Close
Enter your
text here

Electronic Discovery

Tom O’Connor of Gulf Coast Legal Technology Center – eDiscovery Trends

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

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

Today’s thought leader is Tom O’Connor.  Tom is a nationally known consultant, speaker and writer in the area of computerized litigation support systems.  A frequent lecturer on the subject of legal technology, Tom has been on the faculty of numerous national CLE providers and has taught college level courses on legal technology.  Tom’s involvement with large cases led him to become familiar with dozens of various software applications for litigation support and he has both designed databases and trained legal staffs in their use on many of the cases mentioned above. This work has involved both public and private law firms of all sizes across the nation.  Tom is the Director of the Gulf Coast Legal Technology Center in New Orleans.

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

In my opinion, LegalTech has become a real car show.  There are just too many vendors on the show floor, all saying they do the same thing.  Someone at the show tallied it up and determined that 38% of the exhibitors were eDiscovery vendors.  And, that’s just the dedicated eDiscovery vendors – there are other companies like Lexis, who do other things, but half of their booth was focused on eDiscovery.  The show has sections of the booths down one long hall with sales people standing in front of each section and it’s like “running the gauntlet” when you walk by them.  It’s a bit overwhelming.

Having said that, a lot of people were still getting stuff done, but they were doing so in the suites either at the hotel or across the street.  I saw a lot of good B-to-B activities off the sales floor and I think you can get more done with the leads that you get if you can get them off the sales floor in a more sane environment.  At the same time, if you’re not at the show, people question you.  They’ll say “hey, what happened to the wombat company?”  So, being at the show still helps, at least with name recognition.

One trend that has been going on for a while is that “everybody under the sun” is doing eDiscovery or says that they’re doing eDiscovery.  The phenomenal growth of the number of eDiscovery vendors of all sizes surprises me.  We see headlines about providers getting bought out and some companies acquiring other companies, but it seems like every time one gets acquired, two more take its place.  That surprised me as I expected to see more stratification, but did not.  Not that buyouts aren’t occurring, but there’s just so much growth in the space that the number of players is not shrinking.

Another trend that I noticed which puzzled me until I walked around the show and realized what was going on, is the entry of companies like IBM and Xerox into the eDiscovery space.  It puzzled me until I took a good look at their products and realized that the trend is to get more throughput in processing.  Our data sets are getting so big.  A terabyte is just not that unusual anymore.  Two to five terabytes is becoming typical in large cases.  500 GB to 1 terabyte is becoming more common, even in a small case.  Being able to process 5 to 10 GB an hour isn’t cutting it anymore and I saw more pressure on vendors to process up to a terabyte (or even more) per day.  So, it makes sense that companies like IBM and Xerox are going to get into the big data space for corporate clients because they’re already there and they have the horsepower.  So, I see the industry focused on different ways to speed up ingestion and processing of data.

That has been accompanied by another trend: pricing pressures.  Providers are starting to offer deals like $20 per GB all in with hosting, processing, review, unlimited users, etc.  From the other end of the spectrum of companies like IBM and Xerox are small technology companies, coming not from legal but from a very high-end technology background, looking to apply their technology skills in the eDiscovery space and offering really discounted prices.  I’ve seen a lot of that and we started to see it last year, with providers starting to offer project pricing and getting away from a per GB pricing model.  I think we’re going to see more and more of that as the year goes along.  I hesitate to use the word “commoditized” because I don’t think it is.  It’s not like scanning – every eDiscovery job is different with the types of files you have and what you want to accomplish.  But, there will certainly be a big push to lower the pricing from what we’ve been seeing for the 1-3 years and I think you’re going to see some pretty dramatic price cuts with pressure from new players coming into the market and increased competition.

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

I’ve been astonished that after the first wave of comments last fall that there has been little or no public comments or even discussion in the media about the rules changes. The public comment period closes tomorrow (Tom was interviewed on February 14) and you know the saying “March comes in like a lion and goes out like a lamb”?  That seems to be how it is with the end of the comment period.  I think I saw one article mentioning the fact that the comments were closing this week.  It has been a surprising non-issue to me.

For that reason, I think the rules changes will go through.  I don’t think there has been a concerted effort to speak out against them.  As I understand it, the rules still won’t be enacted until 2016 because they still have to go back to the committee and through Congress and through the Supreme Court.  It’s a really lengthy period which allows for intervention at a number of different steps.  But, I haven’t seen any concerted effort mounted to talk against them, though Judge Scheindlin has been quite adamant in her comments.  My personal feeling is that we didn’t need the new rules.  I think they benefit the corporate defense world and change some standards.  Craig Ball pointed out in a column last year that they don’t even address the issue of metadata, which is problematic.  I don’t think we needed the rules changes, quite frankly.  And, I wrote a column about that last year.  In a world where I hear commentators and judges say that 90% of the attorneys that appear in front of them still don’t understand ESI or how things work, clearly if they don’t understand the current rules, why do we need rules changes?  Let’s get people up to speed on what they’re supposed to be doing now before we worry about fine tuning it.  I understand the motivation behind getting them enacted from the people who are pushing for them, why they wanted them and I suspect they will pretty much go through as written.

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

I absolutely agree with that.  I think the obvious remedy is to educate them where lawyers get educated, which is in law schools and I think the law schools have been negligent, if not grossly negligent, in addressing that issue.  Browning Marean and I went around to the different law schools to try to get them to sponsor a clinic or educational program in this area eight or nine years ago and were rebuffed.  Even to this day, though there are some individuals that are teaching classes at individual law schools, with the exception of a new program at Northeastern, there has been no curriculum devoted to technology as part of the regular law school curriculum.

Even the programs that have sprung up: the wonderful job that Craig Ball and Judge Facciola does at Georgetown Law School is sponsored by their CLE department, not the law school itself.  Michael Arkfeld has a great program that he does for three days down at the Sandra Day O’Connor law school in Arizona State University (covered on the blog here).  But, it’s a three day program, not a course, not a curriculum.  It’s not a focus in the curriculum of the actual law school itself.  We’ve had “grass roots” efforts spring up with Craig’s and Michael’s efforts, what Ralph Losey and his son Adam have been doing, as well as a number of people at the local level with CLE programs.  But, the fact is that lawyers get educated in law schools and if you really want to solve this, you make it as part of the curriculum at law schools.

There has always been an attitude on the part of law schools.  As Browning and I were told by the dean of a top flight law school several years ago, “we train architects, not carpenters”.  I myself was referred to, face-to-face, by a group of law professors as a “tradesman”.  They said “Gee, Tom, this proposal is a great idea, but why would we trust the education of our students to a tradesman like you?”  There’s this sort of disdainful academic outlook on anything that involves the hands-on use of computers and that’s got to change.  Judge Rosenthal said that “we have to change the paradigm” on how we handle things.  Lawyers and judges alike have to look at things differently and all of us need to adjust how we look at the world today.  Because it’s not just a legal issue, it’s a social issue.  Society has changed how it manufactures, creates and stores information/data/documents.  Other professional areas have caught onto that and legal education has really lagged behind.

I mentioned the eDiscovery Institute at Georgetown Law School, which happens every June.  But, they cap the attendants at about 60.  Do the math, there are about a million lawyers in the country and if you’re only going to educate 60 per year, you’ll never get there.  I also think that bar associations could be much more forthright in education in this area and requiring it.  Judicial pressure is having the best results – judges are requiring some sort of certification of competence in this area.  I know of several Federal judges who require the parties to state for the record that they’re qualified to address eDiscovery.  Some of the pilot projects that have sprung up, like the one at the University of Chicago, are going to require a self-certifying affidavit of competence (assuming they pass) stating that you’re qualified to talk about these issues.  Judges are expecting lawyers, regardless of how they learn it, to know what they’re talking about with regard to technology and not to waste the court’s time.

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

I just recently published a new guide on Technolawyer, titled LitigationWorld Quick Start Guide to Mastering Ediscovery (and covered on this blog here).  There are a lot of beginner’s guides to eDiscovery, but this one doesn’t really focus on eDiscovery, it focuses on technology, answering questions like:  How do computers work?  What are bits, bytes, RAM, what’s a gigabyte, what’s a terabyte, etc.

I literally had a discussion about an hour ago with a client for whom we have a big case going on in Federal court and there’s a large production, over a terabyte being processed by our opponents in the case right now.  I asked the client how much paper he thought that was and he had no idea.  The next time we start arguing cost in front of the judge, I’m going to bring in a chart that says a gigabyte is X number of pages of paper so that it has some meaning to them.  So, I think it’s really important to explain these basic concepts, and we in the technology world forget quite a bit how little many lawyers know about technology.  So the guide is designed to talk about how electronic media stores data, how that data is retrieved and explains some of the common terms and phrases used in the physical construction and workings of a computer.  Before you even start talking about eDiscovery, you need to have an understanding of how computers work and how they find data and where data can reside.  We throw around terms like “slack space” and “metadata” casually without realizing that not everyone understands those terms.  This guide is meant to address that knowledge gap.

I’m continuing some of my case work, of course.  Lastly, I recently joined a company called Cavo, which is bringing a new eDiscovery product to market that I’m excited about.  Busy as always!  And, of course, there are always good things going on in New Orleans!

Thanks, Tom, for participating in the interview!

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

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

Apple Can’t Mention Inadvertent Disclosure in Samsung Case – eDiscovery Case Law

Back in January, Quinn Emanuel Urquhart & Sullivan LLP was sanctioned for their inadvertent disclosure in the Apple vs Samsung litigation (commonly referred to as “patentgate”).  California Magistrate Judge Paul S. Grewal handed down an order on motions for sanctions against Quinn Emanuel (in essence) requiring the firm to “reimburse Apple, Nokia, and their counsel for any and all costs and fees incurred in litigating this motion and the discovery associated with it”.  Many felt that Samsung and Quinn Emanuel got off lightly.  Now, Apple can’t even mention the inadvertent disclosure in the upcoming Samsung trial.

According to a story on Law360 (subscription required), U.S. District Court Judge Lucy Koh barred Apple last Wednesday from presenting evidence that Quinn Emanuel leaked confidential information regarding an Apple license agreement, saying that such testimony could prejudice jurors.  “The court believes any evidence [on the leak] could be irrelevant and a waste of time. It would confuse the jury and is outweighed by prejudice,” Judge Koh said. “Apple says it doesn’t intend to bring in any information of that violation unless Samsung opens the door.”

Judge Koh also came close to barring Apple from introducing evidence on the total revenues Samsung earned selling its products that are alleged to infringe on Apple patents. In their damages retrial in November where Apple was awarded $290.5 million (bringing the total awarded for infringing on Apple products to almost $930 million), Samsung’s revenues became a sticking point.  Although Samsung argued last week that Apple shouldn’t be allowed to bring up any of Samsung’s revenues or profits from the accused products, Judge Koh said she wouldn’t go that far. Apple’s damages expert uses many of those numbers in his calculations, and it would be “weird” to limit his testimony on income he considered in those calculations, she said.

For our previous coverage of the case, click here, here, here, here, here and here.

So, what do you think? Is this the case that never ends?  Will there be much more to come?  Do you wish you had some of the fees from this case?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Jason R. Baron of Drinker Biddle & Reath LLP – eDiscovery Trends

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

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

Today’s thought leader is Jason R. Baron.  An internationally recognized speaker and author on the preservation of electronic documents, Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice.  Jason previously served as Director of Litigation for the U.S. National Archives and Records Administration (NARA) and as trial lawyer and senior counsel at the Department of Justice.  He was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.  He also founded the international DESI (Discovery of Electronically Stored Information) workshop series, bringing together lawyers and academics to discuss cutting-edge issues in eDiscovery.

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

I think that it was clear, not only to me but to many other attendees that I spoke with at the show, that there was a greater focus and attention this year on Information Governance.  It’s the new black.  You saw that especially in the educational sessions.  Now my good friend Ralph Losey, in a recent posting on his brillilant blog e-Discovery Team®, referred in passing to the topic of Information Governance as “boring” – however, what I think he meant to say is that if Information Governance is simply viewed as the current buzzword for what constitutes electronic recordkeeping best practices, that would be unfortunate.  It’s a lot more profound than that.

In my view, the types of analytics that we use in eDiscovery for predictive coding have an important role in Information Governance as well.  The research that I had some role in, coming out of the TREC Legal Track, and subsequent articles by Maura Grossman, Patrick Oot and others, have all helped to crystallize what constitute best practices in the eDiscovery search and document review space.  But the knowledge that we have gained about analytics in these various research studies, as validated in recent court opinions like Da Silva Moore, are applicable to a much broader application than merely in eDiscovery practice.

That is to say, we can all be smarter about using analytical methods to solve lots of legal issues which arise outside of the narrow band of eDiscovery but inside the broader realm of Information Governance.  Ralph discussed this in a recent blog when he referred to the idea of using “presuit” analytics to predict and prevent lawsuits from happening in the first place.  Ralph’s column shows that he certainly gets it, and that I can count him in as a true believer in pre-litigation analytics being accomplished to lower corporate overall risk including the prevention of potential lawsuits.

So, the hottest topic at LegalTech was Information Governance and, as part of that discussion, a conversation about what best practices are from a technology perspective in the space.  What other trends  out there were noted?

Other themes at LegalTech that reflect trends specifically affecting legal and eDiscovery practice: First, it’s clear to us that the cloud is becoming a dominant paradigm for the storage of big data, and that we need to continue to understand how eDiscovery in particular can be optimized in cloud environments.  Second, there is increased attention to the notion of technological competence, in light of the amendments to the Model professional rules of responsibility, including the comment to Rule 1 about the need for attorneys to be technologically competent in keeping up with the law.  That comment certainly means something in the eDiscovery space.  Beyond those two, we saw a conversation about new technologies and new ideas that are happening and that need to be absorbed into the practice of law – for example, sessions on drones and sessions that noted the “Internet of things”.  In all sorts of ways, these various discussion threads show that there are a thousand different ways to collect data in the world, all of it is ESI and all of it needs to be factored in when we’re litigating cases and when we’re trying to govern the data that organizations hold.

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

Well, my crystal ball tells me not to make predictions.  However, we’re now up to 700 comments in the last week leading up to the February 15, 2014 deadline for responding. [Editor’s note: over 2,000 comments were submitted by the actual deadline.]  Those comments are sharply divided between a community of plaintiffs’ counsel who question the necessity for rules change, and the defense bar, which at least a part of which strongly urges rules changes in the belief that the present rules encourage over-preservation of evidence, and that more in the way of limitations imposed on discovery should now be imposed.  So, that’s the battleground.  I think a good bet in the space is that the language that emerges is going to be much like the amendments currently proposed, but no one knows for sure.

My view about the amendments is a different one than what has been reflected in most of the comments, which I have put forward on behalf of the Information Governance Initiative (see below).  The view that I have is that there are aspects of the rules amendments that can be supported, and certainly Federal Rule of Civil Procedure 1 should be amended to incorporate the notion of parties cooperating.   However, what I believe to be of greater importance than rules change is a recognition on the part of the judiciary as well as all litigants that the volume and complexity of data is doubling every couple of years, and the technological environment is one that should include advanced tools to help remediate the severe challenges we all face in terms of the preservation of ESI. We live in a world of exponential growth of big data and we need to deal with that fact at a more foundational level than with rules changes for litigation.  So, I urge that we pay attention to both best practices as a matter of technology in the maintenance of big data in electronic systems, as well as continued education of the bench and bar on how to deal with this new reality — because we’re not going back to the 20th century.  The world of exabytes that we live in is only getting bigger and we have to deal with it.  In my mind, I’m attempting to carve out a middle ground where the rules debate is not as draconian or as starkly imagined as parties would reflect in the comments, but rather that we need to step back and ask more fundamental questions.

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

Every survey that I know of drives this point home, that there is a “bubble” that some of us practice in where we go from conference to conference, acting as if the 2006 rules amendments are “old hat,” whereas the concept of how to deal with ESI is something new and novel to many others.  So, there is a learning curve that exists where the greater part of the legal community needs to become better versed in the more advanced aspects of eDiscovery.  By now, everyone knows about email potentially being relevant evidence, but not very many people could step through a workflow on predictive coding.  Nor do they necessarily have to do so in a large swath of cases that, candidly, are not a candidate for the most advanced methods.  We need to apply some degree of proportionality analysis to competence and the level of competence that someone needs is dependent on the complexity of the case.  If there is giant litigation that involves billions of documents, then you really need to understand the technical issues at hand, and what questions to ask, to ensure that you’re using the most advanced and efficient search and document review methods.  On the other hand, if you have a case that is only a couple of hundred documents that is in state court or some local jurisdiction, then these more advanced methods are obviously not needed.

So, I think there is an aspect that you’re exactly right to point out, that this is all still new, and we are still maturing in mapping out defensible ediscovery practices in the post-2006 Rules amendment world. But, increasingly, as I have said, we live in a world of digital information.  Whether it’s a family law case involving the exchange of emails or an employment case or even a hit and run case involving GPS data, attorneys are necessarily finding that there cases do indeed involve aspects of discovery where digital or electronic evidence is material and important.  To that extent, all lawyers need to know something about how to preserve, how to collect, how to review and how to produce ESI.  It is clear to me as the years go by that the bar is getting raised in a greater and greater number of cases and that more and more lawyers need to be competent with respect to basic eDiscovery.

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

Here’s one thing I’m very excited about.  Bennett Borden, who is chair of the Information Governance and eDiscovery practice here at Drinker Biddle, and Barclay Blair, who runs the company ViaLumina and is a thought leader in the Information Governance space, have teamed up to found the Information Governance Initiative and invited me to act as Co-Chair.  The Initiative is a vendor-neutral industry consortium and think tank which has as its mission a goal of fostering discussion about best practices in the Information Governance space.  We have received a large outpouring of goodwill in the form of individuals joining up as members (it’s free to join, by the way), as well as corporate sponsors who have products and services that address IG issues.  And we hope through various platforms that there will be a better smarter dialogue about how to deal with the challenges of big data and Information Governance using many of the analytical methods that I alluded to earlier.  This is exciting to be part of and I’m delighted, after joining Drinker Biddle, to be able to work with Bennett, Barclay, as well as Jay Brudz and others, to attempt to provide some measure of thought leadership in this space.

I should note that there are other great organizations who are also putting on programs, including The Sedona Conference, which has put out a wonderful Commentary on Information Governance spearheaded by Sedona WG1 chair Conor Crowley, that’s freely available for download.  Sedona and ARMA have also teamed up to put on an information governance conference coming up in April 2014 in Florida.  These are all great to advance the ball.    Hopefully, all of our collective efforts will help to jump start serious conversations around optimizing IG.  For my part, I certainly would encourage individuals to look up the IG Initiative and participate in future activities. (See www.iginitiative.com.)

Thanks, Jason, for participating in the interview!

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

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

Federal Court Partially Reverses District Court’s Taxation of Electronic Discovery Costs – eDiscovery Case Law

In CBT Flint Partners, LLC v. Return Path, Inc., No. 2013-1036, 2013 U.S. App. (Fed. Circ. Dec. 13, 2013), the Federal Circuit Court of Appeals reversed in part and vacated in part an earlier decision by the Georgia district court to require the plaintiffs to pay the defendants’ costs relating to the production and duplication of electronically stored information (ESI) offered as eDiscovery, limiting taxation to only those costs which were directly related to copying.

Circuit Judges O’Malley and Taranto heard the appeals case, which was filed by the plaintiff after a district court ruled in favor of the defendants regarding the taxation of costs for eDiscovery. The initial case, a patent infringement lawsuit, was found in favor of the defendants, and the district court determined that the plaintiffs should pay the defendants’ costs, with two defendants asking for nearly $270,000 and nearly $50,000, respectively.

In filing for costs, the first defendant categorized $243,000 of the requested amount as “other” costs, stating that the fees were to cover expenses for the eDiscovery vendor that produced the ESI. The remaining $4,500 was characterized as the costs of making copies of the data. The second defendant did not identify any costs for making copies, and categorized $34,000 of the total cost as expenses for its eDiscovery vendor.

On appeal, Judges O’Malley and Taranto followed the leads of previous cases in the Third Circuit (Race Tires America, Inc. v. Hoosier Racing Tire Corp) and the Fourth Circuit (The Country Vintner of North Carolina, LLC v. E & J Gallo Winery, Inc.) with narrow interpretation of 28 U.S.C. § 1920, which is concerned with defining costs that are and are not recoverable regarding eDiscovery. The applicable law was noted as the scope of section 1920(4), which first defined as recoverable for costs “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” Section 1920(4), amended in order to address electronic evidence, now states that recovery costs for ESI are allowed only for “the reasonable costs of actually duplicating those documents, not for the cost of gathering those documents as a prelude to duplication.”

Observation and examination of the defendants’ discovery process found that the first stage performed by the vendor was the closest in scope to the process of making copies, and therefore was recoverable. This stage includes imaging hard drives and other source media, and then processing the resultant images to extract relevant individual documents. Judges O’Malley and Taranto noted that “the statute covers costs for steps, which commonly involve an initial reproduction, that necessarily precede the creation of a final production copy: converting electronic files to non-editable formats . . . and scanning paper documents.”

However, the taxation line was drawn at “costs incurred in preparing to copy,” such as the next stage of the vendor’s process, which involved organizing the extracted documents into a database to be “indexed, decrypted, and de-duplicated, and filtered, analyzed, searched, and reviewed to determine which were responsive to discovery requests and which contained privileged information.” The defendants asked for these costs to be subject to recovery, categorizing them as “project management, keyword searching, ‘statistical previews,’ ‘auditing and logging of files and ensuring compliance with Federal Rules,’ and ‘extraction of proprietary data,’ along with other characterizations. In addition, the defendants requested that the costs of convenience actions such as buying, installing, and configuring a data-host server be relegated to the plaintiffs. The judges dismissed these costs as unrecoverable, but did classify the costs of creating “load files” – scanned images that indicate breaks in documents – as recoverable and subject to taxation.

Finally, Judges O’Malley and Taranto limited recovery costs to only the subset of documents that was actually produced by the defendants’ eDiscovery vendor. The matter was then remanded to the district court, which will consider what format was required for ESI production, and which costs were appropriate to assign to the plaintiff.

So, what do you think? Should the entirety of eDiscovery production costs be subject to taxation and awarded to the prevailing party? Is there a broader interpretation of costs related to copying electronic documents that should be considered? Please share any comments you might have or if you’d like to know more about a particular topic.

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

George Socha of Socha Consulting LLC – eDiscovery Trends

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

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

Today’s thought leader is George Socha.  A litigator for 16 years, George is President of Socha Consulting LLC, offering services as an electronic discovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support. George has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; in 2011, he and Tom Gelbmann converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and Tom Gelbmann launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle and there are nine active projects with over 300 members from 81 participating organizations.  George has a J.D. for Cornell Law School and a B.A. from the University of Wisconsin – Madison.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thanks, George, for participating in the interview!

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

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

Adam Losey of IT-Lex.org – eDiscovery Trends

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

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

Today’s thought leader is Adam Losey.  Adam is president and editor-in-chief of IT-Lex.org, a technology law not-for-profit educational and literary organization and an attorney at Foley & Lardner LLP.  Adam also served as an adjunct professor at Columbia University, where he taught electronic discovery as part of Columbia’s Information and Digital Resource Management Master’s Program.

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

There were several trends that I saw at the show this year.  I think there was more emphasis this year on data security and privacy.  I don’t think that anybody is doing anything all that differently when they’re hosting data.  I think that they were – hopefully – going through the same steps for security before, but they’re emphasizing security more in marketing.  There was a lot more emphasis on ease-of-use solutions.  Candidly, I was expecting for some of the providers that are in this space to merge or go away and I know some of that is happening, but I saw increased competition in the marketplace in a variety of fields, which surprised me a little bit, but is good for the market.  I also saw more dedicated web-based litigation hold management products out there than I had seen in the past.  Unfortunately, I wasn’t able to go by every booth, so my experience is largely anecdotal and I may have missed some other trends.

As for trends for 2014, on the legal front, I expect more litigation on spoliation.  Again, my experience is anecdotal, but I happen to handle that particular issue a lot.  I’m seeing it pop up in a lot more cases; if not spoliation itself, then requests by parties to dig into their opponents’ search and review processes, just as a matter of course in the litigation if it is of any size.  In the past, I didn’t see that for any case of any size- it typically only came up in larger cases.  I don’t know if that’s decreased trust or a “trust but verify” Reagan type of approach, but it has become the norm in my world.  These days, many people want to do discovery on your eDiscovery, again just as a matter of course.  Typically, in the past, you’d only see that come up if there was any issue or deficiency with a production where someone could point to something wrong with your efforts.  But, it may not always be appropriate to do discovery about discovery, short of any issue identified with a production.

On the vendor front, I see a lot of vendors that have “click and drag” tools and solutions for small or medium sized firms or cases, which I think are really cool and I’m looking forward to playing with some of them.  From ingest to the end, a single person or lawyer can handle everything, clicking and dragging files to get them processed.  Obviously, sometimes issues come up in processing, so I’m wondering how the vendors handle those.  But, there’s a lot of cool stuff that I saw this year that I’m looking forward to playing around with.

The last trend that I see is a lot of interest and emphasis on forensic collection from mobile devices and social media collection.  That’s no surprise because in cases that I deal with, that comes up all the time.  I’ve done plenty of collections from iPhones and other devices.  The problem is that when you have those solid state drives, collections can be a little weirder and forensics can be a little more difficult.  And, social media collection is always somewhat of a “tricky bird” for a variety of reasons, not the least of which is you sometimes have a lot of layers in that onion that make it harder to collect from those sources.

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

Excellent question.  I see some of the rules being approved.  I would want to fact check and make sure I’ve got the changes right, but I imagine that changes related to timing of depositions and number of witnesses and other minor procedural “quirks” will be passed, though I don’t see those as having a big impact on litigation.  I think that the number of hours per deposition is trimmed by an hour or two.  In all of the depositions that I’ve been involved, time of deposition is not a major controversial point.  If you can’t work that out with the other side, that doesn’t bode well.  But, for Rule 37(e), the rule that essentially creates a new standard for the imposition of spoliation sanctions, I hope that doesn’t pass.  I think it raises a lot of issues whether or not you think it’s necessary.  There’s a big issue about whether federal or state law governs this stuff.  When you’re litigating spoliation on a diversity case, it’s presumably governed by state law.  Or, so some cases say, others say “no, it’s a procedural issue, it’s governed by federal law”.  But, if they pass that rule, you suddenly have a new standard for spoliation in federal court, which will lead to all sort of nasty issues of “forum shopping” where people who destroy things will want to be in federal court, believe it or not.  Which is unusual, because there will be a standard that makes it difficult to get spoliation sanctions.

Judge Francis had a well-reasoned and superbly reasoned opinion addressing spoliation, where he held that “[The] sanction [of an adverse inference] should be available even for the negligent destruction of documents if that is necessary to further the remedial purpose of the inference. It makes little difference to the party victimized by the destruction of evidence whether that act was done willfully or negligently. The adverse inference provides the necessary mechanism for restoring the evidentiary balance. The inference is adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss.” (Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y. 1991)).

It does not matter whether the spoliator was a “cackling villain twirling his mustache” or an innocent employee that pressed the wrong button.  Spoliation addresses prejudice a party suffers as a result of the destruction of evidence needed to prove a case. It doesn’t really matter to the victim what the other party’s intent was.  You just want to be put in the position where you would have been if the evidence had not been destroyed.  So, the law until now in most jurisdictions (which I think had it right) said that if you have possession, custody and control of the ESI and you knew that you should have preserved it and it gets destroyed, we’re not going to shy away from leveling the playing field based on that.  The new Rule 37(e) is going to make it night impossible for some judges to keep the playing field level.

I’m not sure if that is going to pass or not, I have no special insight into that process or those committees.  But, although we do have some chaos now in that there are different standards in different jurisdictions, but I like for judges to have flexibility generally.  I think that “bright line” rules, while they may initially have some attractiveness in uniformity, take away flexibility from the good judges we have, who are smart people.  With flexibility, I think you see justice more than if you have a hard iron rule and the conflict of law issues that are going to come up as a result will be tricky.

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

Well, again, my observations are anecdotal.  I’ve “drank the Kool-Aid” like many people that you’re probably interviewing.  So, most of the people that I deal with have some knowledge of eDiscovery.  But, in the Bar at large, I do think things are getting a lot better.  I think that the big barrier to education in a lot of cases is that you get a lot of eyes glazed over by a certain type of person when you start to talk about eDiscovery.  Much like my eyes might glaze over if you talk about particular provisions of the partnership tax code.  Some people love tax law – I have a friend that I went to law school with that is enamored with tax law and he’s an awesome tax lawyer.  And, he really likes that, but he doesn’t like eDiscovery.  So, it’s “different strokes for different folks”

Unfortunately, unlike partnership tax law, if you’re going to be litigating, you have to know about eDiscovery.  Ironically, my first trial was in Tax Court, on a pure tax issue, and some pretty major eDiscovery issues popped up in the middle of trial in a dramatic, surprising, way – so even the tax litigator needs to know eDiscovery basics.  So, the real challenge on eDiscovery education isn’t reaching the people who already follow this and already read the blogs – they’re well versed in it.  It’s important to provide something that’s funny and entertaining, if you can, so that you can bridge that interest gap with either humor or writing or presentation skills.  I think a lot of organizations are doing that and I feel that more people know about it now.  Certainly, the judiciary does.  The judges are very well versed in a lot of eDiscovery issues, at least generally.

But, at firms, there are some folks that don’t want to learn it, but realize it’s important, so they delegate.  In most situations, I don’t see anything wrong with that.  If you have a senior trial lawyer that’s in his 80s and he’s an excellent presenter and trial lawyer, but does not want to handle the “nitty-gritty” of eDiscovery and he brings someone on to handle that for him, I don’t see anything wrong with that.  The rules of professional conduct, at least in Florida, allow that too.  In competence, we have an ethics opinion in Florida (I think it’s 0602) that says you have a duty to competence that extends to an understanding of eDiscovery.  I think 0602 talks about metadata scrubbing and emails, but one of the ways that you can make up that competence shortfall is by involving other lawyers and having them help with the things you don’t know or understand, and I don’t see anything wrong with that.  I’ve seen a lot of companies actually (and I agree with this and love doing it), have firms or individuals just to serve as eDiscovery counsel to look over the shoulder.  They may use different firms for different litigations, but they want somebody that knows how the business works really well that can look over the shoulder of outside counsel or in-house folks in every case, which I think is a good trend.

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

There are a couple of quick points that I’d like to hit on with IT-Lex.  One, for law students and young lawyers, we have the highest paid cash prize writing competition in the country.  So, if you are a law student or know a law student, by all means, check it out or send them the link.  The cash prize is big, but it’s not the biggest part of the prize – the real prize is that the winner gets to headline at the Innovate conference, which is a huge career springboard.  Plus, they get invitations to become members.  So, I really want to emphasize the writing competition.

On top of that, our Innovate conference is going to be coming up October 9 and 10 of this year, so we’d love to see people there.  If you want to sign up as a friend of IT-Lex, you can do so for free and we always welcome involvement from folks in the community with what we do.  So, look at what we do and don’t be shy to reach out is the quick message.

Thanks, Adam, for participating in the interview!

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

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

ASU-Arkfeld eDiscovery and Digital Evidence Conference – eDiscovery Trends

Apparently, next week is the week for eDiscovery conferences.

Last week, I told you about a two-day program being hosted next week in my hometown of Houston by The Sedona Conference®.  Then, on Tuesday, I told you about the Second Annual Electronic Discovery Conference for the Small and Medium Case, hosted by the Levin College of Law at the University of Florida and EDRM also next week.  Now, here is another conference alternative for next week – the Third Annual ASU-Arkfeld eDiscovery and Digital Evidence Conference, hosted by Arizona State University and noted eDiscovery expert Michael Arkfeld.

The conference will be held next week, March 12-14 at the Sandra Day O’Connor College of Law / Armstrong Hall at Arizona State University in Tempe, Arizona.  As the downloadable brochure states, the conference will be “[f]ocusing on the practical issues affecting the discovery and admission of electronic information.  Attendees will be participating with thought leaders and practitioners of eDiscovery on issues impacting legal professionals locally, nationally, and globally.”

The conference will include:

  • noted eDiscovery judges, including Shira A. Scheindlin (who will be giving the keynote address on the first morning), John Facciola, and Craig Shaffer;
  • knowledgeable in-house counsel and eDiscovery specialists, including Robert Amicone from Office Depot, Tom Morrissey from Purdue Pharma and Kit Goetz from Qualcomm;
  • distinguished outside counsel, including Robert Singleton from Squire Sanders, Mark Sidoti from Gibbons, Joy Woller from Lewis Roca Rothgerber, Maura Grossman from Wachtell, and Ariana Tadler from Milberg and;
  • dedicated litigation support professionals including Tom O’Connor, Steven Goldstein, and Anne Kershaw.

Topics run the full range of the eDiscovery life cycle – from information management strategies to dispose of “zombie data” (I like that term) to meet and confer, preservation, collection, data analytics and technology assisted review, production formats, eDiscovery for criminal cases and cross-border issues and eDiscovery project management best practices.  You can earn up to 15 hours of CLE credit for attending.

It’s too late for early bird pricing, but regular attendees can still register prior to the show for $595.  Government, non-profit and paralegal registrants can do so for $345; if you’re a student, it only costs $95 to attend.  Those rates are $695/$395/$115, respectively, if you wait until the day the show starts.  Discounted group rates are also available.  You can register for the conference online here.

So, what do you think? Do you plan to attend the program, or perhaps one of the other programs next week? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Alon Israely, Esq., CISSP of BIA – eDiscovery Trends

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

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

Today’s thought leader is Alon Israely.  Alon is the Manager of Strategic Partnerships at Business Intelligence Associates, Inc. (BIA) and currently leads the Strategic Partner Program at BIA.  Alon has over eighteen years of experience in a variety of advanced computing-related technologies and has consulted with law firms and their clients on a variety of technology issues, including expert witness services related to computer forensics, digital evidence management and data security.  Alon is an attorney and a Certified Information Systems Security Professional (CISSP).

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

Once again, I did not see much differentiation between different exhibitors.  There was nothing that stood out to me as being a groundbreaking differentiator.  That said, it seemed a lighter show, less people.  But, even though it was a lighter number of attendees, the caliber of attendees seemed a bit higher.  This is all coming from my gut as I have no real numbers or metrics to back this up, but, the conversations we had at our booth seemed, on average to be a little more substantive than in previous years.

As for trends, there seems to be more discussion about the high-tech trends, such as cloud computing and analytic technologies.  Instead of people talking about these technologies generally, it seemed as though people were talking about these technologies more specifically.  Not to say that they were differentiated, they were still non-differentiated.  But, there were more people talking about cloud technologies and there was a big CLE about it.  And, more people were talking specifically about analytics, not just saying “you can do all of this culling”, but showing specific examples, with charts, graphics and other neat elements that indicate searching/analytics results.  So, there seemed to be a bit more specificity around technology and, together with that, advanced technology.  But, to be honest with you, there was nothing at the show that really blew my mind.  Nothing that was groundbreaking, nothing that looked like it would initiate a shift in the industry.  If anything, it felt like, other than the few specifics around high-tech, similar to previous years.

I will say that some of the attendees that I talked to, some of the GCs and outside counsel firm attorneys, said they spent more time inside the educational components at LegalTech instead of the exhibit hall.  So, as an exhibitor, that doesn’t make me overly happy to see that, but, as a knowledge leader in the industry, I’m very happy to see that.  I know that ALM has always tried to do a good job with the educational components.  And, I think this year attendees took that part of it more seriously than in the past several years.  It seemed that most of the networking that my BIA colleagues and I did was at the educational sessions, not necessarily on the floor.  I think that’s a positive indicator for the people who made it to the show.

As for general trends in 2014, I think you will see corporations start to take control of their technology, not only for in-house solutions, but also for the solutions that outside counsel will be providing to them.  Today, corporations tend to trust their outside counsel firms as to the review tools and other technologies that they use, but I think that it will be much more of a coordinated effort going forward.  The level of maturity for corporations around eDiscovery is being raised.  What the means in practical terms is that they will work more closely with their trusted vendors.  I don’t believe that corporations are going to bring everything in-house and that vendors will be out of luck, though a lot of other people believe that will happen.  I believe that services business for eDiscovery will remain strong for the next decade or longer and the dynamic of obtaining those services will morph into the corporation sitting side-by-side with the law firm making those services decisions.

That trend was evident at the show: you heard it from different vendor booths and the way that they were pitching their products and you heard it from actual in-house attorneys that were attending.  I saw at least two cases where the GC and his outside counsel attorney were walking around the show together – hopefully, the GC wasn’t getting charged for that time!  You’re starting to see corporations take more control of the reins, but not in the way we always thought where they dictate to the outside counsel what vendors to use.  Instead, it’s much more of a collaborative effort and I think you’ll see much more of that over the next several years.

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

I see those being incredibly important.  The more we can get specificity around what needs to happen early in a case and the more that specificity can be codified, the better off we will all be.  If you look at all of the wasted money spent over the last few years, some of that is solved by the new rules, specifically in the area of preservation.  We’re in the business of selling preservation software, so I’m excited about the potential changes.

But, if I step out of that personal perspective, the changes still make a lot of sense because, today, you still have a lot of effort being spent by parties figuring out legal hold and preservation issues.  Who was put on hold, when were holds put in place, what data was and was not preserved.  That usually happens when a problem occurs – you have a peak of expensive lawyering and legal maneuvering with motions practice, etc and typically when it’s already too late.  So, some of these new rules which are focused on discussions early in the case with respect to preservation should nip a lot of that in the bud.  Now, instead of fighting four months later after discovery closes whether some system was preserved or not, that should get covered early-on with some of the new rules that will hopefully go into effect.  So, I’m very excited about the rules changes, not only as a vendor in the space, but also as a legal professional in general.  The more efficiency that you can create early in the matter, the more money you can save and the more you can focus on the substantive issues and on the merits of the case.

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

I do wholeheartedly agree.  Our industry is funny because the cost of goods sold for eDiscovery solutions and services is higher than for most other industries else because of the fact that we have to educate with almost every sale.  There are a lot of resources out there, including efforts by many respected thought leaders and all of the great blogs out there, and many providers have an educational component to their website.  So, you’re right that there are a lot of quality resources for attorneys at their fingertips, yet there are still so many attorneys that simply don’t understand it.  Most of the small business and solo practitioners market doesn’t understand eDiscovery and many GCs of mid-sized corporations don’t either.  And, frankly neither do many “corner office” partners at Amlaw200 firms.  They know about it at a high level and understand that it’s important, but they don’t know enough detail.  But, the good news is that with the advent of those educational resources and the fact that every eDiscovery provider and vendor teaches as they sell, those legal professionals don’t need to learn that much – even getting four or five feet “underneath the water” instead of thirty feet under would be helpful.

As to why they don’t know more, I don’t know.  Maybe attorneys are so used to having experts to rely on and because they feel they know enough about eDiscovery, that they don’t need to know any more detail or process understanding unless a problem arises.  I don’t have an explanation as to why, with all of these great resources available, that most legal professionals don’t have more knowledge.  Unless it’s just that they have a “technology block” and are still afraid of the technology aspects of that knowledge base.  To improve things, I believe that vendors will continue to have to sell in an educational manner, with one half of the sale educating the attorney and the other half focused on closing the deal.  And, hopefully more law schools will continue to incorporate eDiscovery into their curriculum.  But, I don’t see the issue of more knowledge across a wider audience of legal professionals getting a whole lot better anytime soon.

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

BIA continues to be focused on bringing the best technology and workflow that we can to the left side of the EDRM model – such as legal hold, preservation and ECA.  Legal hold activities such as notifying and tracking employees, interviewing custodians and creating questionnaires to do so, and suspending practices such as email auto deletion, and collection of ESI is what we’re all about.  We’ve been really integrating those areas of the left side of the EDRM into one another.  Today, TotalDiscovery employs much more of a circular workflow than it did even a year ago.  It used to be much more siloed – you would implement a legal hold and then do a custodian questionnaire and the collection.  Now, we’ve integrated those steps a lot more.  Hold flows into the questionnaire process, you can seed collections with data from the questionnaires, and so forth.  We’re also continuing to serve up as much intelligence on the data as possible.  You don’t have to wait until you get further down the right side of the model to understand the type of data you have or how much you have.  Obviously, you still need to be able to have a good review tool to perform real hard core research and analysis, but to the extent we can help attorneys more knowledgeable about their data before they get to review, the better it will be for them.  That’s our goal.  So, a lot of that comes from integrating different parts of the process and not focusing on just one area of the process, but gleaning intel from all of them and summarizing at a high level for the attorney.  Also, our enterprise features are really strong and not something we talk about a lot (but we probably should) – stuff like connecting to Active directory, Exchange and other systems – real simple to do as a default configuration.

Also, our flat fee pricing model is a source of pride for us and it’s been very successful.  Flat-fee pricing, unlimited use of functionality and overall budget predictability are values we offer and guarantee – which is unique in the market.  Also, one of the good things about BIA is that we’re a technology company and we’re always adding features – we’ve now moved to a tighter cycle with a new feature or function added every four to six weeks.  Sometimes it’s a small feature, at other times, it’s a large feature we’ve been working on for a while.  It keeps it very fresh and we’re able to do so because of the way we’ve built the product with the cloud and web technologies that we use  So, BIA continues to focus on what we’re good at – improving the workflow and functionality for the tasks compelled by companies on the left side of the EDRM model, leading up to review.

Thanks, Alon, for participating in the interview!

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

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

eDiscovery Conference for Small to Medium Cases – eDiscovery Trends

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

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

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

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

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

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

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

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

Laura Zubulake, Author of “Zubulake’s e-Discovery” – eDiscovery Trends

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

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

Today’s thought leader is Laura Zubulake.  Laura worked on Wall Street for 20 years in institutional equity departments and, in 1991, authored the book The Complete Guide to Convertible Securities Worldwide. She was the plaintiff in the Zubulake vs. UBS Warburg case, which resulted in several landmark opinions related to eDiscovery and counsel’s obligations for the preservation of electronically stored information. The December 2006 amendments to the Federal Rules of Civil Procedure were influenced, in part, by the Zubulake case. In 2012, Laura published a book titled Zubulake’s e-Discovery: The Untold Story of my Quest for Justice, previously discussed on this blog here and she speaks professionally about eDiscovery topics and her experiences related to the case.

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

As far as what I saw last week, there was an increase in focus on Information Governance over last year’s conference. There was also a continued interest in eDiscovery.  What I found particularly interesting is that some of the larger vendors put less emphasis on Information Governance than they did last year and more on eDiscovery this year. When I went to the vendor booths and talked to them about actual business, I got the sense that several have taken a step back from Information Governance and refocused their efforts on eDiscovery. I’m not saying this is the case with all of them, but several of them.  I was not able to find out a reason why, but I surmised from my conversations that monetizing, or creating a business around Information Governance has been difficult for some vendors. It seems they find it easier to generate business with eDiscovery.  This intrigued me.

I’m looking at it more from a business standpoint than a legal or a conference agenda standpoint. In other words, how are they actually making money in this industry? It’s still predominantly in eDiscovery, not Information Governance. I think part of that has to do with the state of the economy, which is not great and it’s difficult trying to get clients to buy certain services at this time. Information Governance is probably a tougher sell than certain technologies you have on the eDiscovery side.  This creates a real business opportunity.  Over time I think the focus will shift towards Information Governance.  Corporations will realize that eDiscovery is a subsector of Information Governance and that Information Governance is a more efficient and effective investment.

Other things that I did see at the show: clearly there was an emphasis on big data, which was expected. When I looked at the tracks, the topics included Risk and Compliance, eDiscovery, Information Governance and technology in general. This seemed to be a continuation of those topics from last year’s show – again except for Information Governance, where I did see an increased focus.

I was surprised that I didn’t see more attention in areas like healthcare, which I would have expected — given what’s going on in the country and given the planned to shift from ICD-9 to ICD-10. Although now I guess there’s a little bit of a debate about that. But, I would have thought that there would have been more emphasis on healthcare.  

As for a prediction for next year and the coming years, I think that healthcare is going to become a major focus – for Information Governance in particular.   To continue on this, it would be interesting to see other detailed sector analysis.  That is, how Information Governance (particularly in light of industry regulations) could affect the finance, utilities, and energy sectors.

I also think you’re going to see – and people have different names for this – more emphasis on applying algorithms to Information Governance and not just for eDiscovery. People use the term “predictive coding” to refer to applying algorithms to eDiscovery efforts and with Information Governance, some people call it “auto-classification.”  Essentially, it’s taking a macro view and using algorithms to help companies organize and manage their data, from the top down. So, I think you’ll start seeing more discussion on not just predictive coding for EDD, but also algorithms for Information Governance efforts.

I would say the “Internet of things” (I guess everybody has their own way to describe that) is going to become more of a focus as well. For example, Google recently purchased Nest. If you think of the implications of that, Google is going to have access to data within your home. So, I think as the “Internet of things” expands, that’s going to become more of a focus for Information Governance, eDiscovery and Risk and Compliance type issues.

Cyber security will be another trend, obviously. Security and privacy issues with regard to healthcare and the security of data at every level, whether it’s your home or business, will become increasingly important.

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

I contributed comments to the website. In fact, I sent my book to Senator Coons, who is in charge of the committee and I have been in contact with other individuals involved in the discussion.  I think it’s important for the decision makers to appreciate what it’s like for an individual to go through litigation. While no one wants to be in that situation, it can happen to anyone.  I’m not so sure the amendments will be approved this year — maybe by the end of this year or next year.  My personal concern is that most of what I’ve read about the debate has been dominated by the defense side.  I’m not sure that the plaintiff side has been thoroughly represented. That was the concern that I voiced when I added my comments to the website.  While I understand the business and cost implications of eDiscovery, I believe the plaintiff ‘s side needs to be properly represented in the talks. With regard to the nature of the proposals, restricting the number of depositions, having certain restrictions on time, etc., I think it’s going to make it more difficult for an individual to stand up for their rights, to actually take a stand.  

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

Generally, I agree. Based on what I’ve read, there appears to be a significant segment of the legal community that is not well informed. What do I think can be done to improve the situation? Obviously, continue to educate.   Unfortunately, I think that there are many people that won’t take the time to learn new things until they’ve been thrown into a situation and forced to learn. That’s sad, because eDiscovery has been around for so long now. It should really be part of the conversation. Law schools need to include it in their curriculum somehow so that all law students become familiar with it at some level. Also, perhaps requiring continuing education for lawyers solely dedicated to eDiscovery where they sit in classes instead of just attending a conference. When you have to take an exam and answer questions, that’s when you’re forced to learn something.

Thanks, Laura, for participating in the interview!

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

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