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Electronic Discovery

David Horrigan of kCura: eDiscovery Trends

This is the second of the 2017 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY (aka Legalweek) this year to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is David Horrigan of kCura, the developers of Relativity.  David is the E-Discovery Counsel and Legal Content Director at kCura.  An attorney, law school guest lecturer, e-discovery industry analyst, and award-winning journalist, David has served as counsel at the Entertainment Software Association, reporter and assistant editor at The National Law Journal, and analyst and counsel at 451 Research. He serves on the Editorial Advisory Board of Legaltech News and the Data Law Board of Advisors at the Yeshiva University Cardozo Law School. David holds a Juris Doctor from the University of Florida, and he studied international law at Universiteit Leiden in the Netherlands.  He’s licensed to practice law in the District of Columbia.

What are your observations about LTNY this year and how it compared to other LTNY shows that you have attended?

This year, ALM expanded the conference from Legaltech to Legalweek, bringing more legal issues into a larger overall event.  I think many speakers did a great job in showing how technology relates to all areas of the law.  For instance, Dean Erwin Chemerinsky did an outstanding job of bringing other areas of the law into the rest of the program.  Many sessions did an excellent job of really hitting home how legal technology and the law aren’t just for programmers and legal teams—they affect everyday life.

For example, I liked how Dean Chemerinsky mentioned that, when he teaches Katz v. United States, it’s become clear to him that many of his law students don’t know what a telephone booth is.  His example illustrates not only that Superman needs to find a new place to change clothes, it shows how technology changes every day life and highlights the importance of legal technology in eDiscovery.

This is my second Legaltech with kCura, but I’ve come to many Legaltech shows in New York over the past fifteen years or so, and I was first a speaker at Legaltech in 2001, and as an ALM alumnus from The National Law Journal and Legaltech News, it’s always great to come back.  Having been here as a journalist, an in-house counsel, an industry analyst, and now representing kCura, I’ve seen a lot of change over the years. One of my favorite tales of technological change since my first Legaltech is that in the early part of the last decade, you could walk the Exhibit Hall and visit vendors with metadata wiping software.  Such software is probably still great for corporate counsel negotiating contracts, but with today’s rules and case law, such metadata wiping would probably get an e-discovery lawyer sanctioned or in front of a bar ethics board.

One of the things I enjoy about being here with kCura that differs from my years at 451 Research is the ability to attend and live-tweet sessions where I’m not speaking.  For the most part, when I was at 451, I was able to attend only the sessions where I was speaking because I was in back-to-back briefings with various eDiscovery vendors.  Of course, I have to admit I miss the briefings with the many great people in the eDiscovery profession and industry.  We live in contentious times, and I think it says a lot about the people in our industry that in my years with 451, I almost never heard eDiscovery vendors disparage each other.  Sure, they said they’re software and services were better, but you didn’t hear people saying, ‘That guy’s software is crap.’

Speaking about your role as a speaker, I noticed that you’re a panelist on one session related to “new frontiers” for international discovery.  With all of the developments in the past year related to data privacy issues, where do you think we’re heading from here?

Over the next 17 months, people will certainly be focusing on the EU General Data Protection Regulation (GDPR), which will go into effect in May of 2018.  The GDPR would have certainly been a game changer before the election of the current administration, but now it is going to be a real game changer because, as you know, the United States does not meet adequate level of data protection under Article 25(6) of the 1995 Directive, and the GDPR will bring even stronger, harmonized requirements.  Call me crazy, but I don’t think the new administration is going to be very receptive to changing US laws and regulations to harmonize them with the laws of other nations.  Of course, we tend to be very Euro-centric in our international analyses of cross-boarder issues.

Last year, you and I participated on a couple of panel discussions involving Technology Assisted Review (TAR) where there was spirited discussion about the current state of acceptance of TAR, both during and after those panel discussions.  Where do you feel we stand with regard to the current state of acceptance of TAR?

It’s clearly mainstream, and now we can add Australia as the fourth nation to join the TAR club of the United States, Ireland, and the United Kingdom with a state supreme court practice notes approving the use of TAR.  Although it’s not a judicial decision—instead being a practice note from the Supreme Court of Victoria, I think it’s a big development.  I think that acceptance of TAR is internationally growing.  And, as Judge Peck said in Hyles v. New York City last summer, it’s generally accepted that if a producing party wants to use TAR, it can.

As far as the implementation of TAR, I really think we’re about to the stage where TAR is mainstream.  Of course, it’s not used in every case, but TAR usage numbers have been increasing progressively, and I don’t expect any change there.

Do you think that TAR is a viable candidate to be used in all cases?

Some firms have said they run it on everything, and our polling as well as that of others, including Norton Rose Fulbright, show substantial increases in TAR use.  Of course, as with any eDiscovery tool, there are some very small matters when you might not need TAR.  It’s not really a question of whether you can use TAR on a small case – you can – you just might not need to use it on a small case.  Having said that, in the Big Data era of 2017, there are now data-heavy matters where you really do need to use TAR.

There also seems to be quite a bit of debate as to whether TAR can be used in combination with keyword search.  What are your thoughts about that?

When I was at 451 Research, I used to call it “assisted review technologies” (plural).  Because there are so many different choices, I don’t think any of them is necessarily right or wrong.  I think that they’re just different ways to “crack the nut.”  There are times and places for keyword search.  Despite what many have said TAR and keywords is not a zero sum game. 

Another recent trend we’ve seen is with regard to an emphasis on technology competence for attorneys and we’re up to 26 states that have adopted some sort of technology competence requirement, with Florida being the first state that has required technology CLE for their attorneys.  Do you think the increased emphasis on technology competence will change the general lack of understanding of technology within the legal profession?

It has to.  These are mandatory ethics rules.  Ethics rules are not something you can choose to follow “a la carte” – if your state passes a rule, you have to follow it.  Because everyone’s lives are changing so much due to the proliferation of technology, the “luddite” lawyer who says “I went to law school so that I can avoid statistics” is in for a rude awakening.  Clearly, technology is a part of the practice of law.  Even most two year olds can swipe an iPad or an iPhone – if the two year olds are starting to get technology, lawyers need to get on board.

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

Obviously, the cloud is a big issue and, at kCura, we’re taking the hybrid approach.  There’s a place for the on-premises approach and a place for the cloud approach and kCura is taking the hybrid approach of providing solutions to support both approaches.  And, as always, we’re enthusiastic about our partnerships, including the new partnership we’ve just announced with CloudNine.

Thanks, David, for participating in the interview!

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

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. 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 Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Defines Narrowed Scope for Requests for Social Media Data: eDiscovery Case Law

In Scott v. United States Postal Service, No. 15-712-BAJ-EWD (M.D. La. Dec. 27, 2016), Louisiana Magistrate Judge Erin Wilder-Doomes granted the defendant’s Motion to Compel Discovery in part, ordering the plaintiff to provide complete responses to the defendant’s interrogatory and request for production, but only after she limited the scope of both requests, determining them to be “overly broad”.

Case Background

In this personal injury case stemming from an automobile accident involving a vehicle driven by a United States Postal Service worker while that worker was on the job, the defendant requested via Interrogatory for the plaintiff to “Identify any and all social media (including but not limited to Facebook, Instagram, Twitter)” she had used since June 6, 2014 (the date of the accident).  The defendant also requested (via Request for Production) for the plaintiff to “Produce all postings related to any type of physical or athletic activities from June 6, 2014, to present on all social media websites, including, but not limited to Facebook, Instagram and Twitter.”

In her written discovery responses, Plaintiff objected to each of these requests by asserting that “the information requested is inclement, immaterial and not reasonably calculated to lead to the discovery of admissible evidence.”

The defendant sent a letter to the plaintiff in July 2016, explaining that it had a good faith basis for believing that the plaintiff had posted photographs and other information on social media about her activities since the accident, which involve physical activity (including one photograph on Facebook account showing the plaintiff and her fiancé in ski attire on a snow covered mountain), and that such information is relevant to the case.

After efforts to confer were unable to resolve the dispute, the defendant filed its Motion to Compel in September 2016.  In response, the plaintiff argued that the defendant’s request for all of her social media photos was overly broad because it would require the production of a significant amount of irrelevant information.  In its Reply Memorandum, the defendant maintained that the plaintiff had waived her objections to the discovery requests at issue and that the defendant was entitled to the information and documents requested because they are relevant to the plaintiff’s personal injury claims.

Judge’s Ruling

Noting that “Plaintiff does not address Defendant’s argument that her failure to timely voice adequate objections to the discovery requests constitutes a waiver of any objection she may have to the discovery requests”, Judge Wilder-Doomes found that the “boilerplate” language used by the plaintiff in objecting “does not suffice to assert a valid objection to the discovery requests” and found that the plaintiff had waived her objections to the discovery requests.

Despite that ruling, Judge Wilder-Doomes found the discovery requests to be “overbroad” and decided to “limit the requests in accordance with Fed. R. Civ. P. 26(b)(1)”.  With regard to the Interrogatory, Judge Wilder-Doomes limited the request to “identifying all social media accounts that Plaintiff has used since the underlying accident on June 6, 2014, her usernames, whether she has accessed the accounts since the accident, and the last time she accessed the accounts”.

With regard to the Request for Production, she limited the request to “all of Plaintiff’s social media postings, including photographs, since the June 6, 2014 accident that: (1) refer or relate to the physical injuries Plaintiff alleges she sustained as a result of the accident and any treatment she received therefor; or (2) reflect physical capabilities that are inconsistent with the injuries that Plaintiff allegedly suffered as a result of the accident.”

So, what do you think?  Should courts limit the scope of discovery requests?  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.

Brad Jenkins of CloudNine: eDiscovery Trends

This is the first of the 2017 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY (aka LegalWeek) this year to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Brad Jenkins of CloudNine™.  Brad has over 20 years of experience as an entrepreneur, as well as 15 years leading customer focused companies in the litigation technology arena. Brad also has authored several articles on document management and litigation support issues, and has appeared as a speaker before national audiences on document management practices and solutions.  He’s also my boss!  🙂

What are your observations about LTNY this year and how it compared to other LTNY shows that you have attended?

Once again, a majority of my time at LTNY was spent in meetings with colleagues and business partners as CloudNine had a suite and we had several meetings set up over the course of the three days of the show.  It seems that the meetings outside the show have become as big as the show itself.  Several people that I met with had hardly spent any time (if any) at the show when I met with them.  Because it’s the biggest conference of the year, LTNY provides a unique opportunity for face to face meetings you don’t get during the rest of the year, so it pays to take advantage of that opportunity.  Unfortunately, that comes at the expense of attending most of the conference itself.

I was able to attend some of the conference and spent a little time in the exhibit hall.  Based on what I saw, attendance seemed down this year and some of the exhibitors that I spoke with seemed to agree.  I assume the decision by ALM to charge a fee for the Exhibits Plus passes for the first time ever had an impact on attendance in the exhibit hall.  Not surprisingly, some criticized that decision, so it will be interesting to see if exhibitors push back on that and if ALM decides to charge that fee again next year.

Regardless, with so many opportunities for providers to reach prospects in a less expensive manner and with a market that clearly appears to be consolidating, I would expect that it will continue to be a challenge for ALM to retain exhibitors.  Over the past few years, the number of exhibitors have dropped and I wouldn’t be surprised to see that trend continue unless ALM gets creative in identifying new ways to attract potential exhibitors to the conference.

What about general industry trends?  Are there any notable trends that you’ve observed?

Last year, I noted a clear trend toward SaaS automation within eDiscovery and I think it’s clear that trend has not only continued, but expanded.  In addition to the investment in some automation providers, and the emergence of others like our company, CloudNine, we’ve seen several of the “big boys” (such as Ipro, Thomson Reuters and kCura) roll out their own cloud-based automation initiatives.  In the past year, we also saw organizations like Gartner acknowledge that cloud eDiscovery solutions are gaining momentum in the market due to their ease of use and competitive and straightforward pricing structures.  The move to the cloud for eDiscovery reflects a similar migration to the cloud within organizations for everything from SalesForce.com to Office 365.  In fact, Forbes.com recently published an article that reflected a prediction that, by 2020, 92% of everything we do will be in the cloud.  So, it makes sense that eDiscovery solutions would reflect that trend.

Another trend that has been happening for a few years and is certainly accelerating is the move to the left of the EDRM model for discovery and analytics.  With estimates of data doubling in organizations every 1.2 years, organizations are certainly having to turn to technology to address the challenges associated with that explosion of data.  The need for discovery is no longer initiated just by trigger events such as litigation or investigations – the need for organizations to perform discovery is a perpetual need.  You’re seeing organizations beginning to focus on data discovery to explore patterns and trends within unstructured data, even at the point of data creation, to gather insight into the data they have.  Then, when those trigger events occur, organizations are progressing into more traditional legal discovery to identify, preserve, collect, process, analyze, review and produce key ESI to support legal or investigative activities.  I think you’ll see that trend toward an increased focus on data discovery continue to accelerate as a way for organizations to address the challenges associated with the explosion of data in their environments.

One last trend that I’ll mention is the growing number of state bar associations that have adopted some sort of expectation or guidance for technology competence among their bar members.  I believe that there are 26 states now that have adopted some version of Comment 8 to ABA Model Rule 1.1 and Florida has become the first state to actually mandate technology CLE for their attorneys – three hours of technology CLE over a three year period.  At CloudNine, we believe that educated clients make the best clients and we’ve tried to do our part for the past several years to help educate the legal profession with our blog and, this year, we are adding educational webcasts (with CLE certification in some states) to help educate lawyers.  While I think we still have a long way to go before the legal profession is generally knowledgeable about technology, I think the increased focus on technology competence along with the continued trend toward simplified discovery automation puts attorneys in a better position than ever to use technology to support their discovery needs.

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

In addition to the educational webcasts that we have started conducting this year, CloudNine recently announced our latest accomplishment in simplified discovery automation with our integration with Relativity that provides Relativity users with a client application that automates the upload, processing, and ingestion of ESI into Relativity, directly from their desktop.  Just as CloudNine users have been able to automate the upload, processing, and ingestion of ESI into CloudNine for several years now, the universe of more than 150,000 Relativity users will now be able to do the same.

We have several other new features and capabilities that provide simplified discovery automation capabilities to our clients that are also in the works and I look forward to having more information to share on those soon.

We are also very active in the data discovery space that I referred to earlier, providing solutions and assistance to help clients address their data discovery needs.  We’re finding that the needs of organizations to gain insight into their data occurs long before litigation and other events trigger the duty of those organizations and CloudNine is at the forefront in helping organizations address their data discovery needs.

As I said during last year’s interview, we feel that CloudNine is the leader in simplifying discovery automation and our unique combination of Speed, Simplicity, Security and Services enables CloudNine to simplify discovery for our clients.  That continues to be our mission as a company and has been throughout our more than 14 years as a company assisting our clients.

Thanks, Brad, for participating in the interview!

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

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

Metadata Plays Key Role in $10.8 Million Whistleblower Lawsuit Verdict: eDiscovery Case Law

Earlier this month, federal jurors awarded nearly $8 million to the former general counsel of a company who says he was fired because he blew the whistle on his company’s potential violation of a foreign bribery law.  That award will increase to $10.8 million because the Dodd-Frank Act authorizes the doubling of back pay for whistleblower retaliation.

An article in The Recorder (Ousted Bio-Rad GC Wins Whistleblower Case, written by David Ruiz) stated that a federal jury sided with former Bio-Rad Laboratories Inc. general counsel Sanford “Sandy” Wadler in his whistleblower retaliation lawsuit against the company, after deliberating for less than three hours.

The jury awarded Wadler $2.9 million in back pay and stock compensation and $5 million for punitive damages.

“I’m extraordinarily grateful to the jury for its very thoughtful verdict in finding that whistleblowers need protection,” lead attorney James Wagstaffe (of law firm Kerr & Wagstaffe) said immediately after the verdict was read. “You’re not supposed to fault whistleblowers for raising legitimate concerns about potential corruption.”

Wagstaffe also said that back pay damages are doubled, increasing the total award to $10.8 million.

Wadler, who was fired from his post at Bio-Rad in June 2013, maintained that he was forced out because he blew the whistle on potential Foreign Corrupt Practices Act violations by the company in China.  Jurors found that Wadler’s whistleblowing activities were a significant reason the company fired him in June of that year.

Wadler’s lawyers at Kerr & Wagstaffe were able to undermine some company testimony by pointing to a lack of documentation about Wadler’s alleged outbursts, partly by repeatedly returning to the last review that Wadler received while on the job in December 2012, which was largely positive.

A key aspect of the jury’s decision related to the metadata associated with Wadler’s most recent performance evaluation, which was apparently dated in April 2013.  Before the jury reached its verdict, it asked about the timing of that performance evaluation. According to Wagstaffe, metadata showed the performance evaluation was actually created in July 2013, a full month after Wadler’s termination. The jury asked if the date referred to the document’s creation or its modification. It referred to creation, said U.S. Magistrate Judge Joseph Spero, who presided over the case.

In an interview with Courthouse News, Wagstaffe said the metadata evidence helped tip the scale in Wadler’s favor and that the “fake job review” (his words, not mine) was a major piece of evidence that helped tip the scale.

Hat tip to Sharon Nelson at Ride the Lightning for her post about the story.

So, what do you think?  Can metadata prove when a document was created?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. — Happy Valentine’s Day!

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.

Announcing Seventh Annual LTNY Thought Leader Series!: eDiscovery Trends

The annual appearance of the dancing light bulb can only mean one thing – it’s time for another thought leader series!  Over our nearly 6 1/2 years of our existence, eDiscovery Daily has published several thought leader interviews from various thought leaders throughout the eDiscovery community, including an annual series of interviews at LegalTech New York (LTNY), aka LegalWeek.  For the seventh(!) consecutive year, we’re pleased to introduce the schedule for this year’s series, which will begin Wednesday, February 15.

Here are the interviews that we will be publishing over the next few weeks:

Wednesday, February 15: Brad Jenkins, CEO of CloudNine™.  Brad has over 20 years of experience as an entrepreneur, as well as 15 years leading customer focused companies in the litigation technology arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Friday, February 17: David Horrigan, E-Discovery Counsel and Legal Content Director, kCura.  An attorney, law school guest lecturer, e-discovery industry analyst, and award-winning journalist, David has served as counsel at the Entertainment Software Association, reporter and assistant editor at The National Law Journal, and analyst and counsel at 451 Research. He serves on the Editorial Advisory Board of Legaltech News and the Data Law Board of Advisors at the Yeshiva University Cardozo Law School. David holds a Juris Doctor from the University of Florida, and he studied international law at Universiteit Leiden in the Netherlands.

Monday, February 20: Mary Mack, Executive Director of the Association of Certified eDiscovery Specialists (ACEDS).  E-discovery luminary and recipient of the Masters Conference Educator of the Year 2016, Mary provides ACEDS and its membership more than a decade of strong credibility and sound leadership within the e-discovery community. Mary is the author of A Process of Illumination: The Practical Guide to Electronic Discovery, considered by many to be the first popular book on e-discovery. She is the co-editor of the Thomson Reuters West treatise, eDiscovery for Corporate Counsel.

Wednesday, February 22: George Socha, Managing Director, Forensic Technology Services, BDO.  Co-founder of EDRM, George is a Managing Director in BDO Consulting’s Forensic Technology Services practice. Named an “E-Discovery Trailblazer” by The American Lawyer, he assists corporate, law firm, and government clients with all facets of electronic discovery, including information governance, domestically and globally. Prior to joining BDO, George spent 16 years as a litigation attorney in private practice before starting his own consulting firm focused on e-discovery issues in 2003. He received his law degree from Cornell Law School and his undergraduate degree from the University of Wisconsin-Madison.

Friday, February 24: Jason R. Baron, Of Counsel, Drinker Biddle & Reath LLP, Part 1 and Part 2.  Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice and co-chair of the Information Governance Initiative.  An internationally recognized speaker and author on the preservation of electronic documents, Jason previously served as the first Director of Litigation for the U.S. National Archives and Records Administration, and as trial lawyer and senior counsel at the Department of Justice.  He also was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.  He served as editor of the recently published ABA book, Perspectives on Predictive Coding and Other Advanced Search Methods for the Legal Practitioner.

Monday, February 27: Craig Ball, Law Offices of Craig D. Ball, P.C., Part 1 and Part 2.  A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered almost 2,000 presentations and papers.  Craig’s articles on forensic technology and electronic discovery frequently appear in the national media and he teaches E-Discovery and Digital Evidence at the University of Texas School of Law.  He currently blogs on eDiscovery topics at ballinyourcourt.com.

Once again, thanks to everyone for their time in participating in these interviews!  Once we publish all of them, we will link to each of them from this post.

Want to look back at previous years’ interviews?  Here are links to our 2016, 2015, 2014, 2013 and 2012 interview series.

So, what do you think?  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.

I Don’t Mean to Be Critical, But Here are Some Critical Trends: eDiscovery Trends

It must be our week for surveys.  Yesterday, we covered the Complex Discovery Winter 2017 eDiscovery Business Confidence Survey results.  Here’s another set of surveys that look at critical trends for AmLaw 200 law firms and Fortune 500 corporations.

In the past several days, The Cowen Group (TCG) has released two surveys: The AmLaw 200 eDiscovery Critical Trends Report and the Corporate eDiscovery Critical Trends Report.  Here are the top 5 takeaways identified by David Cowen for each report:

AmLaw 200 eDiscovery Critical Trends Report: 75 of the AmLaw 200 participated in this survey

  1. Top Three eDiscovery, Data or Information Governance Pain Points: 1) Variety of data sources (46%), 2) Institutional resistance to change (41%), 3) Volume of data growth (39%).
  2. In the next six months, 78% of respondents anticipate their eDiscovery/Litigation Support workload will increase.
  3. 38% of respondents expect their litigation support/eDiscovery group or department to increase in size in the next six months.
  4. In the next 6 to 12 months, 91% of respondents would like to increase their usage of artificial intelligence and advanced analytics.
  5. The top five technology investment priorities are: 1) Review technology (42%), 2) Project management workflow software (41%), 3) Predictive analytics (36%), 4) Matter management (33%), 5) Knowledge management (29%).

Corporate eDiscovery Critical Trends Report: 44 of the Fortune 500 participated in this survey.

  1. In the next six months, 7% of respondents anticipate their eDiscovery/Litigation Support workload will increase.
  2. 77% of respondents expect to increase their use of predictive analytics and artificial intelligence in the next 6 to 12 months but many lack the internal resources to execute.
  3. 43% of the F-500 will increase their use of strategic partners and vendors in response to the increase in eDiscovery workload and complexity of tools and technology in 2017.
  4. 85% of corporate counsel will not be adding staff- thus relying more on strategic partners and service providers.
  5. The top four technology investment priorities are: 1) Project management workflow software (40%), 2) Knowledge management (34%), 3) tie Review technology and Legal Hold (each at 31%).

For more information or to request a full copy of the AmLaw 200 and/or Corporate Discovery reports, click on the appropriate links above.

The Cowen Group stays busy!  Here is a link to their 2016 eDiscovery and Litigation Support Salary Report we covered back in November.

So, what do you think?  Do any of these numbers surprise 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. 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.

Are We More Confident in eDiscovery Business Than We Were a Year Ago?: eDiscovery Trends

The results are in from the Complex Discovery Winter 2017 eDiscovery Business Confidence Survey, which has just concluded and (as was the case for the 2016 Winter, Spring, Summer and Fall 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.  So, to avoid redundancy, I will primarily focus on trends over the past four surveys to see how the responses have varied from quarter to quarter and (for the first time since this is the second year of the quarterly survey) will take a look at a year over year comparison to the Winter 2016 survey.

The Winter 2017 Survey response period was initiated on January 20, and continued until registration of 100 responses on February 6. Rob notes that this limiting of responders to 100 individuals is new with the Winter 2017 survey and is designed to create linearity in the number of responses for each quarterly survey (it also gets rid of those pesky decimal points in the results). This quarter the 100 responses were received at the fastest rate in the history of the survey.  So, in the future, if you want your voice heard, respond early!

Percentage of Provider Respondents Rising Back Up: Of the types of respondents, 56 out of 100 were either Software and/or Services Provider (40%) or Consultancy (16%) for a total of 56% 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 33%.  No other type of respondents was over 4%.  Here’s a graphical representation of the trend over the past four quarters:

When comparing this year’s Winter survey to last year’s survey, it is clear that (despite the rise in percentage of provider respondents this time), the survey is still more diverse than before, especially with regard to the percentage of law firm respondents:

Not Quite Half of Respondents Consider Business to Be Good: Less than half (49%, to be exact) of respondents rated the current general business conditions for eDiscovery in their segment to be good, with 9% rating business conditions as bad.  Last quarter, those numbers were 56.6% and 6.2% respectively, so this quarter reflects less bullish than last quarter.  Will that trend continue?  We’ll see.  Here is the trend for the last four quarterly surveys:

When comparing against last year’s Winter survey, the difference is even more pronounced with nearly a 10% decrease of respondents rating current general business conditions for eDiscovery in their segment to be good:

Almost Everyone Still Expects eDiscovery Business Conditions to be as Good or Better Six Months From Now: Almost all respondents (96%) expect business conditions will be in their segment to be the same or better six months from now (slightly above last quarter’s 94.7%), but the percentage expecting business to be better fell to an all-time low of 40%.  Revenue (at combined 90% for the same or better) and profit (combined 86%) dropped from last quarter.  Here is the profits trend for the last four quarterly surveys:

When compared against last year’s Winter survey, the distribution for profits six months from now was less bullish with a 6% decrease of respondents expecting higher profits and a 4% increase of respondents expecting lower profits:

Increasing Volumes of Data and Budgetary Constraints Are Most Impactful to eDiscovery Business: Increasing Volumes of Data and Budgetary Constraints were tied for the top of the most impactful factors to the business of eDiscovery over the next six months at 26% each (perhaps budgeting is more notable during the winter?).  Increasing Types of Data (17%) stayed at third, followed by Data Security (15%), with Lack of Personnel and Inadequate Technology (both at 8%) bringing up the rear.  The graph below illustrates the distribution across the most recent four quarterly surveys.

A year ago, Budgetary Constraints was voted as the most impactful to eDiscovery business, so maybe there is something to the time of year theory with regard to budget considerations:

Still a Fairly Even Split Among the Roles: Last time, the “rank and file” dominated the responses with 73.5% of total responses.  This time, Executive Leadership respondents rose back up (to 38%), though Operational Management was the leader (at 39%) and Tactical Execution dropped a bit (down to 23%).  Here’s the breakdown of the last four quarters:

The survey is certainly more distributed than last year, where Executive Leadership was a clear majority of the responses.  Does that mean that the “rank and file” are less bullish than Execs?  Or does it mean that eDiscovery professionals in general are less bullish than before?  Hmmm…

Again, Rob has published the results on his site here, which shows responses to additional questions not referenced here.  Check it 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.

Thoughts About LegalTech New York 2017: eDiscovery Trends

Another LegalTech New York (LTNY) – or “LegalWeek” as they now like to call the event – is in the books.  What did attendees at the conference think about this year’s show?  Let’s take a look.

I reached out to several attendees (some of whom I met with during the show) to get their thoughts and impressions of this year’s show, how it differed from past shows (if at all) and if they had suggestions for improvements.  As a few pointed out in responding, these are their personal opinions and observations regarding the show, not those of their employer or clients.  Here is what they had to say:

George Socha, Managing Director at BDO: “Cybersecurity concerns are driving IG investments, many of which will draw on e-discovery tools, techniques and expertise.”

Shawn Gaines, Director of Marketing Communications at kCura: “As always, Legaltech was an awesome place to meet up with the rest of the legal technology community, leading to great meetings and one-on-one conversations.  Traffic in the exhibit hall started strong, but seemed to fade earlier than usual, perhaps due to what seemed like a smaller set of exhibitors.  The quality of the people there, however, still can’t be beat—and there aren’t too many other opportunities like this to bring together people from all ends of the industry.”

Rob Robinson, Author of the Complex Discovery blog: “Having participated in some way in Legaltech since 2006, it is always fascinating to see how many authors and reporters parachute into the information stream of Legaltech in early January and then add their icing to the cake of content being shared by industry experts. This reporting serves the purpose of highlighting topics but many times falls short of the investigative and educational journalism that could benefit industry professionals. Instead of just providing a mouthpiece and distribution network for the comments of individuals and companies that pay for access, it would be incredibly refreshing and beneficial to see these authors and reporters also focus on how technologies can benefit end users…Cost recovery may be a sound financial business model for ALM, but charging attendees a fee to learn more about exhibitors who have already paid for the opportunity to share their information and offerings with attendees seemed overreaching. As an event’s success is directly related to the quality and quantity of its attendees, it might be beneficial for ALM to deeply consider the impact of future access cost changes on not only finances but on perception.”

Greg Buckles, eDiscovery Consultant & Evangelist – The EDJ Group Inc.: Orange is the new black – again.  Automation and efficiency everywhere, but do the end customers really care?  Does fast track processing directly to Relativity just convert your technology to a commodity?  LTNY losing traction? Booths down, crowd down and most briefing suites in adjacent hotels?

Michele Lange, Director of Thought Leadership at KrolLDiscovery: “Habitual LTNY attendees were happy to report that the stalwart event remained largely unchanged as part of the greater Legalweek experience, with many attendees welcoming the additional, high-quality keynotes occurring throughout the week. Attendees also commented on the reduction in time in the educational sessions – from 75 to 60 minutes – to better align with CLE requirements.  Panelists (many of which were newcomers to the LTNY speaking stage) were more succinct in their remarks, resulting in better, more focused discussions this year.”

Andrew Haslam, eDisclosure Project Manager at Squire Patton Boggs: “For the fourth year in a row, the number of exhibitors was down, what was stretched across three areas, could easily have fitted into 2. There used to be a whole section of training organisations, nary a one this time around. Without the central show, all the fringe activities will struggle to justify themselves, to reuse the Ernest Hemmingway’s quote from Andrew McAfee’s wonderful day 1 Keynote, ‘How did you go bankrupt?’ ‘Two ways. Gradually and then suddenly.’ Are we seeing ALM tipping into a sudden decline? Was this the reason for charging people an admittance fee, or was it a far nobler desire to keep out the ‘mouchers’.  Let’s see what next year brings.”

Drew Macaulay, Managing Director at Consilio: “My impression of LegalTech this year was that it was definitely quieter in the exhibit halls, but still busy in the educational tracks, particularly those that related to regulatory investigations and cross border discovery challenges and best practices. In particular, there was a lot of interest in the potential impact of the forthcoming General Data Protection Regulation, which comes into force in May 2018 and has broad implications for law firms, corporations and eDiscovery firms alike.”

Bill Piwonka, Chief Marketing Officer at Exterro: “Legal Week this year was in tune with the trends we’ve been seeing, namely that while people in the industry are becoming more e-discovery proficient, there is still much to be learned. With the FRCP amendments, new technologies, ever-growing data volumes and types, and a large number of organizations moving to the cloud, the latest knowledge on how to stay in front of these changes is more vital than ever. LegalWeek 2017 was instrumental in providing that knowledge, and more, for all who attended.”

David Horrigan, e-Discovery Counsel and Legal Content Director at kCura: “This year, ALM expanded the show from Legaltech to Legalweek, bringing more legal issues into a larger overall event.  I think many speakers did a great job in showing how technology relates to all areas of the law.  For instance, Dean Erwin Chemerinsky was one who did an outstanding job of bringing other areas of the law into the rest of the program.  Many sessions did an excellent job of really hitting home how technology and the law aren’t just for programmers and legal teams—they affect everyday life.”

Craig Ball, Noted eDiscovery Thought Leader and Author of Ball in Your Court blog: “Though I enjoyed LTNY 2017 as much as any before (and for me it’s been two decades of LTNY), this year’s show seemed a shadow of its former self.  Traffic was down, and the plenary keynotes saw a fraction of their customary attendance.  Consolidation among e-discovery vendors was striking in terms of its impact on the show floor.  Maybe not an entirely bad thing as e-discovery had all but taken over the show.  I witnessed these things but expect that ALM will report that LTNY was still bigger and better and HUGER by every measure.  As they say in New York, Mazeltov!”

“I thought the decision to charge for floor and plenary admission was not implemented wisely.  I’d charge a modest amount online to register but credit it back when attendees showed up.  Considering how much vendors pay to be onsite, the admission charge felt…tacky.”

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As for my own thoughts, it seems to me that more and more of the activities are outside the conference as attendees take the opportunity provided by the biggest legal technology show of the year to arrange meetings to further business relationships.  While that’s great for doing business, it’s not as great for the show itself as many of the attendees find it difficult to find time to actually attend sessions or visit the exhibit hall.  Many of the people I spoke with during the show had yet to attend the show itself.

Personally, I always try to find time to attend at least a few sessions and the ones I attended this year were first rate, as always.  My particular favorite was the keynote on Day 2 (February 1) of the conference regarding effects of the December 2015 Rules amendments discussed by several judges and attorneys reflecting both the defense and plaintiff viewpoints.  As for the Exhibit Hall, I spent some time in the Hall and spoke with several of the exhibitors, who noted that attendance in the Exhibit Hall seemed diminished compared to previous years (especially after the first day).  It will be interesting to see if exhibitors raise concerns over the decision to charge for Exhibits only passes and the potential impact it has on attendance in the Hall.

So, what do you think?  Did you attend this year’s LegalTech?  If so, what did you think of the conference?  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.

Is Keyword Searching Dead? Find Out Here: eDiscovery Best Practices

As I fly back from NYC after Legal Tech New York (and after a weekend spent with the wife and kids), I need an easy but interesting topic to write about for Tuesday’s post.  This’ll do.  :o)

With all of the hype surrounding Technology Assisted Review, many wonder if keyword search still has a place in eDiscovery.  Perhaps it does, if it’s conducted properly.

Later this month, you can decide for yourself.  On Tuesday, February 28 at 12:00pm CT (1:00pm ET, 10:00 am PT), CloudNine will be conducting a webcast titled Best Practices for eDiscovery Searching via the BrightTALK network.

Our webcast session will cover goals for effective searching, what to consider prior to collecting ESI that will be subject to search, mechanisms for culling prior to searching, mechanisms for improving search recall and precision, challenges to effective searching and recommended best practices for searching and validating your search results to ensure effective search results.

We will cover many of the concepts we’ve covered on this blog over the years, showing you how not to get wild with wildcards, how to cull out email signature logos from review, how to expand the recall of searches to capture additional hits that might be missed due to misspellings or poor quality text, how to effectively conduct name searches to maximize hit retrieval and how to account for noise words in your search results.

We will also use external sites to help us check our proposed wildcard terms for variations to ensure that our term isn’t too broad (or too narrow) and we will use other sites to help us determine how large of a sample size we need for testing our search result set and even generate our sample set for us.

And, finally, we will look at relevant case law regarding the use of search to identify good and bad examples (i.e., what to do and what NOT to do) when performing searches to retrieve potentially responsive ESI and discuss a proper work flow to QC your search results.

Karen DeSouza, the Director of Review Services at CloudNine, and I will conduct this hour long webcast to discuss best practices for effective searching that may just help you decide whether keyword search still has a place in your eDiscovery workflow.  Click here to register for the webinar.  Hope to see you then!

So, what do you think?  Is keyword searching dead?  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.