hard can they be to load? Unfortunately, it’s not as simple as that. To be useable in discovery, electronic files need to be processed and good processing requires a sound process. Leave it to EDRM to offer a new standards guide to establish a set of basic standards for processing various types of data for eDiscovery.

Let’s face it, at some point in nearly every eDiscovery life cycle, it is necessary to “process” data from an electronic storage device into a database so the data may be used in subsequent e-discovery steps. So, last Tuesday, EDRM released its new “software agnostic”* EDRM Data Processing Standards Guide, which is designed to help eDiscovery professionals ask the right questions and be knowledgeable about the tools available (*while the guide is meant to be software-agnostic, it does draw heavily on examples from kCura’s system, Relativity).

Written by experienced practitioners, the guide addresses considerations and concerns that arise when one processes data from an electronic storage device into an eDiscovery database and is intended to be a resource for anyone who would like to use the processing stage of eDiscovery to streamline review and improve analysis of information in the database. It covers everything from virus protection, container files, deduplication and de-NISTing to HASH values, time zone considerations, passwords and exception handling. It also identifies key metadata fields necessary for searching, sorting and production purposes and a basic glossary of terms. And, as processing has numerous potential permutations, the guide identifies some of the topics that aren’t yet covered in the “Potential Future Topics” section, such as language identification, EML files (Outlook Express) and processing Lotus Notes email.

The draft guide is available here and is open for public comment until tomorrow, March 17 (extra credit for submitting your comments in green ink – just kidding!), after which time input will be reviewed and considered for incorporation before the new guide is finalized. If you’re used to simply turning over your electronic files to a vendor for processing and want to know what that vendor is actually doing with them, it’s a good guide to help you understand the steps involved in making your data usable for review.

So, what do you think? Have you read the guide yet? If so, did you find it useful? 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. eDiscoveryDaily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.

Organizations are Increasing Their Investment in Legal Data Analytics, According to New Survey: eDiscovery Trends

According to a new survey of more than 125 legal technology professionals released by Huron Legal earlier this week, 68% of respondents expect their organizations’ investment in legal data analytics to increase in the next two years.

As noted in their announcement, there are, however, several challenges to effectively implement legal data analytics identified by the respondents, including:

  • Securing buy-in from senior leadership on the value of analytics (37% of respondents identified as the biggest challenge);
  • Quality of data (22%);
  • Cost of implementing data analytics effectively (23%),
  • Lack of accessible data (9%);
  • Threat to the practice of law (9%).

Also, 64% of respondents said that the legal industry is behind other industries when it comes to data analytics.

When asked about the one or more areas where data analytics is currently being applied in their organization, respondents replied as follows:

  • 64% of respondents indicated that data analytics is currently being applied in eDiscovery;
  • A third (33%) noted litigation management (i.e. case strategy, staffing);
  • Nearly a quarter (24%) indicated law department management (i.e., matter budgeting, legal project management);
  • Almost a third (29%) selected information governance;
  • 17% pointed to outside counsel/law firm management (i.e., staffing, etc.);
  • 16% noted rate/fee negotiation;
  • 10% stated M&A evaluation.

Only about 10% of respondents said that data analytics is not being applied at all within their organization. Not surprisingly, 45% of respondents identified cost management and savings as the biggest benefit of data analytics in the legal industry.

“It is clear that the legal industry is starting to recognize the power of data analytics, as evidenced by the burgeoning use of emerging legal technology and the willingness to increase investment in analytics,” said Nathalie Hofman, managing director at Huron Legal. “However, in order to realize analytics’ full potential, legal professionals at all levels must be educated about how to best to use them. Analytics can inform decisions in a number of areas, leading to greater efficiency and cost effectiveness.”

No survey would be complete without a handy-dandy infographic to summarize the results, click here to view the infographic for this survey by Huron Legal.

So, what do you think? Do these results reflect a promising trend? Or do they reflect that we still have a long way to go? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.

Judge Peck Wades Back into the TAR Pits with ‘Da Silva Moore Revisited’: eDiscovery Case Law

In Rio Tinto Plc v. Vale S.A., 14 Civ. 3042 (RMB)(AJP) (S.D.N.Y. Mar. 2, 2015), New York Magistrate Judge Andrew J. Peck approved the proposed protocol for technology assisted review (TAR) presented by the parties, but made it clear to note that “the Court’s approval ‘does not mean. . . that the exact ESI protocol approved here will be appropriate in all [or any] future cases that utilize [TAR].’”

Judge’s Opinion

Judge Peck began by stating that it had been “three years since my February 24, 2012 decision in Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182 (S.D.N.Y. 2012)” (see our original post about that case here), where he stated:

“This judicial opinion now recognizes that computer-assisted review [i.e., TAR] is an acceptable way to search for relevant ESI in appropriate cases.”

Judge Peck then went on to state that “[i]n the three years since Da Silva Moore, the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” (Here are links to cases we’ve covered related to TAR in the last three years). He also referenced the Dynamo Holdings case from last year, calling it “instructive” in its approval of TAR, noting that the tax court ruled that “courts leave it to the parties to decide how best to respond to discovery requests”.

According to Judge Peck, the TAR issue still to be addressed overall “is how transparent and cooperative the parties need to be with respect to the seed or training set(s)”, commenting that “where the parties do not agree to transparency, the decisions are split and the debate in the discovery literature is robust”. While observing that the court “need not rule on the need for seed set transparency in this case, because the parties agreed to a protocol that discloses all non-privileged documents in the control sets”, Judge Peck stated:

“One point must be stressed — it is inappropriate to hold TAR to a higher standard than keywords or manual review. Doing so discourages parties from using TAR for fear of spending more in motion practice than the savings from using TAR for review.”

While approving the parties’ TAR protocol, Judge Peck indicated that he wrote this opinion, “rather than merely signing the parties’ stipulated TAR protocol, because of the interest within the ediscovery community about TAR cases and protocols.” And, he referenced Da Silva Moore once more, stating “the Court’s approval ‘does not mean. . . that the exact ESI protocol approved here will be appropriate in all [or any] future cases that utilize [TAR]. Nor does this Opinion endorse any vendor . . ., nor any particular [TAR] tool.’”

So, what do you think? How transparent should the technology assisted review process be? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.

Craig Ball of Craig D. Ball, P.C.: eDiscovery Trends

This is the eighth (and final) of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them most of the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Craig Ball. A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 1,500 presentations and papers. Craig’s articles on forensic technology and electronic discovery frequently appear in the national media, and he currentlyblogs on those topics at ballinyourcourt.com.

What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

My impression is that the crowd is down. I’m not sure whether that was the challenging travel conditions (many people, daunted by winter storms and flight diversions, may have headed home), but looking at today’s keynote address, it wasn’t a full house. Still, it was a quality house. Fewer browsers isn’t bad for the exhibitors when the quality of leads improve. The folks that come to grab tchotchkes aren’t necessarily the folk vendors want to engage.

This is the first time in quite some time that I was able to peruse 100% of the exhibitors’ booths. That ALM wasn’t using the top floor this year suggests that, the number of exhibitors must be down, too. I’d attribute that to marketplace consolidation and to the ranks of vendors who’ve decamped to other venues, believing they can glean the benefits of being at LegalTech without exhibiting. I find myself in meetings at the Warwick Hotel as often as at the Hilton.

LegalTech has grown more important through the disappearance of other venues of this scale and breadth.  LTNY dominates as the one place where you see everybody and everything in the marketplace. But, that’s a cyclic phenomenon and competition will return. ILTA has grown in scale and import, and it serves as an influential alternative venue for kicking tires. It’s probably as important to be at ILTA as it is to be here in New York. The West Coast LegalTech has lost steam, but should be energized by its move to the Bay Area. The biggest challenger to these big tent events is improved communication tools. Screen sharing has made it as easy to be at your desk and see a high quality demo as fight the crowd.

There was also a different vibe, a “changing of the guard” feel. Underscoring the late Browning Marean’s absence, the temporary shuttering of the Hilton lobby bar was metaphorical, as was Monica Bay’s retirement. It signals the handing over of the reins to a new generation of disruptive competitors, and of established players seeking to reinvent and present themselves in fresh ways. That’s exciting. I’ve attended LegalTech since the latest technology was fire (we called it “Environmental Governance”), and I’m seeing many new faces, people I don’t recognize when I scan the cocktail lounge. That’s renewal: positive, but bittersweet.

As for the educational sessions, I’m biased as a member of the educational advisory board that plans the curriculum; but, the sessions I attended were first rate. The presenters did their homework; panelists weren’t “winging it.” The content was substantive and engaging. Has electronic discovery eaten the show? Sure, but many other offerings are here. They just don’t sponsor as many educational tracks, buy the big booths or host the prominent events. I know that some lament the extent to which electronic discovery has taken over; but, that’s a function of demand. Content follows the money.

Having said that, I feel that there’s a sense of ennui that pervades the industry. Many are tired of eDiscovery, manifested as efforts to shift the conversation to other things. When I plan eDiscovery programs, there’s a push to bring in privacy and cybersecurity or blow the topic up into information governance. All of those are valuable; but, they aren’t the core curriculum of eDiscovery, and we haven’t yet mastered the fundamentals of electronic discovery. Those hot topics serve to displace education still needed and topics more central to electronic discovery. We are still laying the foundation.

Trend-wise,we’re always a bit late to the party in eDiscovery. We aren’t doing enough to acknowledge that, like Elvis, much of the information we must address in discovery has left the building. It’s gone mobile, and we lack the scalable processes and tools to effectively and efficiently preserve and process mobile data. I’m hoping that the things I’m saying to vendors (and that I hope others are saying as well) will get them to look toward the hill, or even over it. Mobile and cloud are not “coming.” They’re here in a big way, and they’re not going away or becoming less important.

Finally, if it were my call, I’d swap the dates for the east and west events, giving three years notice. But, a wintry convention probably costs much less, so fuggedaboudit.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I am comfortable with the end result and think there is a virtual certainty that the amendments will sail through Congress with no more than a tweak or two, becoming our rules in December. With respect to their impact on preservation (which was the principal impetus behind the efforts to change the rules), it will make absolutely no difference. I’ve been asking people what they will not retain or do once the amendments take hold that they weren’t saving or doing before, and I’ve not had a single person articulate the savings they expect to realize on the strength of Rule 37(e). That said, I think 37(e) significantly immunizes negligent spoliation from significant sanctions. If there was going to be a 37(e)–and the millions spent by businesses lobbying for same sealed that deal–then Judge Grimm and others crafted the best 37(e) we could hope for.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

I don’t think enough are struggling with it. I think many have simply chosen to move on, whether they get it or not. They’re tired of eDiscovery, and they’re changing the conversation. That was my point earlier about, “Oh, you want to have an eDiscovery conference? Talk about cybersecurity or privacy instead.” They hate having to deal with the nitty-gritty of eDiscovery competency, like preservation and forms for production. Most still view “legal hold” as a document instead of a process. On the other hand, much of eDiscovery has been enshrined as a repeatable process. It may be a lousy process, but look how well it replicates! That’s a bit cynical. I do see incremental improvement and I see it in a variety of areas.

Those managing discovery in their organizations have gotten savvier and more refined in their thinking. Many organizations are in capable hands. Others have gotten what they wanted, but not what they need. By that I mean they acquired buzzwords, a few rules of thumb and a checklists to trot out without much understanding of what they are doing.

As much as I criticize lawyers for their intransigence in seeking out information about electronic discovery and refusing to master the barest fundamentals of information technology, as a profession, we have done a poor job of making materials available that are engaging and accessible. Even those lawyers willing to put effort into learning don’t know where to go for “eDiscovery 101, let alone 201 and 301.” Where are the primers and training tools? Other education supplies a pattern, a path for learning that we know how to follow. But, for electronic discovery, we’ve never had that path set before us. We’re starting to build curriculums in electronic discovery in a variety of law schools and more law schools are offering electronic discovery courses. Some of which are quite impressive and some of which are rather ministerial and give short shrift to the all-important “e” that makes eDiscovery different.

But, I’m encouraged that the coming year and the year after are going to be threshold intervals for leaps forward that we can take some pride in with regard to generating educational resources. Things are happening. Judge John Facciola’s retirement also fuels that “end of an era”, “handing over the reins” sense I mentioned; but it frees Judge Facciola’s up to concentrate more on teaching and leadership. I’m encouraged by that, and I look forward to working with him and following him in a variety of endeavors.

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

The coming year, I hope to focus on pulling together a group of educators to develop a core curriculum for electronic discovery – at the law school level, a curriculum that can be taught by those whose strength is the law and one that can be taught by those whose strength extend into the technology. I see a need to rethink professional development. We keep repeating in CLE much of the same stuff over and over again. We need to educate lawyers and litigation support, paralegals, legal assistants, IT – the people “in the trenches” – opening a path to meaningful skills and accreditation (not just a certificate and some letters to stick after one’s name). We need to offer the means to acquire genuine expertise and competence. So, I will concentrate on working with others to develop materials that can be freely circulated to law students and used by law professors, such as distilled case law, discussion questions, workbooks, tools, hands-on exercises and all the rest that serve to help schools offer practical skills courses and new lawyers gain talents that make them more valuable to firms and clients.

As I look around, I’m impressed at how much difference an individual can make in this young field. People like Richard Braman, Browning Marean, George Socha, Bill Hamilton, Tom Allman, Ariana Tadler, the rock star eDiscovery judges and others inspire me to keep on the oars and beat on, boats against the current, and unlike Gatsby, bearing ceaselessly toward tomorrow.

Thanks, Craig, 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.

Need Help on Handling Social Media, Cloud and Mobile Data Sources? Check Out this Conference: eDiscovery Trends

Last week, we announced that eDiscoveryDaily is a new Education partner of EDRM. University of Florida Levin College of Law is another EDRM Education partner and will be teaming up with EDRM to host the 3rd Annual UFLaw and EDRM Electronic Discovery Conference on Friday, March 27.

The conference is focusing its attention this year on litigation involving social media, the cloud, and mobile devices. Data from a multitude of social platforms and mobile devices (such as your automobile, Fitbit, iPhone, smart TV and even your thermostat) capture our movements, our moods, and the everyday moments of our lives. That data is stored everywhere – on our devices, at remote locations, and in the cloud. This critical information can make or break any litigation and investigation.

The event will take place in Holland Hall at the University of Florida, Levin College of Law, and will be streamed online as well. It runs from 8:00 am to 6:00 pm Eastern time. George Socha, co-founder of EDRM and William Hamilton, Partner, Quarles & Brady are co-chairs and there are a number of knowledgeable presenters, including Craig Ball and Monica Bay. 6.5 general CLE credits are available for attendees. Here’s a link to the agenda.

The entire day-long conference is available online for $99, or in person for $199. EDRM members receive a discounted rate of $45 for online or $99 for in person attendance (select “Certified Conference Friends” at time of registration). The Conference is completely free to all employees of federal and state governmental agencies, judges and judicial staff, students, and academics. Click here to register.

So, what do you think? Do you feel that you have a handle on social media, the cloud, and mobile devices? If not, are you attending the conference? 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. eDiscoveryDaily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.

Ralph Losey of Jackson Lewis, LLP: eDiscovery Trends

This is the seventh of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Ralph Losey. Ralph is an attorney in private practice with the law firm of Jackson Lewis, LLP, where he is a Shareholder and the firm’s National e-Discovery Counsel. Ralph is also a prolific author of eDiscovery books and articles, the principal author and publisher of the popular e-Discovery Team® Blog, founder and owner of an online training program, e-Discovery Team Training, with attorney and technical students all over the world, founder of the new Electronic Discovery Best Practices (EDBP) lawyer-centric work flow model. Ralph is also the publisher of LegalSearchScience.com and PreSuit.com on predictive coding methods and applications.

What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

It seems to me that attendance is up. I got here a little late, but I was only delayed two hours – I know that some were delayed as much as two days. Despite that, I think it was a good turnout. When I was walking the floor, there seemed to be crowds of people, so I think it was pretty well attended this year.

The programming this year had a slightly different orientation. I had a presentation on predictive coding (which I’ve presented on predictive coding topics for the last four years or so) and, in past years, it seemed that my presentation would be one of a dozen or more at the show whereas this year, it seemed like there were only three or four presentations on predictive coding. So, maybe the “fad” part of predictive coding is over and more people are into the topic in depth. The presentation that we gave was more on an advanced level – we didn’t discuss whether or not you should use it or review the basics; instead, we went into a deeper level. And that was fun for me to do.

Instead, I think the hot item this year was information governance, which is somewhat of a general “catch-all”. Then, the other two things that I saw in the presentations and in the “buzz” on the floor when talking to people were two things that I’m very concerned about as well: security (cybersecurity is the word I prefer to use) and privacy. I think those are two long-term issues that have been brewing and are now coming to the forefront where lawyers are realizing that these are important issues that are coming out of technology.

As for whether they should consider moving the show, well, I’m from Florida and I love to see snow every now and then – it’s a real rarity where I live. I left a 72 degree paradise to arrive here and it was 18 degrees. In spite of that, I think the show should remain in New York at this time of year and I fully believe that this is the event of the year. If anything, I think it’s growing in importance. For me, the older I get, the more I try to limit my travel and appearances and this would be one that I would not take off my list of must attend events, if for no other reason than because everyone is here. I love walking around and running into judges and old friends, so that is one of the reasons that I think it is the premier event of the year.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I don’t think there will be any issues passing the rules amendments through Congress, I think they will sail through and be part of our rules soon enough. I don’t really feel that the rules changes will make that much difference. I just recently litigated the existing Rule 37(e) and in my memos, I quoted the new Rule 37(e). At the end of the day, it didn’t really make any difference in the court’s adjudication whether it was the old rule or the new rule. So, I still continue to think that the changes are a positive move, but I don’t think they will be a savior or “cure-all” that people might hope. In that sense, I may be a little pessimistic about it. I’ve seen rules changes before, such as ’06.

This leads to a slightly different topic, but I ultimately feel that all these (as I call them) cosmetic rules changes will fail. I think that, in maybe ten years, there is going to be a major overhaul. I think the rules committee and the federal judges will realize that you can’t just do these periodic slight “tweak” of the rules. I think they will eventually consider and, possibly enact, a complete overhaul or our rules and procedures – focused on discovery. I don’t think discovery is working and I don’t think the discovery rules are really working and I don’t think that they can be patched up. They’ve been trying to patch up discovery for 35 years now with various rules changes and they’ve never worked. I have no reason to believe that 2015 will be any different than 1989 or before that. I think that they’re going to be forced to take drastic measures. That’s my prediction – we’ll see.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

In my world (which is a fairly large world, but it’s all in employment law), I see employment law cases all over the country of an asymmetric type: small plaintiff against the big corporation. The change that I see is mainly on the corporation defendant level – they are getting their acts together much better on the preservation front. In fact, all across the whole spectrum, the corporations are slowly but surely getting there. There is still a long way to go, but I do see improvement. I see improvement in the defense bar in general and, of course, with my own attorneys, which for five years I have put through intensive training. We have 800 lawyers and I would say that 600 of them are litigators, so, after five years, there are certain things that have penetrated and they have developed a core level of competence, particularly on preservation. Preservation is in every case, so that’s the most important thing to get down pat and I have seen definite improvement in that.

Now, on the plaintiff side, it’s still amazingly slow. The plaintiffs’ bar is slow to catch up, they are still untrained and, for the most part, unknowledgeable. And, some of the ones that are active in eDiscovery are using it as a tool to be a “pain in the ass” really. They’re not doing it for true discovery; instead, they’re doing it more as a harassment tactic. And, they don’t really know what they’re doing. So, we have to deal with that. On the other hand, we are seeing more and more sincere plaintiff’s counsel too, so it’s not all bad. Just not as many as we would like, since cooperation really is the best way to go.

But, we are also seeing situations where we’re making requests and wanting to see the Facebook pages and wanting to see the plaintiff’s email. Although it is still asymmetric, there essentially isn’t a plaintiff in the world that doesn’t have an email account. We still need discovery from them. The impact is what I call the “boomerang effect” – be careful what you throw out there, it can come back right at you. When the tables are turned and we ask the plaintiff’s counsel “what are you doing about preservation”, we get big blank stares. In a way, the fact that the plaintiffs have their own ESI has leveled the playing field a bit.

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

I’d like the readers to check out what I’m working on to create a best practices and standards for the legal practice of electronic discovery, and I call that Electronic Discovery Best Practices (EDBP). It’s not EDRM, it’s about what lawyers do. That’s what I’ve been doing for the past eight years, helping lawyers do electronic discovery. That continues to evolve.

The thing that’s new that I’ve been working on is cybersecurity. So, one of my websites is eDiscoverySecurity.com where I talk about the need for lawyers and companies when they’re doing eDiscovery to be concerned about keeping it secure. We’re often assembling very sensitive documents, which are a target for hackers, including foreign governments. The Chinese are famous for this and law firms are being hacked. The final thing that I would point out is that I’ve got HackerLaw.org, which is another new web site that I’ve created associated with my interest in cybersecurity. I consider myself a “hacker” in the positive sense of someone who is hands on, working with computers – that’s what “hacker” really means. But, there’s also the “dark hat” hackers that are my enemies and there’s a whole war going on out there. This site pertains to that and also talks about the positive side of being a hacker (for example, Steve Jobs and Steve Wozniak were proud to call themselves “hackers”). Believe it or not, the term “hacker” started out in model railroading – the famous computer lab at MIT grew out of the model railroad club at MIT. They were hands on building railroad tracks and, out of that grew the whole computer culture – little known historical point.

As for the e-Discovery Team® Blog, the three part series that I just finished on ei-Recall was the hardest blog post series that I have ever written. I put a lot of time into it as a public service because I worried about what is the best way to confirm and verify your results when you’re doing a review. I call it “Quality Assurance” and there are so many ways to do it that I came up with this approach for recall and consulted a number of scientists during the process. I didn’t do it because I’m trying to sell anything. But, I hope it will become the de-facto standard and I wrote it, at length, so that anybody with a little study can do it on their own. People have started to tell me that they have studied the blog and are starting to do it, so that’s encouraging. The whole point of “I’ve attained 80% recall” – that’s wrong, you can never know exact recall, it has to be a range. I’ve had some scientists after the fact tell me that’s what they’ve been doing all along, they just didn’t call it “ei-Recall”. You only calculate it at the end of a project, but that’s when you need to do it. So, I think it has been one of my major accomplishments and I hope everyone will check it out.

Thanks, Ralph, 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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 sixth of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them most of the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. Two or three years ago, the “next big thing” was probably technology assisted review; last year, it was probably information governance. What would you say this year’s “next big thing” is, or do you think we have one this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year 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 are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

{Interviewed the first morning of LTNY, so the focus of the question to George was more about his observations about the curriculum for the show and what to expect}.

It is a little early for general observations about LTNY – we haven’t even heard the opening keynote panel discussion – but here goes. Looking at the curriculum and talking with attendees, speakers and exhibitors, it appears we have reached a stage where a significant number of eDiscovery providers are turning their attention from the “traditional” eDiscovery market and are looking, instead, for new markets. First it was information governance, now the “flavor of the month” appears to be security. Some providers are, I suspect, looking for a larger pond, on with more for them to eat; others may feel that the eDiscovery pond is getting too crowded or, perhaps, beginning to dry out.

At the same time, a large portion of the legal industry continues to be ignored by the bulk of eDiscovery providers. Many providers deem most law firms to be too small to pursue. After all, which law firm do you think a provider is more likely to try to get work from, one with 5 lawyers, or one with 500? And with roughly 80% of the 57,000 or so law firms in the US having 5 lawyers or less, that leaves a lot of law firms who aren’t getting a lot of eDiscovery love. I suspect we will see this reflected in the content delivered at the educations session and in the focus of software and services on display in the exhibit hall.

As for whether ALM should consider moving LTNY to a different time of year to minimize travel disruptions due to weather… For me, one of the draws of LTNY is that I get to go somewhere warm in the beginning of February. But then, I live in Minnesota. I think LTNY has a lock on the place and time. Software providers plan major releases and updates with LTNY in mind. Providers of all stripes schedule their biggest announcements for the weeks before LTNY takes place. Consumers shopping for new providers and providers seeking new customers set up meetings for the entire week of LTNY, not just at the Hilton but at surrounding hotels as well. So, some other place, some other time, just because of the weather? I don’t think so.

Two or three years ago, the “next big thing” was probably technology assisted review; last year, it was probably information governance. What would you say this year’s “next big thing” is, or do you think we have one this year?

If I were to be glib, I would say that this year’s “next big thing” will be just one more “bright shiny object.” But that would not really be fair. We have had a “next big thing” happening for several years now. But it has not been TAR, or information governance, or ECA, or any of those. Rather, it has been the many incremental improvements made in the tools available to us, the processes we use, and the sophistication of the people using those tools to carry out those processes. While we are a long way from a mature industry and a mature market, nonetheless we have made huge advances.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

I agree with the assessment that most attorneys still don’t know a lot about eDiscovery. We have a long way to go. We make incremental improvements, but I off the top of my head I can’t think about any major advances in the past year.

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

We’ve been making a number of changes and advancements with EDRM over the past year, especially the past few months. Look to see much more in terms of efforts to focus on standards and on practical tools and capabilities. Also, look to see much more from us in terms of collaborative activities, such as the recent partnering announcements with ACEDS as an Affinity partner and eDiscovery Daily as an Education partner. We’ve broadened our base of membership in terms of types of members considerably over the last year – we have a much larger number of corporate members than ever in the past and, for the first time, we have governmental members. I think that change in membership and the continued push toward the practical will lead to further positive changes with EDRM.

Here are links to some of EDRM’s other most recent announcements, including an updated statistical sampling guide, clarification to its Model Code of Conduct and release of the EDRM eDiscovery Maturity Self-Assessment Test (eMSAT-1).

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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.