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Electronic Discovery

Here’s a Chance to Learn from the Epic Mistakes of Other High Profile Organizations: eDiscovery Best Practices

The recent eDiscovery failures at Wells Fargo and at the Department of Justice show that eDiscovery mistakes and failures happen even at the largest corporations and government agencies.  Here’s your chance to learn from their mistakes.

On Wednesday, October 25 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Lessons Learned from Recent eDiscovery Disasters. In this one-hour webcast that’s CLE-approved in selected states, we will discuss the various issues that occurred in these high-profile cases and what to do to avoid them in your own cases.  Topics include:

  • Attorney Duty of Competence
  • Managing Communications: Attorney Responsibilities
  • Managing Communications: Vendor Responsibilities
  • Recommended Workflows for Tracking Review
  • Common Redaction Mistakes and How to Avoid Them
  • Checking for Personally Identifiable Information (PII)
  • Key Takeaways for Better eDiscovery Project Management

I’ll be presenting the webcast, along with Tom O’Connor, who is now a Special Consultant to CloudNine!  If you follow our blog, you’re undoubtedly familiar with Tom as a leading eDiscovery thought leader (who we’ve interviewed several times over the years) and I’m excited to have Tom as a participant in this webcast!  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  It just might keep you from being mentioned in The New York Times – not in a good way.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

So, what do you think?  Do you know any other eDiscovery “epic fail” stories?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Avoiding Glittering Generalities in Selecting eDiscovery Software – Considering Security: eDiscovery Best Practices

Editor’s Note: If you read our blog regularly, you know that we frequently reference my friend and CloudNine colleague Rob Robinson’s excellent blog, Complex Discovery for various industry information, including quarterly business confidence surveys, eDiscovery software and service market “mashups” and information about industry mergers and acquisitions (among other things).  We’ve been discussing aspects of on-premise and off-premise eDiscovery offerings quite a bit lately (including this recent webcast conducted by Tom O’Connor and me a few weeks ago) and Rob has written a terrific article on the subject which he has graciously allowed me to publish here.  This is the second part of his multi-part article (part 1 here) – we will publish it in a series over the next couple of weeks or so.  Enjoy! – Doug

Considering Security

“Distrust and caution are the parents of security.” Benjamin Franklin

The security of data is fast becoming one of the most prominent and visible areas of concern in the selection of eDiscovery software solutions. With public examples of data security failures increasing in regularity and impact, it behooves any discovery solution decision maker to carefully consider how they manage this important risk factor and make decisions based on facts.

Control of data, applications, servers, storage, and network connectivity behind an organization’s firewall has traditionally been viewed as the most secure of available eDiscovery solution deployment options. In this on-premise security approach, an organization has complete control of data and all the elements that might act on the data in the course of eDiscovery. For organizations that have an established security infrastructure, on-premise offerings appear to be a safe approach to eDiscovery security as they minimize security risk through the exercise of direct control of data.  The on-premise approach also seems highly desirable to many organizations sensitive to data transfer regulations and privacy requirements as it ensures they maintain a direct understanding of the physical location of data and have the ability to act on that data at all times.  From an acceptance standpoint, according to a recent eDiscovery industry report from the Aberdeen Group (covered by us here), organizations are 50% more likely to have an on-premise eDiscovery solution than a cloud-based one.  With these facts in mind, it seems reasonable to conclude that an on-premise approach to security is a safe method that is and should continue to be used by many organizations as part of their eDiscovery solution even in the face of growing acceptance of off-premise alternatives.

With the mainstream acceptance of cloud computing, the off-premise approach to delivering eDiscovery software is experiencing increasing in acceptance. This acceptance is based on many attributes, one being the evidence that off-premise offerings delivered via SaaS may be able to satisfactorily address many of the security requirements previously only achievable in on-premise offerings.  Reasons for this growing acceptance of cloud-centric eDiscovery solutions as secure on-premise alternatives include but are not limited to the following security elements:

  • Sophisticated Encryption: The ability to encrypt data in various states of movement and rest.
  • Security Experts on Staff: The availability of experts to continuously monitor and address security requirements.
  • First Access to Emerging Technologies: The access to emerging technologies based on size and centralization of data.

These elements of security are increasingly available in cloud offerings and are helping make the use off-premise eDiscovery solutions acceptable when viewed through the lens of security.

There are also different types of cloud implementations that may contribute to the overall security of a particular cloud-centric solution. There are pure public clouds that operate exclusively on a public cloud infrastructure and are delivered by companies such as Amazon, Microsoft, and Google. There are also private cloud solutions that combine the economic and access benefits of pure public cloud solutions with the added security of provider-owned resources that allow for determination of the exact physical location of data at any time. This ability to reach out and physically locate client data is a desirable security attribute of private clouds, especially in light of increasing regulatory and legal requirements around the disposition and disposal of personally identifiable information.

Given the current state of security of most public and private cloud eDiscovery offerings, it seems reasonable to suggest that there are many appropriate cloud-based offerings from a solely security-centric perspective.

Regardless of on-premise or off-premise approach, there are always some areas of security concern that transcend delivery approach. One example of this type of security concern is the transfer of productions outside of the firewall or cloud-secured environment to requesting parties. However, there are also many ways to mitigate even this risk through the use of secure transfer protocols, encryption, and shared access to secure servers managed with role-based access. In fact, some vendors present this concern of data transfer security argument as a reason not to consider a solution when in fact the real reason the vendor highlights this risk is that getting data out of their system is incredibly time-consuming and they want to direct users to proprietary approaches that mitigate data transfer speed deficiencies. Said differently, when evaluating software provider arguments and objections to differing security concerns, make sure you accurately understand the cause of the concern as it may be more related to performance deficiencies than security deficiencies.

Quick Takeaway: Both on-premise and off-premise offerings may be sufficient to meet organizational security requirements. However, some approaches may mitigate security risk more comprehensively than others, so it is important to understand current and potential future security requirements when selecting eDiscovery software.

Thursday, we will address the next area of evaluation, providing a consideration of capability.

So, what do you think?  What factors do you consider when evaluating and selecting eDiscovery software?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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

It’s a “Fest” of Us, For the “Best” of Us: eDiscovery Trends

See what I did there?  Frank Costanza would be proud.

We’re about three weeks out from this year’s Relativity Fest conference, conducted every year by Kcur, uh, Relativity (sorry, old habits die hard).  Relativity Fest is an annual conference designed to educate and connect the eDiscovery community and features over 160 panel discussions, as well as hands-on labs, breakout sessions, and insights from Relativity staff, Relativity users, and industry leaders.  It’s a big show with over 2,000 attendees and a lot going on.

This year, Relativity Fest is October 22 through 25 in Chicago at The Hilton Chicago (where the final scenes of the 1993 movie The Fugitive, with Harrison Ford and Tommy Lee Jones, was filmed).

As a development partner in the Relativity ecosystem, CloudNine will be the conference and will be there to provide demonstrations of our Outpost for Relativity that automatically ingests and loads data into Relativity based on your specified criteria.

Also, I will be covering the show for eDiscovery Daily, and I’m delighted to say that I will also be speaking at a session at the conference.  My session is e-Discovery in the Cloud, on Tuesday, October 24 at 11:00 am, moderated by David Horrigan, e-Discovery Counsel and Legal Content Director at Relativity and we will be joined by Rachi Messing, Senior Program Manager at Microsoft, Ari Kaplan, Principal at Ari Kaplan Advisors and Kelly Twigger, Founder of ESI Attorneys.

In addition to that session, there are several other interesting looking sessions at the conference, including:

  • Beer and Basics: e-Discovery 101 and Relativity Fundamentals, Sunday (10/22) at 5:30pm with David and Michael Quartararo, Director of Litigation Support at Stroock & Stroock & Lavan LLP – what goes better with eDiscovery than beer and wine?
  • e-Discovery in Asia, Monday (10/23) at 11:00am, a panel discussion with eDiscovery providers and practitioners from China, Korea, and Japan to discuss the eDiscovery legal framework in their respective countries.
  • The Judicial Panel, Monday (10/23) at 1:00pm, with David (again – he’ll be quite busy that week), along with Judge Nora Barry Fischer of the Western District of Pennsylvania, Judge Andrew Peck of the Southern District of New York, Judge Xavier Rodriguez of the Western District of Texas and (all the way from Australia) Justice Peter Vickery of the Supreme Court of Victoria (and the recent landmark TAR decision in that country) to discuss the latest legal developments in eDiscovery.
  • It’s a Small World After All: Solving Challenges in Multilingual Reviews, Monday (10/23) at 3:30pm and Tuesday (10/24) at 8:30am, experts from McDermott Will & Emery will discuss various best practices in dealing with various challenges associated with foreign language data.
  • A Practical Roadmap for EU Data Protection and Cross-Border Discovery, Tuesday (10/24) at 1:30pm, with GDPR and other cross-border challenges emerging, this should be an interesting session.
  • Plaintiffs Can Use Technology, Too!, Wednesday (10/24) at 8:30am, perspectives from a judge, a lawyer, and a technologist on successful use of technology on large received productions (and the judge is retired Judge Shira Scheindlin!).

To register to attend Relativity Fest, click here.  It’s not too late!  And, the Cubbies may still be in the baseball playoffs then(!) – though the Astros are going to win it all this year, just sayin’… :o)

So, what do you think?  Are you attending Relativity Fest this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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

Avoiding Glittering Generalities in Selecting eDiscovery Software: eDiscovery Best Practices

Editor’s Note: If you read our blog regularly, you know that we frequently reference my friend and CloudNine colleague Rob Robinson’s excellent blog, Complex Discovery for various industry information, including quarterly business confidence surveys, eDiscovery software and service market “mashups” and information about industry mergers and acquisitions (among other things).  We’ve been discussing aspects of on-premise and off-premise eDiscovery offerings quite a bit lately (including this recent webcast conducted by Tom O’Connor and me a few weeks ago) and Rob has written a terrific article on the subject which he has graciously allowed me to publish here.  This is the first part of his multi-part article – we will publish it in a series over the next couple of weeks or so.  Enjoy! – Doug

Forget the glittering generalities of opinioned providers and professionals trying to champion a particular approach to eDiscovery at the exclusion of others. The reality is that on-premise and off-premise solutions delivered as part of both emerging and mature technology implementations are and will continue to be a fundamental piece of any eDiscovery software portfolio if an organization wants to address the areas of security, capability, complexity, and cost comprehensively.

Considerations for the Selection of eDiscovery Software

One of the ongoing topics in the area of eDiscovery software revolves around assertions and attestations on what is the optimal delivery model for achieving the best balance of security, capability, complexity, and cost in an eDiscovery software offering. On one end of the spectrum, there are champions of the on-premise approach whose argument centers around security and capability and highlights that ability to deal with complex data sets is more important than how long the software has been on the market. On the other end of the spectrum, there are champions of the off-premise approach, also known as the cloud-enabled approach, whose argument centers around the speed and cost benefits of self-service discovery supported by the economics of a public cloud infrastructure. Between the ends of this spectrum reside a variety of offerings that combine attributes of both on-premise and off-premise offerings to deliver unique solutions.

So, how does one go about determining what might be the best offering to help them solve their on-going eDiscovery challenges? That is a great question and one without a single definitive answer. However, the following considerations may be helpful to eDiscovery professionals as they examine on-premise, off-premise, and combination software approaches with the goal of determining what the best-balanced solution might be for their needs.

Four Areas of Evaluation

Regardless of the type of delivery approach selected for the conduct of eDiscovery, there at least four attributes that should be considered in every solution selection. These attributes are:

  • Security: Does the solution provide the level of data protection needed for your eDiscovery effort?
  • Capability: Does the solution allow you to complete the basic tasks required for your eDiscovery effort?
  • Complexity: Does the solution allow you to complete advanced tasks required for your eDiscovery effort?
  • Cost: Does the solution address security, capability, and complexity in a cost-effective manner?

The ability to approach these attributes individually and collectively to find a solution that meets requirements, preferences, and budgets, ultimately determines whether an organization is successful from a legal, technological, and business perspective in the accomplishment of eDiscovery.  Next week, we will begin to touch on each of these areas of evaluation, beginning with a consideration of security.

So, what do you think?  What factors do you consider when evaluating and selecting eDiscovery software?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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

Court Opts for Lesser Sanction for Failure to Preserve Electronic Vehicle Data: eDiscovery Case Law

In Barry v. Big M Transportation, Inc., et al., No. 1:16-cv-00167-JEO (N.D. Ala. Sep. 11, 2017), Alabama Chief Magistrate Judge John E. Ott denied the plaintiffs’ request for default judgment sanctions for failing to preserve a tractor-trailer involved in an automobile accident and its “Electronic Data/Electronic Control Module (ECM) Vehicle Data Recorder/Black Box” and the data associated with the ECM device.  As an alternative sanction, Judge Ott indicated the intent to tell the jury that the ECM data was not preserved and to allow the parties to present evidence and argument at trial regarding the defendant’s failure to preserve the data.

Case Background

In this case arising out of a motor vehicle accident which was filed in Alabama state court and then removed to federal court, the plaintiffs sought to recover compensatory and punitive damages for their injuries and asserted claims against the trucking company and the driver of the truck.  Both defendants filed a motion for summary judgment on the plaintiffs’ claims and the plaintiffs filed a motion for partial summary judgment on the defendants’ affirmative defenses of contributory negligence, assumption of the risk, and intervening cause, as well as a “spoliation sanction” in the form of either a default judgment on the defendants’ negligence liability or an order judicially establishing certain facts against the defendants.

As a part of their motion for partial summary judgment, the plaintiffs requested a spoliation sanction against the defendants for their failure to preserve the tractor’s ECM data following the accident (or the tractor for that matter, which was sold), moving for either a default judgment on the defendants’ negligence liability or an order by the Court establishing “the speed [at] which {the driver} was driving and the maneuvers he made in the light most favorable” to the plaintiffs. In response, the defendants argued that the failure to preserve the ECM data was “well-reasoned and justifiable” and even if seen as not reasonable, didn’t warrant the imposition of sanctions. In addition, the driver defendant argued that he had no duty to preserve the tractor’s ECM data at the time of the accident or had any custody or control over the tractor following the accident.

Judge’s Ruling

In considering the request for sanctions, Judge Ott found that “Big M—but not Shaffer—is guilty of spoliation. Big M’s corporate representative, Benton Elliott, confirmed that it is Big M’s normal practice to retrieve the ECM data from a tractor if they know a collision is severe, and he admitted that there was nothing preventing Big M from preserving the ECM data in this instance.”

However, Judge Ott indicated that he was “unwilling to impose either of the severe sanctions requested by the Barrys for a number of reasons”, including 1) he was “not convinced that Big M acted with the intent to deprive the Barrys of the use of the ECM data”, that 2) “it was Big M’s impression that the Barrys were at fault for the accident”, that 3) “the Barrys have not been prejudiced to such an extent that the severe sanctions they have requested would be warranted” and 4) “the Barrys have not shown that Shaffer bears any responsibility for the loss of the ECM data.”

As a result, Judge Ott ruled that “the Barrys’ request for spoliation sanctions will be denied to the extent they have asked the Court to enter a default judgment on the Defendants’ negligence liability or, alternatively, to enter an order judicially establishing the speed at which Shaffer was driving and the maneuvers he made prior to impact in the light most favorable to the Barrys. However, as an alternative sanction, the Court intends to tell the jury that the ECM data was not preserved and will allow the parties to present evidence and argument at trial regarding Big M’s failure to preserve the data.”

So, what do you think?  Is that a sufficient sanction for failing to preserve the truck and the ECM data?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

Case opinion link courtesy of eDiscovery Assistant.

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

Want Some Tips on How to Prepare for the Rule 26(f) Meet and Confer? Join us Today!: eDiscovery Best Practices

Not only are the first days after a complaint is filed critical to managing the eDiscovery requirements of the case efficiently and cost-effectively, you need to do some prep even before the case is filed. With a scheduling order required within 120 days of the complaint and a Rule 26(f) “meet and confer” conference required at least 21 days before that, there’s a lot to do and a short time to do it. Where do you begin?  Find out today!

But first, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for our blog here.  Thanks!

Anyway, today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Holy ****, The Case is Filed! What Do I Do Now? (yes, that’s the actual title). In this one-hour webcast, we’ll take a look at the various issues to consider and decisions to be made to help you “get your ducks in a row” and successfully prepare for the Rule 26(f) “meet and confer” conference within the first 100 days after the case is filed. Topics include:

  • What You Should Consider Doing before a Case is Even Filed
  • Scoping the Discovery Effort
  • Identifying Employees Likely to Have Potentially Responsive ESI
  • Mapping Data within the Organization
  • Timing and Execution of the Litigation Hold
  • Handling of Inaccessible Data
  • Guidelines for Interviewing Custodians
  • Managing ESI Collection and Chain of Custody
  • Search Considerations and Preparation
  • Handling and Clawback of Privileged and Confidential Materials
  • Determining Required Format(s) for Production
  • Timing of Discovery Deliverables and Phased Discovery
  • Identifying eDiscovery Liaison and 30(b)(6) Witnesses
  • Available Resources and Checklists

I’ll be presenting the webcast, along with Tom O’Connor, who is now a Special Consultant to CloudNine!  If you follow our blog, you’re undoubtedly familiar with Tom as a leading eDiscovery thought leader (who we’ve interviewed several times over the years) and I’m excited to have Tom as a participant in this webcast!  To register for it, click here.  Even if you can’t make it today, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).

So, what do you think?  When a case is filed, do you have your eDiscovery “ducks in a row”?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Rule 502(d) Orders for Non-Waiver of Privilege: eDiscovery Best Practices

Tomorrow, Tom O’Connor and I will discuss the various issues to consider and decisions to be made to help you meet your discovery obligations in an efficient and proportional manner when preparing for the Rule 26(f) conference in the webcast Holy****, The Case is Filed! What Do I Do Now? (noon CT, click here to register for the webcast or to get a link to access the slides and video afterward).  One of the topics relates to an order you can file to avoid non-waiver of privilege for inadvertent disclosures (click here and here for recent examples of cases where information was inadvertent disclosed).  If you missed it before, let’s revisit the topic now.

A couple of years ago, LegalTech New York (LTNY) had several judges’ panel sessions that included several notable judges, including Judge Andrew J. Peck.  In each of those sessions, you heard this question from Judge Peck at one point during the session.

“How many of you use Federal Rule of Evidence 502(d) non-waiver orders?  Or, if you’re inside counsel, (how many) instruct your outside counsel to do so?”

For those who don’t know, here is the text of FRCP Rule 502(d): “Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.”

In one of the sessions, Judge Peck discussed the significance of Rule 502(d), as follows: “it is a rule that says you don’t have to be careful, you don’t have to show that you’ve done a careful privilege screening, and it says that if the court enters a 502(d) order, it’s a non-waiver of privilege in that case and it’s a non-waiver of privilege in any subsequent state or federal case, even with different parties.”

While making it clear that “I’m never saying that you shouldn’t be as careful as possible to protect your client’s privilege”, Judge Peck related a story of one case where a firm had a potentially privileged group of documents and the associate was reviewing the documents late at night, creating two piles – one for privileged, one for not privileged – got up to get a drink, came back and got the piles mixed up, resulting in privileged documents being inadvertently produced.  Naturally, he said, the other side “didn’t just let them off the hook” about whether that waived the privilege or not and there were motions back and forth about it, which a 502(d) order would have eliminated.

With regard to any potential downsides to filing a 502(d) order, Judge Peck made it clear that “in my mind, there is no downside to having such an order”, noting that the only downside he has heard is that “if you’re before the wrong judge, the famous Neanderthal judge that everyone worries about, that judge might say that you need to produce all your documents next week and you don’t need to do a privilege review.”  But, he dismissed that as unlikely and, noted that it is “against the rules”.

Judge Peck doesn’t just advocate use of 502(d) orders, he has provided a sample order on his page in the Southern District of New York web site, noting that “it’s a simple two paragraph order – the first paragraph gives you the 502(d) protection to the fullest extent and the second paragraph essentially says that nothing in this order will serve to prevent you from doing a careful review for privilege, confidentiality or anything else.”  He acknowledged that he “stole that paragraph from a lawyer presenting at the Georgetown conference a few years ago”.

Judge Peck also mentioned The Sedona Conference Commentary on the Protection of Privileged ESI (released three years ago, it can be downloaded here), which not only includes his sample order, but another (longer) example as well.

So, what do you think?  Do you use 502(d) orders in your cases?  If not, why not?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

When You Have a Lot of Custodians, Life Can Be a Batch: eDiscovery Best Practices

After Tom O’Connor and I hosted the webcast On Premise or Off Premise? A Look At Security Approaches to eDiscovery where we discussed the pros and cons of on premise and off premise (i.e., cloud) solutions last month (click here to check out the recording of it), I received a question from an attendee afterward, as follows: Isn’t another advantage of on premise solutions the ability to load large amounts of data from multiple custodians (i.e., multiple terabytes) to the eDiscovery platform?

Not necessarily.  For starters, not all cloud solution architectures are the same.  There are public cloud and private/protected cloud alternatives.  With a public cloud solution, the servers are controlled by the cloud provider (such as Amazon Web Services or Microsoft Azure), not by the eDiscovery provider.  Those servers could be located anywhere (even internationally), so loading data would typically be through File Transfer Protocol (FTP) or Secured File Transfer Protocol (SFTP) and would be reliant on your bandwidth and the bandwidth of the cloud provider.  Loading multiple terabytes to a public cloud solution could be extremely time consuming, perhaps excessively so.

In a private/protected cloud alternative, the servers are located in a data center controlled by the eDiscovery provider (and probably close by their offices).  To load multiple terabytes in that scenario doesn’t require FTP or SFTP, the provider can actually connect a drive provided by the client and copy the data up.  So, that is an alternative that can be essentially as fast as that of an on premise solution (because it is essentially on premise once the drive is received by the provider).

Does that mean it’s impossible to load large amounts of data to a cloud eDiscovery solution?  Not at all, if you effectively manage the data loading in multiple batches.  At CloudNine (shameless plug warning!), I can recall at least two recent clients within the past year or so that had a case with numerous (i.e., more than a hundred) custodians and those clients needed to get email stores (which had been exported out to Outlook PST files) loaded into our platform.  Because clients can load their own data (and because they didn’t check with us to see if there were faster alternatives), these two clients proceeded to load the data for their numerous custodians in multiple batches.  Because the load process is multi-threaded, they could have multiple batches going at once.

Each of the two collections was in excess of 3.5 terabytes (one was nearly 4 terabytes, at 3.92 TB), yet both clients were able to effectively get their data processed and loaded to get started on searching and review within their required time frame.

So, when considering eDiscovery solution alternatives that include cloud based solutions, it’s important to understand which are public cloud solutions and which are private/protected cloud solutions and what that means to you.  It’s also important to understand how data can be processed and loaded and whether the load process is multi-threaded.  And, it’s important to understand the pros and cons of on premise and off premise solutions to help you decide (Tom and I covered both in the webcast linked to at the top of the post).  Depending on your requirements, a combination of both on premise and off premise may be appropriate to meet your needs.

So, what do you think?  Do you use on-premise, off-premise or a combination for your eDiscovery solution(s)? Please share any comments you might have or if you’d like to know more about a particular topic.

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