Close
Enter your
text here

Electronic Discovery

EDRM Wants You! – eDiscovery Trends

A lot is happening in the Electronic Discovery Reference Model (EDRM) group lately and this blog has reported several accomplishments in just the last few months.  With so much going on, you would think they don’t need any help to get things done, but, in fact, EDRM wants your help.

In their latest press release, EDRM has announced its fall campaign for new members. As the press release states, EDRM is offering memberships to individuals and organizations that wish to contribute to the overall improvement of the electronic discovery process by participating in the development and delivery of guidelines, standards, and new resources to the electronic discovery industry.

Since its inception in 2005, EDRM has comprised more than 260 member organizations representing every aspect of eDiscovery and information governance. Attorneys, IT professionals, litigation, and eDiscovery directors and others from corporations, law firms, government, consulting firms, software companies, and service providers are welcome to join EDRM. Members select projects in which to participate based on their individual areas of interest.

The objective of the EDRM Membership Drive is to expand the array of talent and expertise to continue development of practical resources from EDRM by broadening membership from all areas of the electronic discovery industry: providers of software and services, corporations, law firms, educational institutions, and individuals.

Having been a member for most of the 8+ years since EDRM was founded, I can personally say that participating in EDRM is rewarding, not only from a standpoint of helping to shape the direction of the industry, but also in terms of the ability to network with other industry professionals.  It appears that despite the fact that more than half the attendees at this year’s annual meeting were first time attendees, EDRM is still looking for more new members.

Information about EDRM memberships is available here. EDRM will also be hosting a series of webinars in the coming weeks to provide information about the organization and current opportunities for participation to individuals and organizations interested in learning more or considering a new membership.

Since the annual meeting back in May, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.  With so much going on and the Mid-Year meeting coming in October (9th through 11th), now is a great time to get involved.

So, what do you think?  Are you a member of EDRM or another organization focused on eDiscovery best practices?   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.

Uninformed Attorneys Are Not in Kansas Anymore – eDiscovery Trends

Well, at least, they have additional resources to become better informed…

“Since March 2012, the U.S. District Court for the District of Kansas has been involved in an intense effort to find ways to ensure that civil litigation actually is handled in the “just, speedy, and inexpensive” manner contemplated by Rule 1 of the Federal Rules of Civil Procedure.”  That quote is from a Rule 1 Task Force Update, issued by the U.S. District Court in Kansas regarding efforts to create newly released guidelines for electronic data discovery.

This Rule 1 project was “spearheaded” by the court’s Bench-Bar Committee of three lawyers and two federal judges, working “in close consultation with two nationally recognized experts on the federal rules and a diverse assemblage of experienced and respected trial lawyers from throughout Kansas”.  There were six working groups formed to make recommendations in the following areas (nearly all of the recommendations were approved by the Bench-Bar Committee and in turn by the court):

  1. Overall civil case management;
  2. Discovery involving electronically stored information (ESI);
  3. Traditional non-ESI discovery;
  4. Dispositive-motion practice;
  5. Trial scheduling and procedures; and
  6. Professionalism and sanctions.

The guidelines promote limiting the scope of eDiscovery and resolving of discovery disputes without judicial intervention, stating “The failure of counsel or the parties in litigation to cooperate in facilitating and reasonably limiting discovery requests and responses increases litigation costs and contributes to the risk of sanctions.”  The guidelines also recommend native productions (over spending time or money to convert documents to PDF or TIFF format), production of documents with non-privileged metadata intact and appointment of an eDiscovery liaison who is both familiar with the party’s ESI systems and capabilities and eDiscovery knowledgeable to facilitate the process and participate in dispute resolution.

The Rule 1 Task Force documents include:

  • Initial Order Regarding Planning and Scheduling: Two page model order with fill-in-the-blank sections for customized info;
  • Rule 26(f) Report of Parties’ Planning Conference: Ten page model filing of a sample Rule 26(f) report;
  • Scheduling Order: Twelve page model scheduling order;
  • Pretrial Order: A one page Pretrial Order form, followed by a seven page pretrial order (8 pages total);
  • Guidelines for Cases Involving Electronically Stored Information (ESI): A ten page set of guidelines, followed by a two page appendix, containing a reprint of a 2008 article by Craig Ball (Ask and Answer the Right Questions in EDD) with 50(!) questions to ask your opponent;
  • Guidelines for Agreed Protective Orders (with pre-approved form order): Four pages of guidelines, followed by a one page instruction on use of the model form protective order and the thirteen page model order;
  • Summary Judgment Guidelines: Two page list of summary judgment guidelines;
  • Proposed Technical Amendments to Local Rules: Seven pages of local rules with amendments (including strikeouts of words and sentences) as appropriate.

Oddly enough, the task force documents are in imaged, but text-enabled (with OCR) PDF form.  It would be great if they could provide a fully electronic PDF form for the documents, even better if they could provide form enabled versions of the model orders.  Just sayin’.

So, what do you think?  How do the Kansas guidelines compare to those for your state?   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.

Can You Figure Out How I Wrote this Blog Post? – eDiscovery Trends

I have to be honest, this blog post contains quite a bit of content from one of the early posts from this blog.  However, there is something different about this version of the content – it looks a bit unusual.  Can you figure out how I wrote it?  See if you can figure it out before you get to the bottom.  I promise I haven’t lost my mind.

Types of exceptions file

It’s important to note that efforts to quote fix quote these files will often change the files parentheses and the meta data associated with them parentheses, so it’s important to establish with opposing counsel what measures to address the exceptions are acceptable. Some files may not be recoverable and you need to agree up front how far to go to attempt to recover them.

  • Corrupted files colon files can become corrupted 4 a variety of reasons, from application failures 2 system crashes to computer viruses. I recently had a case where 40 percent of the collection what’s contained in to corrupt Outlook PST file dash fortunately, we were able to repair those files and recover the messages. If you have read Lee accessible backups of the files, try to restore them from backup. If not, you will need to try using a repair utility. Outlook comes with a utility called scan PST. Exe that scans and repairs PST and OST file, and there are utilities parenthesis including freeware utilities parenthesis available via the web foremost file types. If all else fails, you can hire a-data recovery expert, but that can get very expensive.
  • Password protected files colon most collections usually contain at least some password protected files. Files can require a password to enable them to be edited, or even just to view them. As the most popular publication format, PDF files are often password protected from editing, but they can still be feud 2 support review parenthesis though some search engines May fail to index them parenthesis. If a file is password protected, you can try to obtain the password from the custodian providing the file dash if the custodian is unavailable or unable to remember the password, you can try a password cracking application, which will run through a series of character combinations to attempt to find the password. Be patient, it takes time, and doesn’t always succeed.
  • Unsupported file types corn in most collections, there are some unusual file types that art supported by the review application, such as file for legacy or specialized applications parenthesis E. G. AutoCAD for engineering drawing parenthesis. You may not even initially no what type of files they are semi colon if not, you can find out based on file extension by looking the file extension up in file ext. If your review application can’t read the file, it also can’t index the files for searching or display them 4 review. If those file maybe responses 2 discovery requests, review them with the natives application to determine they’re relevancy.
  • No dash text file colon files with no searchable text aren’t really exceptions dash they have to be accounted for, but they won’t be retrieved in searches, so it’s important to make sure they don’t quote slip through the cracks unquote. It’s common to perform optical character recognition parenthesis Boosie are parenthesis on Tiff files and image only PDF files, because they are common document 4 minutes. Other types of no text files, such as pictures in JTAG or PNG format, are usually not oser, unless there is an expectation that they will have significant text.

Did you figure it out?  I “dictated” the above content using speech-to-text on my phone, a Samsung Galaxy 3.  I duplicated the formatting from the earlier post, but left the text the way that the phone “heard” it.  Some of the choices it made were interesting: it understands “period” and “comma” as punctuation, but not “colon”, “quote” or “parenthesis”.  Words like “viewed” became “feud”, “readily” became “read Lee” and “OCR” became “Boosie are”.  It also often either dropped or added an “s” to words that I spoke.

These days, more ESI is discoverable from sources that are non-formalized, including texts and “tweets”.  Acronyms and abbreviations (and frequent misspelling of words) is common in these data sources (whether typed or through bad dictation), which makes searching them for responsive information very challenging.  You need to get creative when searching these sources and use mechanisms such as conceptual clustering to group similar documents together, as well as stemming and fuzzy searching to find variations and misspellings of words.

Want to see the original version of the post?  Here it is.

So, what do you think?  How do you handle informal communications, like texts and “tweets”, in your searching of ESI?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine 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.

A Technical Explanation of Near-Dupes – eDiscovery Tutorial

Bill Dimm provides a comprehensive and interesting description of near-dupes and the algorithms used to identify them in his Clustify blog (What is a near-dupe, really?).  If you want to understand the “three reasonable, but different, ways of defining the near-dupe similarity between two documents”, bring your brain and check it out.

As we discussed last month, just because information volume in most organizations doubles every 18-24 months doesn’t mean that it’s all original.  When reviewers are reviewing the same data again and again, it’s unnecessarily expensive and prone to mistakes.

As Bill notes in his post, “Near-duplicates are documents that are nearly, but not exactly, the same.  They could be different revisions of a memo where a few typos were fixed or a few sentences were added.  They could be an original email and a reply that quotes the original and adds a few sentences.  They could be a Microsoft Word document and a printout of the same document that was scanned and OCRed with a few words not matching due to OCR errors.”  I also classify examples such as a Word document published to an Adobe PDF file (where the content is the same, but the file format is different, so the hash value will be different) as near-duplicates because they won’t be de-duped with an MD5 or SHA-1 hash algorithm at the file level.  You need an algorithm that looks for similarity in the document content.

Identifying near-duplicates that contain almost the same information reduces redundant review and saves costs.  A recent client of mine had over 800,000 emails belonging to near-duplicate groupings that would have been impossible to identify without an effective algorithm to group them together.

Bill’s blog post goes on to discuss different methods for measuring similarity using mechanisms like a Jaccard index and a MinHash algorithm which counts shingles (don’t worry, they’re neither painful nor scaly).  Understanding how your near-dupe software works is important.  As Bill notes, “If misunderstandings about how the algorithm works cause the similarity values generated by the software to be higher than you expected when you chose the similarity threshold, you risk tagging near-dupes of non-responsive documents incorrectly (grouped documents are not as similar as you expected).  If the similarity values are lower than you expected when you chose the threshold, you risk failing to group some highly similar documents together, which leads to less efficient review (extra groups to review).”  His post is an excellent primer to developing that understanding.

So, what do you think?  Do you have a plan for handling near-duplicates in your collection?   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.

I Removed a Virus, Did I Just Violate My Discovery Agreement? – eDiscovery Best Practices

As we discussed last month, working with electronic files in a review tool is NOT just simply a matter of loading the files and getting started.  Electronic files are diverse, they can represent a whole collection of issues to address in order to process them for loading, and processing them effectively requires a sound process.  But, what if the evidentiary files you collect from your custodians contain viruses or other malware?

It’s common to refer to all types of malware as “viruses”, but a computer virus is only one type of malware.  Malware includes computer viruses, worms, trojan horses, spyware, dishonest adware, scareware, crimeware, most rootkits, and other malicious and unwanted software or program.  A report from 2008 stated that more malicious code and other unwanted programs was being created than legitimate software applications.  If you’ve ever had to attempt to remove files from an infected computer, you’ve seen just how prolific different types of malware can be.

Having worked with a lot of clients who don’t understand why it can take time to get ESI processed and loaded into their review platform, I’ve had to spend some time educating those clients as to the various processes required (including those we discussed last month).  Before any of those processes can happen, you must first scan the files for viruses and other malware that may be infecting those files.  If malware is found in any files, one of two things must happen:

  • Attempt to remove the malware with virus protection software, or
  • Isolate and log the infected files as exceptions (which you will also have to do if the virus protection software fails to remove the malware).

So, let’s get started, right?  Not so fast.

While it may seem logical that the malware should always be removed, doing so is technically altering the file.  It’s important to address how malware should be handled as part of the Rule 26(f) “meet and confer” conference, so neither party can be accused of spoliating data when removing malware from potentially discoverable files.  If both sides agree that malware removal is acceptable, there still needs to be a provision to handle files for which malware removal attempts fail (i.e., exception logs).  Regardless, the malware needs to be addressed so that it doesn’t affect the entire collection.

By the way, malware can hit anybody, as I learned (the hard way) a couple of years ago.

So, what do you think?  How do you handle malware in your negotiations with opposing counsel and in your ESI collections?   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.

Plaintiff Needs More Than “Mere Hope” to Discover Defendant’s Personal Info – eDiscovery Case Law

We’ve seen several cases where social media or personal data was requested – with some requests granted (including this one, this one, this one, this one and this one) and other requests denied (including this one, this one, this one and this one).  Here is another recent case where the request was denied.

In Salvato v. Miley, No. 5:12-CV-635-Oc-10PRL (M.D. Fla. June 11, 2013), a wrongful death action, Florida Magistrate Judge Philip R. Lammens denied the plaintiff’s motion to compel the defendant’s responses to discovery requests “based on Plaintiff’s very limited showing as to the relevance of the requested discovery and the broadly drafted discovery requests”.

In this case, the plaintiff sued two police officers for causing their son’s death by using excessive force and failing to provide medical treatment. During discovery, the plaintiff filed a motion to compel one officer’s responses to the discovery requests. The interrogatories in question sought information about the defendant’s cell phone numbers, e-mail addresses, social media accounts, and list-serve or message board membership. The contested requests for production sought cell phone records, including all text messages; e-mails; social media messages and other communications; and comments made on websites or message boards that related to the allegations in the plaintiff’s complaint. The defendant objected, arguing that the requests sought confidential information and invaded his privacy, sought irrelevant information and amounted to a fishing expedition, and were intended to annoy, embarrass, and oppress him.

Judge Lammens found the plaintiff “failed to make a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.” The plaintiff’s argument in support of the relevancy of the requests was that they seek “‘information about statements that Defendant Brown made about the incident at issue in this case, which could include admissions against interest, and could certainly lead to the discovery of admissible evidence.’” Judge Lammens ruled that the “mere hope” that the texts, e-mails, and other communications might contain an admission is not enough to allow the plaintiff “open access to [the defendant’s] private communications with third parties.” Accordingly, the judge rejected the plaintiff’s attempt “to conduct ‘a fishing expedition’” because he did “‘not have a generalized right to rummage at will through information that Plaintiff has limited from public view.’”

So, what do you think?  Should the motion to compel have been granted?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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.

July Pop Quiz Answers! – eDiscovery Trends

Yesterday, we gave you a pop quiz for the topics we’ve covered in the past month.  If you’re reading the blog each day, these questions should be easy!  Let’s see how you did.  Here are the answers.

 

1.  In Cottle-Banks v. Cox Commc’ns, Inc., the plaintiff’s motion for spolation sanctions was denied because:

 

A. The defendant didn’t have an obligation to preserve the call recordings

B. The defendant didn’t have a culpable state of mind

C. The plaintiff was unable to show that the deleted recordings would have been relevant

D. None of the above

 

2.  How can you ensure that Word’s smart quotes won’t disrupt your search with garbage characters?

 

A. Disable the automatic changing of quotes to smart quotes in Word

B. Perform a “find and replace” of smart quotes to regular quotes in a text editor

C. Copy the word doc into a text editor, then convert to ASCII

D. All of the above

 

3.  Which of the following is NOT a proportionality factor in the Pennsylvania Rules of Civil Procedure, as spelled out in PTSI, Inc. v. Haley?

 

A. The total net worth of the producing party at the time the case was filed

B. The nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake

C. The relevance of electronically stored information and its importance to the court’s adjudication in the given case

D. The ease of producing electronically stored information and whether substantially similar information is available with less burden

 

4.  Which proposed Federal rule to be amended would require that courts allow discovery that is “proportional to the needs of the case”?

 

A. Rule 26(b)(1)

B. Rule 26(b)(2)(C)(iii)

C. Rule 37(e)

D. Rule 37(b)(2)(A)

 

5.  In which case were the parties disputing whether an eDiscovery vendor could work for both sides in the same case?

 

A. Lazette v. Kulmatycki

B. Gordon v. Kaleida Health

C. Harry Weiss, Inc. v. Moskowitz

D. Hart v. Dillon Cos

 

6.  How many times has the EDRM Talent Task Matrix been downloaded since it was introduced in January?

 

A. Less than 250

B. More than 250, but less than 500

C. More than 500, but less than 1,000

D. More than 1,000

 

7.  Which of the following is NOT a challenge when producing documents?

 

A. Courts and opposing counsel are increasingly demanding ‘native file productions’

B. Native files can be altered (either intentionally or not)

C. Native files don’t provide enough metadata

D. Native files cannot be redacted

 

8.  Which of the following is a problem that needs to be addressed to review electronic files?

 

A. Image only electronic files such as TIFF or image-only PDF files have no searchable text

B. Outlook Emails require processing to break them out into individual files

C. In almost every collection, there are some files that cannot be processed or searched

D. All of the above are problems

 

9.  Which of the following is NOT a question that CloudNine Discovery asks our clients before processing their data?

 

A. Should de-duplication performed at the case or the custodian level?

B. Should Outlook emails be extracted in MSG or PST format?

C. What time zone should we use for email extraction?

D. Should we perform OCR for image-only files that don’t have corresponding text?

 

10. According to Rob Robinson’s eDiscovery Market Size Mashup, how big will the eDiscovery Software and Services market be in 2017?

 

A. $2.78 Billion

B. $5.53 Billion

C. $7.03 Billion

D. $9.81 Billion

 

 

How did you do?  Next month, you’ll get another chance with August topics.  As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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.

July Pop Quiz! – eDiscovery Trends

The pop quizzes on the Litigation 101 for eDiscovery Tech Professionals series were so well received, we thought we would try a pop quiz for the topics we’ve covered in the past month.  If you’re reading the blog each day, these questions should be easy!  If not, we’ve provided a link to the post with the answer.  We’re that nice.  Test your knowledge!  Tomorrow, we’ll post the answers for those who don’t know and didn’t look them up.

 

1.  In Cottle-Banks v. Cox Commc’ns, Inc., the plaintiff’s motion for spolation sanctions was denied because:

 

A. The defendant didn’t have an obligation to preserve the call recordings

B. The defendant didn’t have a culpable state of mind

C. The plaintiff was unable to show that the deleted recordings would have been relevant

D. None of the above

 

2.  How can you ensure that Word’s smart quotes won’t disrupt your search with garbage characters?

 

A. Disable the automatic changing of quotes to smart quotes in Word

B. Perform a “find and replace” of smart quotes to regular quotes in a text editor

C. Copy the word doc into a text editor, then convert to ASCII

D. All of the above

 

3.  Which of the following is NOT a proportionality factor in the Pennsylvania Rules of Civil Procedure, as spelled out in PTSI, Inc. v. Haley?

 

A. The total net worth of the producing party at the time the case was filed

B. The nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake

C. The relevance of electronically stored information and its importance to the court’s adjudication in the given case

D. The ease of producing electronically stored information and whether substantially similar information is available with less burden

 

4.  Which proposed Federal rule to be amended would require that courts allow discovery that is “proportional to the needs of the case”?

 

A. Rule 26(b)(1)

B. Rule 26(b)(2)(C)(iii)

C. Rule 37(e)

D. Rule 37(b)(2)(A)

 

5.  In which case were the parties disputing whether an eDiscovery vendor could work for both sides in the same case?

 

A. Lazette v. Kulmatycki

B. Gordon v. Kaleida Health

C. Harry Weiss, Inc. v. Moskowitz

D. Hart v. Dillon Cos

 

6.  How many times has the EDRM Talent Task Matrix been downloaded since it was introduced in January?

 

A. Less than 250

B. More than 250, but less than 500

C. More than 500, but less than 1,000

D. More than 1,000

 

7.  Which of the following is NOT a challenge when producing documents?

 

A. Courts and opposing counsel are increasingly demanding ‘native file productions’

B. Native files can be altered (either intentionally or not)

C. Native files don’t provide enough metadata

D. Native files cannot be redacted

 

8.  Which of the following is a problem that needs to be addressed to review electronic files?

 

A. Image only electronic files such as TIFF or image-only PDF files have no searchable text

B. Outlook Emails require processing to break them out into individual files

C. In almost every collection, there are some files that cannot be processed or searched

D. All of the above are problems

 

9.  Which of the following is NOT a question that CloudNine Discovery asks our clients before processing their data?

 

A. Should de-duplication performed at the case or the custodian level?

B. Should Outlook emails be extracted in MSG or PST format?

C. What time zone should we use for email extraction?

D. Should we perform OCR for image-only files that don’t have corresponding text?

 

10. According to Rob Robinson’s eDiscovery Market Size Mashup, how big will the eDiscovery Software and Services market be in 2017?

 

A. $2.78 Billion

B. $5.53 Billion

C. $7.03 Billion

D. $9.81 Billion

 

 

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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.

Five eDiscovery Trailblazing Judges – eDiscovery Trends

Yesterday, we discussed an article in The American Lawyer by Alan Cohen about six people who deserve special consideration as true trailblazers in eDiscovery.  Today, let’s take a look at five trailblazing judges in eDiscovery.

In Lisa Holton’s article (E-Discovery: A Front-Row Seat), also in The American Lawyer, she discusses how “judges…saw how uninformed many attorneys and their clients were about technology and how resistant they were to a series of new rules.”  She profiles five “pioneers” that “have not only set the stage in procedure and case law, but have become teachers, writers, activists, and ongoing critics of this rapidly changing industry.”  Here they are:

Shira Scheindlin, Judge, U.S. District Court for the Southern District of New York: Perhaps the most famous judge of the most famous case, Zubulake v. UBS Warburg, (which addressed legal holds on electronic documents) Judge Scheindlin has had a dramatic effect on shaping the industry.  She also proceeded to address the levels of culpability — negligence, gross negligence, and willfulness in the electronic discovery context in her famous Pension Committee opinion.  As Holton notes in her article, “Scheindlin’s involvement in the ongoing e-discovery pilot project dealing with complex litigation in the Southern District is an example of her continuing work to shape and improve e-discovery processes. And she’s been vocal on the issue of proportionality—the need to balance the total cost of electronic document discovery with the value of the case—from the start.”  She has also been a busy speaker on eDiscovery topics and co-published a book back in 2009 called Electronic Discovery and Digital Evidence in a Nutshell.

Lee Rosenthal, Judge, U.S. District Court for the Southern District of Texas: After being elevated to chairman of the Judicial Conference Advisory Committee on Federal Rules of Civil Procedure in 2003, Judge Rosenthal led the effort to create and adopt the 2006 amendments to the rules that addressed – for the first time – how electronically stored information (ESI) should be handled in civil litigation.  These Federal Rules have been instrumental in providing guidance to attorneys and judges on how to address issues with ESI, and the article provides some interesting “backstory” regarding that process.

Andrew Peck, U.S. Magistrate Judge, Southern District of New York: Judge Peck has been a leader in the effort to use technology to assist with the searching and review process and his February 2012 decision in Da Silva Moore v. Publicis Groupe & MSL Group is considered by many to be the first ruling approving computer-assisted review (click here for the considerable dispute that has followed) and his article Search, Forward is one of the few judicial articles advocating the use of computer-assisted review, which has become perhaps the hottest topic in eDiscovery today.

Paul Grimm, Judge, U.S. District Court for the District of Maryland: Judge Grimm has been a key advocate for proportionality and cooperation in the eDiscovery process.  His ruling in 2008’s Mancia v. Mayflower Textile Services Co. contained a detailed examination of Rule 26(g) of the Federal Rules of Civil Procedure, which covers eDiscovery duty to disclose requirements, and other law calling for cooperation among parties in discovery.  His ruling of severe sanctions in Victor Stanley, Inc. v. Creative Pipe, Inc. was also the very first case this blog covered on our very first day.  🙂

John Facciola, U.S. Magistrate Judge, U.S. District Court for the District of Columbia: Judge Facciola’s key eDiscovery opinions include: Citizens for Responsibility & Ethics in Washington v. Executive Office of the President (which forced preservation of digital media in government); United States v. O’Keefe (which set guidelines for keyword challenges); and Equity Analytics v. Lundin (which set guidelines for challenges or defenses of search methodology).  Also, In Taydon v. Greyhound Lines, Inc., he laid down the law to the parties in the case requiring cooperation on eDiscovery issues, stating “there is a new sheriff in town—not Gary Cooper, but me.”

A link to Lisa’s article is here.  So, what do you think?  How have these judicial trailblazers influenced you?   Please share any comments you might have or if you’d like to know more about a particular topic.

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

Six eDiscovery Trailblazers – eDiscovery Trends

As we discussed on Monday, the electronic discovery industry is now a multi-billion dollar industry and experiencing double-digit growth year after year.  It’s hard to believe that a couple of decades ago, this industry – for all intents and purposes – didn’t even exist.  Now it’s huge, and – as noted in Alan Cohen’s article in The American Lawyer – there are six people who deserve special consideration as true trailblazers in the industry.

Alan’s article, Present at the Creation, notes that these trailblazers “come from different backgrounds. Some are lawyers, some are technology experts, and some are a little of both. But these e-discovery leaders all share an unmistakable and seemingly unbreakable dedication to an area of the law that makes many of us scratch our heads. They have explained e-discovery, quantified it, and helped shape the rules, the case law, and even the business models. Most of the pioneers listed below have been at this for decades, but like the field itself, they’re just getting started. We still may not get as enthusiastic about e-discovery as they do, but thanks to their efforts, we’re no longer mystified by it.”  Here is a list of the eDiscovery trailblazers:

Martha Dawson, Partner, K&L Gates: In response to dealing with early 1990s electronic discovery issues in the Exxon Valdez and Microsoft antitrust litigations, Martha founded Preston Gates’s e-Discovery Analysis and Technology group (e-DAT), which was considered to be the first of its kind—a practice group dedicated exclusively to eDiscovery.  It used project-based attorneys for review that only worked on eDiscovery and who could be billed at lower rates than associates, offering clients savings of over 50 percent compared to traditional methods of document review.

George Socha, Socha Consulting & Tom Gelbmann, Gelbmann & Associates: Founders of the Electronic Discovery Reference Model (EDRM) nine years ago to standardize the definition of the eDiscovery process, the EDRM diagram has become a standard model for representing the flow of information through that process.  Since then, EDRM has delivered a number of additional models and tools to aid those in eDiscovery (including announcements this blog has covered for Model Code of Conduct, Search, Metrics, Jobs and Information Governance, to name a few).  As a member of EDRM for most of its nine years, I’ve seen a lot of accomplishments over that time.  George and Tom have also both been thought leader interviewees on this blog for the past three years.

John Tredennick, Catalyst Repository Systems: John transitioned from litigator at Denver’s Holland & Hart, to the firm’s CTO, to CEO of spin-off Catalyst Repository Systems with a vision of applying the Internet to legal technology as far back as 1996.  These days, almost everybody in the industry has experienced the benefits of cloud-based technology for eDiscovery processes such as collection and review, making it easy to access important data anywhere and share that data with other parties in the case seamlessly.  There are several vendors today offering cloud-based solutions for eDiscovery, including (shameless plug warning!) CloudNine Discovery with our OnDemand® review platform.

Jason R. Baron, U.S. National Archives and Records Adminstration: As director of litigation for the U.S. National Archives and Records Administration, Jason had to search tens of millions of White House emails as part of a discovery request by big tobacco companies in a RICO lawsuit against them.  Looking for a better approach, Jason has been a key member of the Sedona Conference and a cofounder (in 2006, with University of Maryland professor Douglas Oard), of the Legal Track at the Text Retrieval Conference (TREC).  TREC studies have been instrumental in showing the limitations of keyword search and in helping technology-assisted review win judicial approval.

Richard Braman, The Sedona Conference: As founder of The Sedona Conference, a think tank on law and policy, Braman brought together the best minds in eDiscovery to create rules for eDiscovery.  Sedona’s first working group published the groundbreaking “Sedona Principles” which are 14 guidelines for the eDiscovery process with commentary including best practices.  There are now 10 working groups on a variety of legal topics, and this blog has covered some of the guidelines, including those on Proportionality, Cooperation, Database Principles and International Principles.  The Sedona Conference continues to be a leader in best practice guidelines in the industry.

A link to Alan’s article is here.  Tomorrow, we will discuss five judges at the forefront of electronic discovery.

So, what do you think?  How have these trailblazers influenced you?   Please share any comments you might have or if you’d like to know more about a particular topic.

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