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Electronic Discovery

Time for ILTACON 2017: eDiscovery Trends

The International Legal Technology Association (ILTA) annual educational conference of 2017 (known as ILTACON) kicked off yesterday with several networking events, and begins in earnest today with the first day of sessions.  eDiscovery Daily will be reporting this week about the latest eDiscovery trends being discussed at the show.  Over the next four days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.

If you’re in the Las Vegas area, come check out the show at the Mandalay Bay – there are a number of sessions available and as many as 215(!) exhibitors providing information on their products and services.  Sessions of interest in the main conference tracks include (all times PT):

11:00 AM – 12:00 PM:

Challenging ESI Sources: Judge Peck and Craig Ball will discuss the technical and legal issues related to the most challenging electronically stored information (ESI) sources they have dealt with over the past six months in ediscovery. Learn how to prepare and deal with these challenges in your own matters.

Takeaways:

  • Better understand some of the emerging data sources that will become more mainstream in the next several years
  • Identify real-world examples of how to deal with these ESI sources in a defensible way today

Speakers include: Craig Ball, ESI Special Master and Texas Attorney Craig D. Ball, P.C.; Allen McNee, Chief Revenue Officer Integreon; Honorable Andrew J Peck, US Magistrate Judge of New York.

1:00 PM – 2:00 PM:

Latest Trends in Leveraging Analytics in Litigation Support: As the ediscovery industry matures, much has been written and said about the concepts and theories underlying technology-assisted review. How is it being leveraged in practice in 2017, and what’s next on the horizon? Judge Peck and three industry experts will present real-life case studies — some including new applications — and give predictions on the future of advanced analytics in litigation support.

Speakers include: Thomas Barce, Director of Consulting Services KrolLDiscovery; Beth Patterson, Chief Legal & Technology Services Officer Allens; Doug Matthews, Partner Vorys, Sater, Seymour and Pease LLP; Jeremiah Weasenforth, Managing Attorney Team Lead Orrick, Herrington & Sutcliffe LLP Honorable Andrew J Peck, US Magistrate Judge of New York.

The Cloud vs. No Cloud Debate: More and more vendors are moving to cloud models, which can put you in a difficult spot. How do you successfully make the case to move to these cloud solutions? How do you address risk concerns from your firm’s leadership and clients? Can you comply with a client’s “no cloud” demands while leveraging cloud technology? Let’s explore the cloud vs. no cloud debate and prepare you for Tuesday’s session on “Real-World On-Prem to Cloud Migrations.”

Takeaways:

  • Develop a review process for considering cloud solutions
  • Identify features and controls to mitigate risk and make clients happy

Speakers include: Robert DuBois, Chief Information Officer Briggs and Morgan, P.A.

Using the Information Governance Maturity Model: Understanding the defining characteristics of information governance (IG) programs at differing levels of completeness and maturity is a must for your program to be effective.Using the Law Firm Information Governance Symposium (LFIGS) information governance maturity model as a guide, attendees will learn how to identify where you are in different facets of law firm IG maturity and how you can advance your program to the next level.

Speakers include: Brian Donato, Chief Information Officer Vorys, Sater, Seymour and Pease LLP; Dana C. Moore, Manager of Records & Information Compliance Vedder Price P.C.; Terry Coan, Senior Director HBR Consulting LLC.

2:30 PM – 3:30 PM:

Transition Your Litigation Support Career to Cybersecurity and Information Governance: Litigation and practice support specialists are cornering new niches of consultation and expertise in cybersecurity and information governance. While many of the skills and experiences of ediscovery professionals touch on the implications of information governance policies and data security issues, the transition from the litigation support world to another related discipline is not a short and easy path. Success requires significant additional education and certification, an understanding of advanced developing technology proficiencies, and the ability to leverage these areas of high value consulting work from a business perspective. Come hear tips and lessons learned from industry leaders who have incorporated cybersecurity and information governance into their roles.

Speakers include: Caroline Sweeney, Global Director Ediscovery & Client Technology Services Dorsey & Whitney; Rachelle Rennagel, eDiscovery Counsel Pillsbury Winthrop Shaw Pittman LLP; Wale Elegbe, Senior Manager, eDiscovery & Litigation Support Sullivan & Cromwell LLP; Jared Coseglia, Founder & CEO, TRU Staffing Partners, Inc.

4:00 PM – 5:00 PM:

Stand By Me: A Mock 30(b)(6) Deposition of a Corporate IT Representative: Litigation support professionals are often called upon to shepherd client data identification, preservation and collection. Discovery challenges could call into question the integrity and sufficiency of these processes, leading to motion practice and the deposition of a client’s corporate IT representative. In this interactive session, watch as we stage a 30(b)(6) deposition from start to finish and stop along the way to discuss key points and issues you should plan for and be aware of. We’ll also involve the audience to get thoughts and feedback on what you perceive to be the correct course of action.

Takeaways:

  • Understand what to expect during a typical 30(b)(6) deposition
  • Receive tips on how to properly prepare your client by focusing on litigation readiness
  • Learn how to avoid common pain points and errors

Speakers include: Scott B Reents, Lead Attorney, Data Analytics and E-Discovery Cravath, Swaine & Moore LLP; Matthew K. Blaine, Partner Davison Eastman & Munoz, P.A.; George Chiu, Director, Systems Development Prudential Financial, Inc.; Roe Frazer, Attorney, Frazer P.L.C.

The Future of Search in Law Firms: What does the future hold for search in law firms? How far will legal knowledge management push the search envelope beyond documents, matters and expertise? Further than you think! Let’s explore the future of search, including integrating search-enabled applications, broadening the search scope available to the mobile professional, incorporating artificial intelligence, enhanced visualization and the use of predictive analytics, and the use of machine-generated metadata to improve search results. See how search can fulfill its promise of making your lawyers more effective and firm-client relationships more collaborative.

Takeaways:

  • Identify possible search functions
  • Visualize the future of search in your law firm
  • Learn how you can prepare for the future of search
  • Hear Case Studies from two law firms to improve search

Speakers include: Todd Friedlich, Sr. Manager of KM Technology and Innovation Ropes & Gray; Douglas Freeman, Knowledge Systems Manager White & Case LLP; Glenn LaForce, EVP / Chief Strategy Officer Handshake Software; Peter Wallqvist, VP of Strategy iManage.

And, of course, you don’t want to miss the Exhibit Hall Opening Reception from 7:00 PM – 9:00 PM ET, where they’ll “beam you up” into another realm of space and science fiction. As always, this is a great opportunity to visit with exhibitors and tour the Exhibit Hall in a relaxed setting and hors d’oeuvres and beverages will be served.

So, what do you think?  Are you planning to attend ILTACON this year?  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.

Plaintiff Sanctioned for Spoliation of Evidence in His Case Against Taylor Swift: eDiscovery Case Law

In Mueller v. Swift, No. 15-cv-1974-WJM-KLM (D. Colo. July 19, 2017), Colorado District Judge William J. Martinez ruled that “Plaintiff’s loss or destruction of the complete recording of the June 3, 2013 conversation [between the plaintiff and his supervisors] constitutes sanctionable spoliation of evidence”, but rejected the defendants’ request to make a finding of bad faith and to give the jury an adverse inference instruction, opting instead for permitting the defendants to cross-examine the plaintiff in front of the jury regarding the record of his spoliation of evidence.

Case Background

In this case against the defendants for tortious interference with the plaintiff’s employment contract and one defendant’s counterclaims for the torts of assault and battery over a well-publicized claim of inappropriate touching, the plaintiff met with his superiors at the radio station where he worked on June 3, 2013 to discuss the defendant’s claim of inappropriate touching. Unbeknownst to the supervisors at the time, the plaintiff made an audio recording of their conversation.  The following day, the plaintiff was terminated from his employment by one of the supervisors, who explained that one reason for the plaintiff’s termination was because he perceived Plaintiff had “changed his story that it couldn’t have occurred, then that it was incidental.”

At some point thereafter, well after having first contacted an attorney regarding potential legal action, the plaintiff edited the audio recording of the conversation, and then sent only “clips” of the entire audio file to his attorney.  According to his testimony, the plaintiff edited the audio file on his laptop computer, on which he also retained a full copy of the original audio file(s).  However, he claimed that he spilled coffee on the keyboard of his laptop and was given “a new machine” by the Apple Store and he didn’t retain the hard drive from the old laptop.  The plaintiff also kept an external hard drive “to store audio files and documents”, and the complete audio recording was saved on this drive, but he indicated that, at some point, it “stopped working.”  At his deposition, the plaintiff testified that he “may have kept” this hard drive, but that because it was “useless” he “[didn’t] know if I discarded it because it was junk”. As a result, the complete audio file was never produced and the defendants moved for a Court-imposed sanction for spoliation of evidence, and for the Court to give the jury an adverse inference instruction at trial, to direct the jury “that the entirety of the June 3, 2013 audio recording would have been unfavorable to Plaintiff.”

Judge’s Ruling

Judge Martinez ruled that the plaintiff had a duty to preserve the recording, that the recording was “relevant to numerous disputed facts and issues” in the case, that the defendants were prejudiced by the loss of evidence and that the degree of culpability warrants a sanction.  While declining to make a finding that the plaintiff acted in bad faith, Judge Martinez indicated that the “spoliation falls higher up on the ‘continuum of fault’” than “mere negligence”, noting that it was “troubling” that the plaintiff also threw out his cell phone, months after the litigation was filed, noting “it may have been the device that he originally used to record the June 3, 2013 conversation”.

As a result, Judge Martinez concluded that “Plaintiff’s loss or destruction of the complete recording of the June 3, 2013 conversation constitutes sanctionable spoliation of evidence”, but, determining that the defendants’ request for an adverse inference instruction sanction “would be unduly harsh in the circumstances of this case”, deciding instead to permit the defendants to cross-examine the plaintiff in front of the jury regarding the record of his spoliation of evidence.

So, what do you think?  Was that an appropriate sanction given the lack of finding of bad faith?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Retired NIST Expert Says His Advice on Creating Passwords was Wrong: Cybersecurity Best Practices

If you’re a person who takes password security seriously and followed advice to create passwords that use a combination of lower and upper case letters, numbers and special characters to foil hackers, good for you.  Unfortunately, that advice was wrong, according to the National Institute of Standards and Technology (NIST) and the retired expert who authored that advice in the first place.

According to The Wall Street Journal (The Man Who Wrote Those Password Rules Has a New Tip: N3v$r M1^d!, written by Robert McMillan), the author of an 8-page primer written in 2003 which advised people to protect their accounts by inventing awkward new words rife with obscure characters, capital letters and numbers – and to change them regularly – has admitted the advice was largely incorrect.

Back in 2003, as a midlevel manager at NIST, Bill Burr was the author of “NIST Special Publication 800-63. Appendix A.”  The document became a sort of Hammurabi Code of passwords, the go-to guide for federal agencies, universities and large companies looking for a set of password-setting rules to follow.

The problem is the advice ended up largely incorrect, Burr says. Change your password every 90 days? Most people make minor changes that are easy to guess, he lamented. Changing Pa55word!1 to Pa55word!2 doesn’t keep the hackers at bay.  The advice that demanded a letter, number, uppercase letter and special character – such as an exclamation point or question mark was also wrong.  Years of research has shown that these measures actually don’t do that much to foil hackers.

“Much of what I did I now regret,” said Burr, 72 years old, who is now retired.

In June, Special Publication 800-63 got a thorough rewrite, led by Paul Grassi, an NIST standards-and-technology adviser, which resulted in removal of several of these password commandments.  The new guidelines, which are already filtering through to the wider world, drop the password-expiration advice and the requirement for special characters, Grassi said. Those rules did little for security—they “actually had a negative impact on usability,” he said.

NIST’s newly updated guide instead encourages a long, easy-to-remember string of words instead.  In a widely circulated piece, cartoonist Randall Munroe calculated it would take 550 years to crack the password “correct horse battery staple,” all written as one word whereas the password Tr0ub4dor&3 (a typical example of a password using Burr’s old rules) could be cracked in three days, according to Mr. Munroe’s calculations, which have been verified by computer-security specialists.

With data accumulated over the last decade or so (which wasn’t available to Burr back then), experts have concluded that the password recommendations from 2003 don’t work because we tend to gravitate toward the same old combinations over and over.  With that in mind, Grassi thinks his former colleague Burr is being a little bit hard on himself over his 2003 advice.

“He wrote a security document that held up for 10 to 15 years,” Grassi said. “I only hope to be able to have a document hold up that long.”

So, what do you think?  Do you use 2003 recommendations to create your passwords?  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.

Here’s a Chance to Learn Whether an On-Premise or Off-Premise Solution is Right For You: eDiscovery Best Practices

Today, when consumers are considering their eDiscovery technology choices, there are more factors to consider than ever. In addition to considering the functionality of the software application, you now also have to consider whether to buy or “rent” the application, how the software is delivered to you and whether it’s required to be within your firewall or can be an off-premises solution.

On Wednesday, August 30 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast On Premise or Off Premise? A Look at Security Approaches to eDiscovery.  This one-hour webcast will discuss different on-premise and off-premise eDiscovery solution options and considerations for each. Topics include:

  • Drivers for eDiscovery Technology Solution Decisions Today
  • eDiscovery Industry Market Trends and Their Relation to General Industry Trends
  • What Law Firms are Saying about the Technology
  • What Industry Analysts are Saying about the Technology
  • The Cloud vs. No Cloud Debate
  • Why Not All Cloud Solutions Are the Same
  • A Comparative Approach to eDiscovery Technology
  • Putting a Face on Solutions and Risks
  • Key Components of an eDiscovery Technology Solution

I’ll be presenting the webcast, along with (for the first time) 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.

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.

“Summer” More Confident in eDiscovery Business Than Others: eDiscovery Trends

See what I did there?  :o)

The results are in from the Complex Discovery Summer 2017 eDiscovery Business Confidence Survey, which concluded last week and (as was the case for the 2016 Winter, Spring, Summer and Fall surveys and the 2017 Winter and Spring surveys) the results are published on Rob Robinson’s terrific Complex Discovery site.  How confident are individuals working in the eDiscovery ecosystem in the business of eDiscovery?  Let’s see.

As always, Rob provides a complete breakdown of the latest survey results, which you can check out here.  As I’ve done for the past few surveys, I will primarily focus on trends over the past four surveys to see how the responses have varied from quarter to quarter and will take a look at a year over year comparison to the Summer 2016 survey.

The Summer 2017 Survey response period was initiated on July 6, and continued until registration of 100 responses by July 31 (this survey was capped at 101). Rob notes that this limiting of responders to 100 (or so) individuals is designed to create linearity in the number of responses for each quarterly survey.  So, in the future, if you want your voice heard, respond early!

Percentage of Provider Respondents Remains High: Of the types of respondents, 56.4% were either Software and/or Services Provider (39.6%) or Consultancy (16.8%) for over half of respondents as some sort of outsourced provider (over half of total respondents – I’m counting law firm respondents as consumers even though they can also be providers as well).  Law firm respondents comprised a majority of the remaining respondents with 34.6%.  No other type of respondents was over 3%.  Here’s a graphical representation of the trend over the past four quarters:

When comparing this year’s Summer survey to last year’s survey, the survey is less diverse than it was a year ago, especially with regard to the percentage of “Other” respondents.  Last year’s survey had 168 respondents, so it was before the cap of approximately 100 respondents was set:

Just Over Half of Respondents Consider Business to Be Good: Over half (53.4%, to be exact) of respondents rated the current general business conditions for eDiscovery in their segment to be good, with only 5% rating business conditions as bad.  Last quarter, those numbers were 52.9% and 6.7% respectively, so this quarter reflects slightly more bullish than last quarter, our second up quarter in a row.  Will the momentum continue?  We’ll see.  Here is the trend for the last four quarterly surveys:

When comparing against last year’s Summer survey, respondents this Summer are considerably more bullish as they were a year ago (only 47.6% rated the current general business conditions for eDiscovery in their segment to be good in 2016).  So, no summer doldrums this year, at least with regard to general business conditions:

Most Still Expect eDiscovery Business Conditions to be as Good or Better Six Months From Now: Most respondents (93.1%) expect business conditions will be in their segment to be the same or better six months from now (good, but down from last quarter’s 96.2%), and the percentage expecting business to be better fell to 43.6%.  Revenue (at combined 94.1% for the same or better) rose from the last quarter, while profit (combined 89.1%) dropped from last quarter.  Here is the profits trend for the last four quarterly surveys:

When compared against last year’s Summer survey, the distribution for profits six months from now in this year’s survey is comparable to last year’s Summer results with a 0.6% increase of respondents expecting higher profits and a 3.7% decrease of respondents expecting lower profits:

For the First Time, Increasing Types of Data is Most Impactful to eDiscovery Business: Increasing Types of Data was the top impactful factor to the business of eDiscovery over the next six months at 21.7% (almost twice the percentage as last quarter) with Increasing Volumes of Data and Budgetary Constraints next up at 20.8% each (so, one vote away from a three way tie).  Lack of Personnel was next up with 14.9%, followed by Data Security (11.9%) and Inadequate Technology (at 9.9%) bringing up the rear.  The graph below illustrates the distribution across the most recent four quarterly surveys.

A year ago, Increasing Volumes of Data edged out Budgetary Constraints as the most impactful to eDiscovery business (with Increasing Types of Data a distant fifth, less than half of this year’s percentage).  It will be interesting to see if the move up by Increasing Types of Data signals a trend or just a one-time anomaly:

Executive Leader and Management Respondents Comprise the Majority: Executive Leadership respondents dipped slightly down to 41.6% of respondents (from 44.2% last quarter), while Operational Management respondents rose to 34.6% – a total of 76.2% respondents from leadership and management roles.  Tactical Execution respondents dropped to 23.8%.  Here’s the breakdown of the last four quarters:

The survey is less distributed than last year, where the response groups were fairly even.

Again, Rob has published the results on his site here, which shows responses to additional questions not referenced here.  Rob has also provided his own observations about the results here.  Check them out.

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  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.

ILTACON 2017 Preview Edition: eDiscovery Trends

Believe it or not, it’s almost time for another ILTACON!  ILTACON is the annual conference for the International Legal Technology Association (ILTA).  This year, it is being held in Las Vegas (baby!) at the Mandalay Bay Hotel and Resort.  And, once again, eDiscovery Daily will be covering the show!  If you’re in the Las Vegas area, you may want to check out a few of these sessions regarding eDiscovery and Information Governance.

Technically, ILTACON opens in 6 days with the annual golf tournament, orientation and opening reception happening on Sunday.  Oh, and (as always) every day starts with Yoga and Zumba at 6:30am!  However, the Keynote and Educational Sessions start a week from today, on Monday, the 14th.  Here are a few sessions to check out (including one that I’m speaking on at 9am on Wednesday, just sayin’):

Monday, 08/14/2017:

Challenging ESI Sources, 11:00 AM – 12:00 PM PT: Judge Peck and Craig Ball will discuss the technical and legal issues related to the most challenging electronically stored information (ESI) sources they have dealt with over the past six months in eDiscovery. Learn how to prepare and deal with these challenges in your own matters.

The Cloud vs. No Cloud Debate, 1:00 PM – 2:00 PM PT: More and more vendors are moving to cloud models, which can put you in a difficult spot. How do you successfully make the case to move to these cloud solutions? How do you address risk concerns from your firm’s leadership and clients? Can you comply with a client’s “no cloud” demands while leveraging cloud technology? Let’s explore the cloud vs. no cloud debate and prepare you for Tuesday’s session on “Real-World On-Prem to Cloud Migrations.”

And, of course, you don’t want to miss the Exhibit Hall Opening Reception from 7:00 PM – 9:00 PM PT, where the exhibitors will create their own spin on our Vendor Galaxy theme, competing for our annual Best of ILTA awards for 1st, 2nd and 3rd. Have fun walking around the exhibits while enjoying food, drinks and space-age entertainment.

Tuesday, 08/15/2017:

A Deep Dive into Project Management in Litigation Support, 11:00 AM – 12:30 PM PT: Take a deep dive into advanced litigation support project management (PM) principles. This workshop will be led by three high-level eDiscovery strategists and is designed for professionals who live in the trenches of complex litigation support management. Learn principles you can leverage and apply immediately to improve your organization’s PM maturity.

Real-World On-Prem to Cloud Migrations, 3:30 PM – 4:30 PM PT: A panel of peers from firms with experience migrating on-premises systems to the cloud will discuss how their cloud strategies were formed; what moved when and resource allocation; what to look for in a cloud provider; affected business processes; level of effort (time, cost, etc); cloud growth projections; addressing client data audits; and security concerns and challenges. This is a follow-up to Monday’s session on “The Cloud vs. No Cloud Debate.”

Wednesday, 08/16/2017:

eDiscovery Industry Resources, 9:00 AM – 10:00 AM PT: There are many industry resources for professionals in eDiscovery, including Women in eDiscovery, ILTA, ACEDS, EDRM and Sedona. How can you get involved with these organizations, and what are the benefits of becoming a member? Speakers from each organization will share how they can help you and your team.

Ediscovery Data and Records Collaboration, 3:30 PM – 4:30 PM PT: A closed matter is just the beginning to what can often be a complex data storage process. What information gets returned to the client? What data sets get destroyed? What data do you need to keep? From understanding your client’s records retention strategy to having a step-by-step plan with records managers, a collaborative strategy is necessary to ensure records are safeguarded and processes are compliant.

Thursday, 08/17/2016:

Data Analytics for Information Governance, 2:00 PM – 3:00 PM PT: Whether you’re in a law firm or corporate environment, using data and key metrics can improve your information governance (IG) and system performance. What types of data should you be evaluating, and how to do find the value of it? How can you create the ideal information governance framework by distilling data into building blocks that tie together? We’ll examine case studies to demonstrate data-driven decisions made throughout the building and remodeling of successful IG programs.

We will cover all of the eDiscovery and Information Governance related sessions next week and will provide a post-show wrap up at the end, so look for that next week!  Viva Las Vegas!

So, what do you think?  Are you going to ILTACON 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. 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.

Test Your Searches Before the Meet and Confer: eDiscovery Replay

Sometimes, even blog editors need to take a vacation.  But, instead of “going dark” for the week, we thought we would re-cover some topics from the past, when we had a fraction of the readers we do now.  If it’s new to you, it’s still new, right?  Hope you enjoy!  We’ll return with new posts on Monday, August 7.

This was one of the “pitfalls” and “potholes” in eDiscovery we discussed in a recent webcast.  Click here to learn about others.

One of the very first posts ever on this blog discussed the danger of using wildcards.  For those who haven’t been following the blog from the beginning, here’s a recap.

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

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

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

What made that process difficult was the negotiation with opposing counsel.  My client had already agreed on over 200 terms with opposing counsel and had proposed many of those terms, including this one.  The attorneys had prepared these terms without assistance from a technology consultant (I was brought into the project after the terms were negotiated and agreed upon) and without testing any of the terms.

Since they had been agreed upon, opposing counsel was understandably resistant to modifying the terms.  The fact that my client faced having to review all of these files was not their problem.  We were ultimately able to provide a clear indication that many of the terms in this search were non-responsive and were able to get opposing counsel to agree to a modified list of variations of “mine” that included “minable”, “mine”, “mineable”, “mined”, “minefield”, “minefields”, “miner”, “miners”, “mines”, “mining” and “minings”.  We were able sort through the “minutia” and “minimize” the result set to less than 12,000 files with hits, saving our client a “mint”, which they certainly didn’t “mind”.  OK, I’ll stop now.

However, there were several other inefficient terms that opposing counsel refused to renegotiate and my client was forced to review thousands of additional files that they shouldn’t have had to review, which was a real “mindblower” (sorry, I couldn’t resist).  Had the client included a technical member on the team and had they tested each of these searches before negotiating terms with opposing counsel, they would have been able to figure out which terms were overbroad and would have been better prepared to negotiate favorable search terms for retrieving potentially responsive data.

When litigation is anticipated, it’s never too early to begin collecting potentially responsive data and assessing it by performing searches and testing the results.  However, if you wait until after the meet and confer with opposing counsel, it can be too late.

So, what do you think?  What steps do you take to assess your data before negotiating search terms?  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 Litigation Hits, The First 7 to 10 Days is Critical: eDiscovery Replay

Sometimes, even blog editors need to take a vacation.  But, instead of “going dark” for the week, we thought we would re-cover some topics from the past, when we had a fraction of the readers we do now.  If it’s new to you, it’s still new, right?  Hope you enjoy!  We’ll return with new posts on Monday, August 7.

When a case is filed, several activities must be completed within a short period of time (often as soon as the first seven to ten days after filing) to enable you to assess the scope of the case, where the key electronically stored information (ESI) is located and whether to proceed with the case or attempt to settle with opposing counsel.  Here are several of the key early activities that can assist in deciding whether to litigate or settle the case.

Activities:

  • Create List of Key Employees Most Likely to have Documents Relevant to the Litigation: To estimate the scope of the case, it’s important to begin to prepare the list of key employees that may have potentially responsive data. Information such as name, title, eMail address, phone number, office location and where information for each is stored on the network is important to be able to proceed quickly when issuing hold notices and collecting their data.
  • Issue Litigation Hold Notice and Track Results: The duty to preserve begins when you anticipate litigation; however, if litigation could not be anticipated prior to the filing of the case, it is certainly clear once the case has been filed that the duty to preserve has begun. Hold notices must be issued ASAP to all parties that may have potentially responsive data.  Once the hold is issued, you need to track and follow up to ensure compliance.  Did you know that issuing litigation hold notices today can be automated?  Here’s a short webcast to show you how.
  • Interview Key Employees: As quickly as possible, interview key employees to identify potential locations of responsive data in their possession as well as other individuals they can identify that may also have responsive data so that those individuals can receive the hold notice and be interviewed.
  • Interview Key Department Representatives: Certain departments, such as IT, Records or Human Resources, may have specific data responsive to the case. They may also have certain processes in place for regular destruction of “expired” data, so it’s important to interview them to identify potentially responsive sources of data and stop routine destruction of data subject to litigation hold.
  • Inventory Sources and Volume of Potentially Relevant Documents: Potentially responsive data can be located in a variety of sources, including: shared servers, eMail servers, employee workstations, employee home computers, employee mobile devices, portable storage media (including CDs, DVDs and portable hard drives), active paper files, archived paper files and third-party sources (consultants and contractors, including cloud storage providers). Hopefully, the organization already has created a data map before litigation to identify the location of sources of information to facilitate that process.  It’s important to get a high level sense of the total population to begin to estimate the effort required for discovery.  And, don’t forget to consider those custodians who are no longer there.
  • Plan Data Collection Methodology: Determining how each source of data is to be collected also affects the cost of the litigation. Are you using internal resources, outside counsel or a litigation support vendor?  Will the data be collected via an automated collection system or manually?  Will employees “self-collect” any of their own data?  Answers to these questions will impact the scope and cost of not only the collection effort, but the entire discovery effort.

These activities can result in creating a data map of potentially responsive information and a “probable cost of discovery” spreadsheet (based on initial estimated scope compared to past cases at the same stage) that will help in determining whether to proceed to litigate the case or attempt to settle with the other side.

So, what do you think?  How quickly do you decide whether to litigate or settle?  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.

Improving your eDiscovery Vocabulary is as Easy as 123: eDiscovery Replay

Sometimes, even blog editors need to take a vacation.  But, instead of “going dark” for the week, we thought we would re-cover some topics from the past, when we had a fraction of the readers we do now.  If it’s new to you, it’s still new, right?  Hope you enjoy!  We’ll return with new posts on Monday, August 7.

Want to be better equipped to speak the “lingo” of eDiscovery and understand what you’re saying?  Here’s a glossary that can help.

As provided via the JDSupra Business Advisor site, Electronic Discovery: Glossary of 123 Commonly Used Terms, provided by Seattle law firm Lane Powell PC, is a glossary of 123 commonly used terms to help you navigate the world of Electronic Discovery.  For those of us who have been in the industry for years, call them Terms of Endearment!

From Active Data to Zip, the glossary defines 123 total terms related to eDiscovery as well as technology in general.  You get discovery terms defined ranging from Bates Number and Chain of Custody to Redaction and Spoliation and technology terms from Cache (pronounced “cash”) and Compression to Unallocated Space and VPN (Virtual Private Network).

You can review the terms from the window on the JD Supra site or download the PDF document for reference purposes.  This list comes in handy for anyone who may need a better understanding of eDiscovery and technology or simply needs a refresher on certain terms.

I did not see definitions for all of the EDRM phases (e.g., no definitions for Identification, Collection, Analysis, Processing or Presentation) and some other terms that might be useful to define (e.g., Searching), so maybe they can eventually issue a supplemented version that has 144 defined terms.  Now, that’s gross!  :o)

Speaking of EDRM, they have their own even more extensive glossary (we covered it here last year) and you can find it (and its sub-glossaries) here.  And, if you want a glossary specific to Technology Assisted Review, here is a terrific one from Maura Grossman and Gordon Cormack.  To become more comfortable with the lingo, be sure not to “gloss” over any of these resources.  :o)

So, what do you think?  Do you speak fluent eDiscovery?  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.

Other Production Parameters from a Provider’s Point of View: eDiscovery Replay

Sometimes, even blog editors need to take a vacation.  But, instead of “going dark” for the week, we thought we would re-cover some topics from the past, when we had a fraction of the readers we do now.  If it’s new to you, it’s still new, right?  Hope you enjoy!  We’ll return with new posts on Monday, August 7.

Yesterday, we began to discuss some of the production parameters that CloudNine collects from our clients in order to ensure that the production includes the correct documents in the required format.  But, wait – there’s more!  Let’s take a look at some other examples of information we collect from our clients.

  • Naming Structure for Files: Files that are produced follow some sort of naming convention and structure, typically either the original file name or some sort of naming convention that involves a unique identifying prefix followed by a zero-filled number (e.g., ABC000001.{file extension}).
  • Image Endorsements: Of course, images that are produced typically include a Bates number on each page that involves a unique identifying prefix followed by a zero-filled number (see example above), but endorsements can also include special endorsements such as a confidential stamp, so we provide a place on our questionnaire for clients to provide additional endorsement instructions for text and placement.
  • Metadata Fields and/or Tags to Be Produced: If the client is producing metadata, it’s obviously important to know the fields to be produced and the desired order. We also ask them to specify the delivery format – the typical formats are CSV (comma separated values, which can be loaded into Excel) or DAT (data) file.
  • Populate Production Numbers Back into Database: When clients produce documents, they typically want to track the production numbers, so we give them the option for us to create new fields in their CloudNine database with those production numbers.
  • Branded Images Back into Database: We also offer the same option for putting images branded with the Bates numbers and other endorsements back into the database, so that the client can easily reference the production number when looking at the page.
  • Load File: Often parties agree to produce load files to make it easy for opposing counsel to load the documents and metadata into their own eDiscovery platform, so we will create load files in several industry standard formats to support that requirement.
  • Delivery Method for Production: There are several options for delivering documents and data including CD or DVD, portable hard drive or electronically via File Transfer Protocol (FTP). Some projects, due to HIPAA requirements require special security handling, such as encrypted hard drives or Secured File Transfer Protocol (SFTP).
  • Where to Send Production: If the client selects CD, DVD or Portable Hard Drive, we require the Name, Street Address and Phone Number where the media is being delivered, if they select FTP, we need an FTP address (and any credentials, if necessary, to access it).
  • Name of Production Set: We request that each production set be uniquely named for later reference purposes, which is especially useful when there are multiple productions to track.
  • Other Instructions: Believe it or not, all of the parameters that we’ve identified over the past two days don’t cover every scenario, so we provide a place on the questionnaire to provide any other instructions. Those can range from special handling for other file types, extra copies requested, etc.

As you can see, we collect a lot of information from our clients at production time to ensure a proper production.  There are a lot of variables to consider, so it’s important to be consider those variables not just when producing, but WAY back at the beginning of the case, to ensure that you will be able to fulfill your discovery obligations to opposing counsel.  Hope this list of parameters was helpful.

So, what do you think?  How do you ensure proper productions?  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.