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Electronic Discovery

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was Monday, here’s the second part.

Initial Considerations

Notice that the rule requires simply that the responding party must designate someone to testify on behalf of the business entity and not that the requesting party can specify the identity or even the position in the organization of the witness. It is also commonly interpreted by responding parties that they are not necessarily required to produce for deposition the most knowledgeable person in the organization but rather, anyone of their choosing who agrees to testify.

Since this means the witness will testify as the organization’s knowledge, not his or her own personal knowledge on the subject of the deposition, the obligation to educate the witness on the requested topics falls to the organization.

The key for the requesting party to ensure specificity during the deposition is the crafting of the notice of deposition. It should include specific topics to be covered at the deposition which are “reasonably particular” as the rule states but not be so detailed that objections can be raised during the deposition that a question or questions being asked was not part of the deposition notice.

The timing of the 30(b)(6) deposition is important. If taken at the beginning of the case, it may helpful to pinpoint issues for further discovery, such as detailing policies or procedures that can help define requests for production.  But a deposition taken later, say after document productions, can fill in gaps or answer questions raised by the documents themselves or even identify further fact witnesses to answer those questions.

Once the deposition has begun and it becomes clear that the witness is not able to testify about the topics in the deposition notice, a decision must be made to establish either that this is not the proper  witness to testify on the requested issues or merely demonstrate that the witness is not knowledgeable on the issues. The difference is whether you intend to seek a motion to compel the appearance of a different witness or alternatively preclude the organization from introducing testimony on these areas at trial.

On occasion, the witness is evasive or even outright hostile. This may be simply because the IT person designated to testify is not well prepared as noted above. But it may also be that the witness is not happy about having to testify, feels they are overqualified to testify and are being forced to deal with people who know less than he does or, in some rare cases, is part of a corporate document management strategy designed to specifically preserve and produce documents in only one specific manner.  Here’s a link to the outline of a CLE session presented by Chris Ralston, a senior Commercial Litigation Partner at Phelps Dunbar in New Orleans, and me, dealing with such a hostile witness.

We’ll publish Part 3 – Proposed Rule Change – on Friday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Craig Ball is “That Guy” Who Keeps Us Up to Date on Mobile eDiscovery Trends: eDiscovery Best Practices

So many topics, so little time (again).  In our webcast about millennials and their impact on eDiscovery last week, Tom O’Connor and I spent a lot of time talking about how millennials are quick to embrace new technology and certainly there have been few technology areas of growth like mobile device use.  They’re everywhere and used by (seemingly) everybody and used (seemingly) all day long.  Texts are the new emails, which means they have considerable importance from an eDiscovery perspective.  So, who should you go to if you want to stay apprised of mobile eDiscovery trends?  Craig Ball is “that guy”.

In Craig’s excellent Ball in Your Court blog, his latest post from last week (Preserving Android Evidence: Return of the Clones?), discusses Google’s recently expanded offering of “cheap-and-easy” online backup of Android phones, including SMS and MMS messaging, photos, video, contacts, documents, app data and more.  In discussing this new capability, Craig states: “This is a leap forward for all obliged to place a litigation hold on the contents of Android phones — a process heretofore unreasonably expensive and insufficiently scalable for e-discovery workflows.  There just weren’t good ways to facilitate defensible, custodial-directed preservation of Android phone content.  Instead, you had to take phones away from users and have a technical expert image them one-by-one.

Now, it should be feasible to direct custodians to undertake a simple online preservation process for Android phones having many of the same advantages as the preservation methodology I described for iPhones two years ago.  Simple.  Scalable.  Inexpensive.”

Craig did acknowledge that because Android backups live in the cloud, he anticipates that, at first, there will be no means to download the complete Android backup to a PC for analysis, thus requiring restoring the data to a factory-initialized “clean” phone as a means to localize the data for collection (at least until Google hopefully provides a suitable takeout mechanism).  As a result, “examiners may revive the tried-and-true cloning of evidence to clean devices then collecting from the restored device” (just like they once did with computer drives).  “Everything old is new again.”

Whether it’s informing us of simpler, less expensive ways of preserving iPhone and Android data, or keeping us updated as Apple announces it’s doing away with iTunes, or educating us on geolocation data, or providing us an easy to understand Mobile Evidence Burden and Relevance Scorecard.  Or he’s providing us with an entire 24 page white paper on mobile device discovery titled Mobile to the Mainstream.  So, when it comes to best practices and useful tips regarding mobile device discovery, Craig Ball is “that guy” (see what I did there, Craig?).  ;o)

So, what do you think?  Are you struggling with mobile device discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

DOS and DON’TS of a 30(b)(6) Witness Deposition

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

30(b)(6) depositions are a large part of many ediscovery matters with many considerations about how to work with a witness, get the proper information and best practices for framing and answering questions.

But before we look at some of those issues, let’s take a look at the rule itself and define our terms so it’s clear what we’re talking about.

What is a 30(b)(6) Deposition?

Federal Rule of Civil Procedure 30(b)(6) (found here) permits a party to notice or subpoena the deposition of “a public or private corporation, a partnership, an association, a governmental agency or other entity and must describe with reasonable particularity the matters for examination.”

In response, the named organization “must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.” Once noticed, the designated witness “…. must testify about information known or reasonably available to the organization.”

In this paper, we will take a look at several aspects and best practices regarding 30(b)(6) depositions, including:

  1. Initial Considerations
  2. Proposed Rule Change
  3. Common Mistakes
  4. Specific Strategies to Consider
  5. Conclusions

We’ll publish Part 2 – Initial Considerations – on Wednesday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Nine is Divine! eDiscovery Daily is (Cloud)Nine Years Old!

Our “nine clouds” logo is making a one-day comeback!  If you read our blog yesterday, you probably noticed that our Throwback Thursday post was from the day eDiscovery Daily was launched.  That was nine years ago today!

We launched nine years ago on September 20, 2010.  Back then, we told you to not get “wild” with wildcards (and repeated that message yesterday).  And, we published our first case law post about a case where the spoliator of data was actually threatened with jail time –  our first of 701 posts about case law to date, covering more than 540 distinct cases!  We’ve published over 2,269 lifetime posts, and every post is still available on the site for your reference.  We’ve been around for so long and published so much, we don’t even bother with the six month milestones anymore!

And, as always, we have you to thank for all of that success!  Thanks for making the eDiscovery Daily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support – you make us feel like we’re on CloudNine!

As many of you know by now, we like to take a look back each anniversary at some of the important stories and topics during that time.  So, here are some posts over the last few months you may have missed.  Enjoy!

Here’s an evidence story that only a word geek like me can appreciate.

How many states have Security Breach Notification Laws? You might be surprised.

When does a party fight NOT to have a claim against them dismissed?  When they think it keeps their sanction possibility alive – at least in this case.

Phishing emails can be so deceiving these days.  Here’s an example of one and what you can do about them.

Do you still use the Enron data set for testing?  Maybe you shouldn’t.

Should a judge accept a Facebook friend request from a litigant?  Maybe not always.

If you’re going to fire your IT guy, you might want to change the passwords on your servers.  All 23 of them.

Significant spoliation sanctions may be more difficult to get now, but “it’s never over ‘til it’s over” as this case shows.

Just because you have a Motion to Dismiss pending doesn’t mean you can stay discovery until it’s decided.

Why do hackers hack?  For the money, of course.

Here’s a “cautionary tale about how not to conduct discovery in federal court”.  ‘Nuff said.

How many times do you have to spoliate ESI before you receive case termination sanctions?  In this case, more than three.

There are plenty of reasons that organizations experience a data breach: unpatched vulnerabilities in your software is only the latest one to worry about.

Not since Clubber Lang predicted “pain” in Rocky III has the state of legal tech consolidation seen such “carnage”.

Data privacy fines keep going up.  This proposed fine was for $230 million.  This one was approved for more than 20 times that.

If you keep track of Hollywood news, you probably already know this story.  But, you may not know the eDiscovery significance of the Kevin Spacey harassment cases.

Here are some of my observations regarding this year’s ILTACON conference using the theme of the classic spaghetti western The Good, The Bad and the Ugly.

Sure, we’ve been talking a lot the past couple of years about GDPR and CCPA.  But, “COPPA” just cost YouTube and Google $170 million.

In this case regarding spoliation of cell phone data, the judge recommended that the intent to deprive question be left up to the jury.  So did this one.

This is just a sampling of topics that we’ve covered.  Hope you enjoyed them!

Thanks for the interest you’ve shown in the topics!  We will do our best to continue to provide interesting and useful eDiscovery, cybersecurity and data privacy news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!  On to 10 years!  Do it again at ten!  :o)

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

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

Don’t Get “Wild” with Wildcards: eDiscovery Throwback Thursdays

Here’s our latest blog post in our Throwback Thursdays series where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on September 20, 2010 – which was the day eDiscovery Daily was launched!  We launched that day with an announcement post, this post and our first case law post where Judge Paul Grimm actually ordered the defendant to be imprisoned for up to two years or until he paid the plaintiff “the attorney’s fees and costs that will be awarded to Plaintiff as the prevailing party pursuant to Fed. R. Civ. P. 37(b)(2)(C).”  (Spoiler alert – the defendant didn’t ultimately go to jail, but was ordered to pay over 1 million dollars to the plaintiff)…

Even before the 2015 Federal Rules changes, we didn’t see any other cases where the parties were threatened with jail time.  But I personally have seen several instances where parties still want to get “wild” with wildcards.  We even covered a case where the parties negotiated terms that included the wildcard for “app*” because they were looking for phone applications or apps (an even more extreme example than the one I detail below).  Check it out too.  And, enjoy this one as well!  It’s as relevant today as it was (almost) nine years ago!

A while ago, I provided search strategy assistance to a client that had already agreed upon several searches with opposing counsel.  One search related to mining activities, so the attorney decided to use a wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining”.

That one search retrieved over 300,000 files with hits.

Why?  Because there are 269 words in the English language that begin with the letters “min”.  Words like “mink”, “mind”, “mint” and “minion” were all being retrieved in this search for files related to “mining”.  We ultimately had to go back to opposing counsel and negotiate a revised search that was more appropriate.

How do you ensure that you’re retrieving all variations of your search term?

Stem Searches

One way to capture the variations is with stem searching.  Applications that support stem searching give you an ability to enter the root word (e.g., mine) and it will locate that word and its variations.  Stem searching provides the ability to find all variations of a word without having to use wildcards.

Other Methods

If your application doesn’t support stem searches, Morewords.com shows list of words that begin with your search string (e.g., to get all 269 words beginning with “min”, go here – simply substitute any characters for “min” to see the words that start with those characters).  Choose the variations you want and incorporate them into the search instead of the wildcard – i.e., use “(mine or “mines or mining)” instead of “min*” to retrieve a more relevant result set.

Many applications let you preview the wildcard variations you wish to use before running them.  For example, our CloudNine Review™ solution (shameless plug warning!) performs a preview when you start to type in a search term to show you words within the collection that begin with that string.  As a result, you can identify an overbroad term before you agree to it.

So, what do you think?  Have you ever been “burned” by wildcard searching?  Do you have any other suggested methods for effectively handling them?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Today’s Webcast Will Show You How to Think Like a Millennial When Addressing eDiscovery Needs: eDiscovery Webcasts

As we learned in Tom O’Connor’s recent five part blog series, millennials may be changing eDiscovery (depending on your point of view).  Regardless, eDiscovery is changing and millennials may be a BIG part of that change.  TODAY’S webcast will help you think like a millennial to address your eDiscovery needs.

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Thinking Like a Millennial in eDiscovery.  This CLE-approved* webcast session will discuss how evolving technology trends are impacting eDiscovery today and how to think like a millennial to stay on top of those developing trends. Key topics include:

  • Understanding Millennials and How They Differ from Previous Generations
  • Drivers for Millennials’ Thinking Today
  • How Litigation Support and eDiscovery Has Evolved Over the Years
  • Challenges Posed by BIG Data and Variety of Data Sources
  • Ethical Duties and Rules for Understanding Technology
  • Impact of Millennials on Legal Technology and eDiscovery
  • Your Clients May Have More ESI Than You Think
  • Recommendations for Addressing Today and Future Technology Challenges

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here – it’s not too late! Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn how the habits of millennials will impact your eDiscovery processes, this is the webcast for you!

So, what do you think?  Are you concerned about how the habits of millennials will impact your eDiscovery processes?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

The Cat and Mouse Game Between Data Privacy Regulators and Online Advertisers: Data Privacy Trends

You didn’t think companies that make a lot of their revenue in online advertising were going to just roll over when Europe’s General Data Protection Regulation (GDPR) was enacted to protect personal information, did you?  Apparently not, as this article discusses.

According to Legaltech® News (Is the GDPR Creating a Cat-and-Mouse Game Between Advertisers and Regulators?, written by Frank Ready), the browser company Brave alleged last week that Google was using a mechanism called “push pages” to work around restrictions on the sharing of personally identifiable information (PII) laid out by the EU’s General Data Protection Regulation (GDPR). It did so, Brave said, by assigning a distinct, almost 2,000 character-long code to user information shared with advertisers.

Google issued a response to the site Tom’s Hardware saying that it does not “serve personalized ads or send bid requests to bidders without user consent.”  But, Google’s ad practices are already facing an inquiry by the Irish Data Protection Commission (DPC), specifically with regards to how well they comply with “GDPR principles of transparency and data minimization.” However, regulators attempting to enforce the anonymization of user data could find it difficult to keep pace with companies looking for new ways to both comply with privacy requirements and protect the online advertising revenue that is central to their business.

Jarno Vanto, a partner in the privacy and cybersecurity group at Crowell & Moring, thinks part of the problem is most of the information that’s collected about users online nowadays could potentially qualify as PII.

“Ad tech companies are now trying to come up with ways on the one hand to comply, but then they are still stuck in the old world where they were able to collect all of this data because they could rely on this distinction between non-PII and PII, and that’s no longer really a valued distinction,” Vanto said.

Debbie Reynolds, founder of the data privacy and cyber response firm Debbie Reynolds Consulting, believes other companies will be looking towards the outcome of the Irish DPC’s inquiry with interest as they try to align their own data practices with compliance and profitability.  Still, she’s not expecting much in the way of new parameters surrounding what constitutes a unique identifier.

“I don’t think the regulators are going to try and go out of their way to create new words or new definitions,” Reynolds said.

Vanto said he thinks it could be a tough road due to the amount of resources that would have be leveraged in order to keep track of the practices employed by each technology company.  But Vanto also noted that there are tech-savvy privacy activists who have an interest in monitoring such activity, as well as rival companies that may also be inclined to keep their competitors moving towards the same kind of consent-based data sharing models that they are being driven to adopt into their advertising practices.

Just like Tom is always finding it difficult to stop Jerry, it appears that regulatory agencies – even with GDPR – are finding it difficult to stop the companies wanting to do everything they can to keep the advertising dollars flowing.  It will be interesting to see how this struggle plays out over time.

So, what do you think?  Will the regulatory agencies be able to find a way to protect personal information from advertisers?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Turner Entertainment

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

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

It’s Friday the 13th! So, What’s Worse – Jason or Last Minute Votes on CCPA Amendments?: Data Privacy Trends

OK, today is the day that spawned a whole series of horror movies that have been a part of the Hollywood lexicon for nearly forty years now.  But the decisions being made in California this week could impact data privacy considerations for…well, who knows how long?  So, which is worse?  Depends on your point of view, I guess.

You all know the legacy of all the Friday the 13th movies, starting with this one way back in 1980 (still a classic!).  Yes, it even had Kevin Bacon in it, which should appease all you “Six Degrees of Kevin Bacon” fans.  Thank you, sir, may I have another?  ;o)

No, you may not, because this post is about data privacy and the California Consumer Privacy Act (CCPA).  According to this article from Alysa Zeltzer Hutnik & Alex Schneider at Kelley Drye, apparently this week marks the final opportunity for California lawmakers to amend the CCPA before the legislative session closes.

And, they have been busy with changes, according to this article from yesterday from Andrew Kingman and Jim Halpert (no, not THAT Jim Halpert) from the International Association of Privacy Professionals (IAPP) where we learned that the proposed amendment to support loyalty programs (to permit the sale of personal information collected through loyalty programs in very limited circumstances) has been shelved for the year.

Speaking of IAPP, they have a great infographic here (and below) that shows the status of privacy laws in various states.  You know I love an infographic!

Not enough detail for you?  They also have this more detailed table with references to each statute or bill currently making its way through the legislative process.

They say a picture is worth a thousand words and I’ve given you at least two of them, so I’ve earned a few days off, I’d say.  I’ll settle for two.  Back Monday!

So, what do you think?  Are you concerned about last minute changes to CCPA?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © New Line Cinema (you know which one)

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

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

Searching for Email Addresses Can Have Lots of Permutations Too: eDiscovery Throwback Thursdays

Here’s our latest blog post in our Throwback Thursdays series where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on November 15, 2012 – when eDiscovery Daily was early into its third year of existence and continues the two-part series we started last week.  Email addresses still provide the same opportunities and challenges for identifying documents associated with individuals that they did nearly seven years ago.  Enjoy!

Last week, we discussed the various permutations of names of individuals to include in your searching for a more complete result set, as well as the benefits of proximity searching (broader than a phrase search, more precise than an AND search) to search for names of individuals.  Another way to identify documents associated with individuals is through their email addresses.

Variations of Email Addresses within a Domain

You may be planning to search for an individual based on their name and the email domain of their company (e.g., daustin@cloudnine.com), but that’s not always inclusive of all possible email addresses for that individual.  Email addresses for an individual’s domain might appear to be straightforward, but there might be aliases or other variations to search for to retrieve emails to and from that individual at that domain.  For example, here are three of the email addresses to which I can receive email as a member of CloudNine:

To retrieve all of the emails to and from me, you would have to include all of the above addresses (and others too).  There are other variations you may need to account for, as well.  Here are a couple:

  • Jim Smith[/O=FIRST ORGANIZATION/OU=EXCHANGE ADMINISTRATIVE GROUP (GZEJCPIG34TQEMU)/CN=RECIPIENTS/CN=JimSmith] (legacy Exchange distinguished name from old versions of Microsoft Exchange);
  • IMCEANOTES-Andy+20Zipper_Corp_Enron+40ECT@ENRON.com (an internal Lotus Notes representation of an email address from the Enron Data Set).

As you can see, email addresses from the business domain can be represented several different ways, so it’s important to account for that in your searching for emails for your key individuals.

Personal Email Addresses

Raise your hand if you’ve ever sent any emails from your personal email account(s) through the business domain, even if it’s to remind you of something.  I suspect most of your hands are raised – I know mine is.  Identifying personal email accounts for key individuals can be important for two reasons: 1) those emails within your collection may also be relevant and, 2) you may have to request additional emails from the personal email addresses in discovery if it can be demonstrated that those accounts contain relevant emails.

Searching for Email Addresses

To find all of the relevant email addresses (including the personal ones), you may need to perform searches of the email fields for variations of the person’s name.  So, for example, to find emails for “Jim Smith”, you may need to find occurrences of “Jim”, “James”, “Jimmy”, “JT” and “Smith” within the “To”, “From”, “Cc” and “Bcc” fields.  Then, you have to go through the list and identify the email addresses that appear to be those for Jim Smith.  Any email addresses for which you’re not sure whether they belong to the individual or not (e.g., does jsmith1963@gmail.com belong to Jim Smith or Joe Smith?), you may need to retrieve and examine some of the emails to make that determination.  If he uses nicknames for his personal email addresses (e.g., huggybear2012@msn.com), you should hopefully be able to identify those through emails that he sends to his business account.

To summarize, searching by email address is another way to identify documents pertaining to a key individual.  The key is making sure your search includes all the email addresses possible for that individual.

So, what do you think?  How do you handle searching for key individuals within your document collections?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Fall 2019 Predictive Coding Technologies and Protocols Survey Results: eDiscovery Trends

So many topics, so little time!  Rob Robinson published the latest Predictive Coding and Technologies and Protocols Survey on his excellent ComplexDiscovery site last week, but this is the first chance I’ve had to cover it.  The results are in and here are some of the findings in the largest response group for this survey yet.

As Rob notes in the results post here, the third Predictive Coding Technologies and Protocols Survey was initiated on August 23 and concluded on September 5 with individuals invited to participate directly by ComplexDiscovery and indirectly by industry website, blog, and newsletter mentions – including a big assist from the Association of Certified E-Discovery Specialists (ACEDS).  It’s a non-scientific survey designed to help provide a general understanding of the use of predictive coding technologies and protocols from data discovery and legal discovery professionals within the eDiscovery ecosystem.  The survey was designed to provide a general understanding of predictive coding technologies and protocols and had two primary educational objectives:

  • To provide a consolidated listing of potential predictive coding technology and protocol definitions. While not all-inclusive or comprehensive, the listing was vetted with selected industry predictive coding experts for completeness and accuracy, thus it appears to be profitable for use in educational efforts.
  • To ask eDiscovery ecosystem professionals about their usage and preferences of predictive coding platforms, technologies, and protocols.

There were 100 total respondents in the survey (a nice, round number!).  Here are some of the more notable results:

  • 39 percent of responders were from law firms, 37 percent of responders were from software or services provider organizations, and the remaining 24 percent of responders were either part of a consultancy (12 percent), a corporation (6 percent), the government (3 percent), or another type of entity (3 percent).
  • 86 percent of responders shared that they did have a specific primary platform for predictive coding versus 14 percent who indicated they did not.
  • There were 31 different platforms noted as primary predictive platforms by responders, nine of which received more than one vote and they accounted for more than three-quarters of responses (76 percent).
  • Active Learning was the most used predictive coding technology, with 86 percent reporting that they use it in their predictive coding efforts.
  • Just over half (51 percent) of responders reported using only one predictive coding technology in their predictive coding efforts.
  • Continuous Active Learning (CAL) was (by far) the most used predictive coding protocol, with 82 percent reporting that they use it in their predictive coding efforts.
  • Maybe the most interesting stat: 91 percent of responders reported using technology-assisted review in more than one area of data and legal discovery. So, the uses of TAR are certainly expanding!

Rob has reported several other results and provided graphs for additional details.  To check out all of the results, click here.  Want to compare to the previous two surveys?  They’re here and here.  :o)

So, what do you think?  Do any of the results surprise you?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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