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Electronic Discovery

Masters Conference DC, Day Two: eDiscovery Trends

As we indicated yesterday and Monday, The Masters Conference has been going on in Washington DC! Today’s the last day! Let’s take a look at today’s events!

The conference is being held at the Capital Hilton, 1001 16th St NW, Washington, DC 20036. Registration begins at 7:30am again today, with sessions starting at 8:30am.

Here is the list of today’s sessions:

8:30am – 9:30am:

Multiple Strengths, One Goal: Building Rock Star Diverse Teams

Moderator: Zelda Owens, CSSGB, Panelists: Aaron Crews, Debbie Reynolds, Mary Ellen Connerty, Monica Bay

Moving from Models to Standards: Next Steps in Maturing the Industry

Moderator: Eric P. Mandel, Panelists: Eli Nelson, Kevin Clark, Sunil Ohri, Tara Emory

9:45am – 10:45am:

The Five Forces Impacting Corporate eDiscovery: Five forces on how to save corporations money, locate your documents quicker, make fewer mistakes and make you look like a star. This panel discusses practical ways to leverage technology so you can do more of what you do best as a lawyer. Learn to trust the technology to make you more efficient and more profitable.

Moderator: Adam Kuhn, Panelists: Aaron Crews, Ethan Ackerman, Michael E. Lackey, Neguiel Hicks

FRCP: Amendments to the Federal Rules of Civil Procedure: The Early Returns: This presentation will review the proposed changes to the FRCP, including e-Discovery conduct, insight into how federal judges are already thinking about the changes, and how to adjust your current and future litigation strategies and e-Discovery processes in light of the proposed amendments. The legal community will definitely be altered in the coming years as a direct result of the FRCP alterations. Get the jump on any surprises with this informative and interesting presentation.

Moderator: Ralph Colby Losey, Panelists: Cheryl A. Feeley, David Kinzer, Jennifer A. Brennan

11:00am – 12:00pm:

Revealing the New Privacy World of the EU/US Privacy Shield and the GDPR

Moderator: Evelyn Minnick, Panelists: James Daley, Nikos Leoutsarakos, Paul A. Meyer.

“Seeing is believing” – How Video is Changing the Way We Win Cases

Moderator: Ian Campbell, Panelists: Chad Papenfuss, Deena Coffman, Robert DeBord, Susan Taylor.

12:15pm to 1:35pm:

Explore today’s best practices for investigations, ranging from internal investigations to highly complex regulatory investigations

Moderator: Krista Fuller, Panelists: Aaron Crews, Antonia Rahneva, John Rosenthal, Thomas Matzen.

1:45pm – 2:45pm:

Latest Cybersecurity Trends in Government

Moderator: James Bourie, Panelists: Allison Bender, Donald Codling, Justin Zeefe.

Faster, Bigger, Better eDiscovery: Leveraging Technology to its Fullest: As the volume of information grows, corporations are pushing outside counsel to find cheaper and more efficient ways to handle eDiscovery. However, today’s litigation is too often forged without a master plan – plagued by errors, delays and unnecessary expense. What’s needed is a more streamlined, systematic approach to curb the drain on time and resources that eDiscovery has become. In this session, industry experts will address how to best leverage a variety of technologies to help drive down client costs and increase productivity.

Topics include:

  • TAR and leveraging analytics
  • Unique file redactions
  • The future of technology in eDiscovery

Moderator: Bruce Markowitz, Panelists: Antigone Peyton, Oral Pottinger, Paul A. Meyer, Robert D. Keeling.

3:00pm – 4:00pm:

Cybersecurity: and in House perspective: Join two top in-house lawyers. To hear about how they address top cybersecurity issues internally and externally.

Moderator: Christina Ayiotis, Panelists: Hilary Hageman, Michelle Beistle.

Streamline eDiscovery Workflows that Deming would Love

Moderator: Tammy Doss, Panelists: Allison Stanton, Nick Carter, Shea Leitch

4:15pm – 5:15pm:

JUDGES PANEL

Panelist: Hon. Ronald J. Hedges.

There will also be a happy hour at 6pm “focused on enjoying and reflecting on the next 10 years”.

So, what do you think? Did you attend The Masters Conference this week? If so, what did you think? And, 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.

Masters Conference DC, Day One: eDiscovery Trends

As we indicated yesterday, The Masters Conference is going on today and tomorrow in Washington DC!  Let’s take a look at today’s events!

The conference is being held at the Capital Hilton, 1001 16th St NW, Washington, DC 20036.  Registration begins at 7:30am on Tuesday, with sessions starting at 8:45am.  Sessions run all day Tuesday and Wednesday.

Here is the list of today’s sessions:

8:30am – 10:45am:

Intro to becoming a Certified eDiscovery Specialist: Mary Mack and Helen Bergman Moure will be presenting LIVE Part One of The CEDS Online Exam Prep Seminar which is the ultimate tool to guide you through all the steps of the e-discovery process and prepare you for the CEDS Certification exam.

Part One Seminar topics include:

  • Information Management and Litigation Readiness
  • Project Planning
  • Litigation Hold Implementation

Participants are eligible for a substantially discounted price on the balance of the Certified eDiscovery Specialist training package.

11:00am – 12:00pm:

Future of eDiscovery: Riding the Analytics Revolution: Big Data plays a big role in litigation for many law firms and organizations. Having the ability to cull down your data earlier in the litigation cycle enables your firm or organization to work more efficiently and competitively. Technology is increasingly playing a key role in helping firms and organizations effectively identify and manage the data most important to your litigation. This session will discuss the emerging trends around analytics in eDiscovery, and how your firm or organization can implement best practices to ensure the highest quality results at a lower cost than traditional document reviews.

Moderator: Tom O’Connor, Panelists: Jeannine M. Kenney, Sunil Ohri, Tracy D. Drynan.

The Internet of Things (IoT) Creates a Thousand Points of (Evidentiary) Light. Can You See It?: The Web 3.0 has been dubbed the “Internet of Things”. This is an ecosystem of interconnected sensory devices that perform coordinated preprogramed – and even learned – tasks without the need for continuous human input. Combined with existing data sources (ie. e-mail, social media, smart phones, enterprise applications, and system logs), this represents an extremely rich source of data.

Within that data lies evidence. Valuable evidence.

Also within that data lies duty, obligation, risk, and opportunity for litigators. Join us for a discussion about the internet of Things, and all things structured, and how it fits (or doesn’t fit) within the EDRM.

Moderator: Charlie Platt, Panelists: Don Meyers, Mason Pan, Nick Kaywork.

12:00pm to 1:30pm:

10 Years Back, 10 Years Forward: The Evolution of Automation in eDiscovery: This unique session highlights the progress of eDiscovery technologies during the last decade and looks forward through the lens of innovation to the next ten years data discovery. This information-packed session includes some of the world’s foremost authorities on eDiscovery who will be sharing their thoughts, considerations, and recommended best practices for the use of Technology-Assisted Review. The session format will allow each expert an opportunity to present followed by a short dialogue. Additionally, the conclusion of this expanded lunchtime session will recognize at a high-level the aggregate recommendations of this expert panel.

Moderator: Mary Mack, Panelists: Bill Dimm, Bill Speros, David Horrigan, Doug Austin, George Socha.

1:45pm – 2:45pm:

Cybersecurity, eDiscovery, and Your Outside Counsel: What you don’t know CAN hurt you: As technology adoption gains strength across the legal industry, and both corporate counsel and law firms expand their use of outsourced vendors for legal support services such as eDiscovery, understanding data privacy and information security risks has become a critical element of vendor and law firm management for every company.

With the number of threats, hacks, and breaches at an all-time high, what you don’t know about your vendors’ cybersecurity practices can hurt you. This session will explore:

  • Common cybersecurity challenges in today’s legal and eDiscovery environment
  • Hidden issues and “land minds” that can increase your data security risks
  • Managing security with offshore vendors: Risky proposition or smart solution?
  • Beyond ISO 27001 basics: Advanced methods for protecting client data

Plus, attendees will receive a valuable take away tool, Evaluating Cybersecurity Practices: 10 Questions to Ask Outside Counsel and eDiscovery Vendors.

Moderator: Christian Dodd, Panelists: Antonella Commiato, David M. Hickey, Ken Smiley.

Benefits and Challenges in Creating an Information Governance (IG) Program: Information governance is a comparatively new concept and is evolving fast. Gartner defines information governance as the specification of decision rights and an accountability framework to encourage desirable behavior in the valuation, creation, storage, use, archival and deletion of information. It includes the processes, roles, standards and metrics that ensure the effective and efficient use of information in enabling an organization to achieve its goals. In this panel discussion we will discuss building and enhancing your information governance program. Attendees will learn about how this impacts downstream and what it means for you the e-Discovery professional.

Moderator: Dan Elam, Panelists: Carlos A. Leon, Kenya Parrish-Dixon, Esq., CEDS, Leigh Isaacs.

3:00pm – 4:00pm:

Analytics in our Community covering the pros and cons of the latest trends

Moderator: Richard Clark, Panelists: Anthony (AJ) Dobson, Ethan Ackerman, Paul Gettmann.

Spanning the gap: Discovery Counsel and Project Management

Moderator: Alexander Lewis, Panelists: Antigone Peyton, Bryant Gauthier, Ellen Pyle

 

4:15pm – 5:15pm:

Cybersecurity Bridging the GAP between Cybersecurity and The Legal Community

Moderator: Kevin Clark, Panelists: Leigh Isaacs, Scott Bilbrey, Susan Taylor.

Legal Project Management

Moderator: Bruce Malter, CEDS, Panelists: Ian D. McCauley, Michael Quartararo, Scott Bilbrey

CloudNine will be co-sponsoring the Happy Hour with ACEDS at 5:30pm, followed by the 10th Anniversary Masters Awards Gala dinner, which is benefiting the Georgetown Lombardi Comprehensive Cancer Center.

Click here to register for the conference.  It’s not too late!

So, what do you think?  Are you going to The Masters Conference this week?  If so, come join us!  And, 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.

This Week is The Time to “Master” Your Knowledge of eDiscovery In Our Nation’s Capital!: eDiscovery Trends

This week is the week!  If you’re in the Washington DC area tomorrow and Wednesday, join us at The Masters Conference!

The Masters Conference brings together leading experts and professionals from law firms, corporations and the bench to develop strategies, practices and resources for managing the information life cycle.  This one will be unique as The Masters Conference will be celebrating its 10th anniversary!  Like the other events, the Washington DC Conference will cover a wide range of topics from CEDS certification prep by ACEDS to the impact of social media and the Internet of Things (IoT) on eDiscovery risks and costs to case and project management and the meaning of cybersecurity to the legal community.

Unlike the other events, the DC event is a two-day event, held this Tuesday and Wednesday at the Capital Hilton, 1001 16th St NW, Washington, DC 20036.  Registration begins at 7:30am on Tuesday, with sessions starting at 8:45am.  Sessions run all day Tuesday and Wednesday.

CloudNine will again be sponsoring a session, this time the session is titled 10 Years Forward, 10 Years Back: Automation in eDiscovery, which is the lunch panel at noon on Tuesday.  I am excited to be participating again with a tremendous panel: George Socha – Managing Director, BDO Consulting and Co-Founder of EDRM, David Horrigan – E-Discovery Counsel and Legal Content Director, kCura, Bill Dimm – CEO, Hot Neuron and Bill Speros – Evidence Consulting Attorney, Speros & Associates, LLC.  Mary Mack, Executive Director of ACEDS will be moderator of the session.

The unique session highlights the progress of eDiscovery technologies during the last decade and looks forward through the lens of innovation to the next ten years data discovery, including some of the world’s foremost authorities on eDiscovery who will be sharing their thoughts, considerations, and recommended best practices for the use of Technology-Assisted Review. The session format will allow each expert an opportunity to present followed by a short dialogue. Additionally, the conclusion of this expanded lunchtime session will recognize at a high-level the aggregate recommendations of this expert panel.

In addition, CloudNine will also be co-sponsoring the Tuesday Happy Hour with ACEDS.  And, eDiscovery Daily will be covering the two days of the event, with a list of the sessions to be covered each day!

Click here to register for the conference.  Today is the last day to get the $165 rate for two full days of sessions; otherwise it’s $565(!).  There is also vendor pricing for attendance and having a booth at the conference.

So, what do you think?  Are you going to be in Washington DC this Tuesday and Wednesday?  If so, come join us!  And, 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.

How to Avoid Getting “Burned” by Redactions: eDiscovery Best Practices

Having addressed this issue with a client recently, it seems appropriate to revisit this topic…

On the surface, it may seem easy enough to redact a document during eDiscovery review to obscure confidential or privileged information.  All you need to do is draw a black box over the affected text, right?  Not necessarily.  There’s a lot more to consider in order to ensure that you don’t inadvertently produce information that was intended to be redacted.  Here are a few things to consider to avoid getting “burned by redaction failures.

Failure to “Burn” the Redaction into the Image

If the redaction isn’t “burned” into the image so that it cannot be removed, the redacted data can still be viewed.  Especially when your images are Adobe Acrobat PDF files, the most common mistake is to redact by obscuring the text by drawing a black box over the text or images you want redacted.  A simple “cut and paste” can remove the black box, revealing the redacted text.  Acrobat provides a redaction tool (for those editing the PDF there) to properly apply a redaction – it’s best to save the file to a new name after the redaction has been applied.

If you’re using a review application to manage the review, the application should ensure a “burned in” redaction for anything exported or printed, regardless of whether it lets you look at the redacted data within the application itself.  For example, CloudNine provides a tool to enable the reviewer to draw a gray box over the text to be redacted so that text can still be viewed within the application.  However, if the file is exported or printed, that box gets “burned” in as a black box to completely obscure the redacted text.

Failing to Update Corresponding Text Files to Remove Redacted Text

Even if the image is handled properly, you can still disclose redacted text if you don’t make sure that the corresponding text file, whether extracted from the native file or generated via Optical Character Recognition (OCR), isn’t updated to remove the redacted text.  If you don’t update the corresponding text files, you’re allowing redacted text to slip through the production “back door”.  This happens more often than you might think.

Producing Un-Redacted Native Files

If you’re producing native files, you’ve hopefully discussed with opposing counsel how to handle native files that require redaction.  Typically, the approach is to convert those to an image format and redact the image.  Sometimes the parties agree to “redact” the native files themselves and produce those.  If so, as is the case with Adobe PDF files, there’s a right way and wrong way to redact native files.  Changing the text to white or the background to match the text color is not the same as redacting the text.  All you have to do is to revert back to the original formatting or simply highlight the affected area to see the redacted text.  Instead, you’ll want to agree on a procedure where the text is deleted or replaced with an equal amount of meaningless content (e.g., all “X”s) to preserve text flow and pagination (make sure track changes is off before redacting).  You may even want to agree to copy the entire content of a redacted document to a new file (to remove residual document composition information that might remain).

Failing to Redact Metadata

You may redact content on the document that you produce separately as metadata, via a load or data file.  Failing to check the produced metadata for redacted documents could enable redacted data to slip through.  So, don’t forget to check and remove any sensitive data here, as well.

Quality Control (QC) Check before Producing

Generally, when producing documents with redactions, you should have a checklist that ensures that image redactions are “burned” in, that redacted native files (if produced natively) are properly redacted, and that corresponding text files and metadata have been checked to ensure that redacted data has been removed from those as well.  Otherwise, you could be “burned” by inadvertent production of redacted materials.

P.S., to see what I “redacted” up above, highlight it with your cursor.  :o)

So, what do you think?  How do you handle redactions within your productions?  Do you have a process to QC check redactions before producing?  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.

Time for the Fall eDiscovery Business Confidence Survey!: eDiscovery Trends

We’ve covered three rounds of the quarterly eDiscovery Business Confidence Survey created by Rob Robinson and conducted on his terrific Complex Discovery site (previous results are here, here and here).  Last time, sponsorship from ACEDS and promotion from EDRM, strong>LTPI, Masters Conference, and Women in eDiscovery helped increase the number of respondents dramatically (more than the first two surveys combined).  Now, it’s time for the Fall 2016 Survey to complete the cycle!

As before, the eDiscovery Business Confidence Survey is a non-scientific survey designed to provide insight into the business confidence level of individuals working in the eDiscovery ecosystem. The term ‘business’ represents the economic factors that impact the creation, delivery, and consumption of eDiscovery products and services.

Also as before, the survey asks questions related to how you rate general business conditions for eDiscovery in your segment of the eDiscovery market, both current and six months from now, a general sense of where you think revenue and profits will be for your segment of the market in six months and which issue do you think will most impact the business of eDiscovery over the next six months, among other questions.  It’s a simple nine question survey that literally takes about a minute to complete.  Who hasn’t got a minute to provide useful information?

Individual answers are kept confidential, with the aggregate results to be published on the ACEDS website (News & Press), on the Complex Discovery blog, and on selected ACEDS Affiliate websites and blogs (we’re one of those and we’ll cover the results as we have for the first three surveys) upon completion of the response period, which started on Tuesday and goes through Wednesday, November 30 (extra time this time for even more responses!).

Last quarter, ACEDS even conducted a webinar led by ACEDS Executive Director Mary Mack and sponsored by CloudNine, with expert commentary from panelists George Socha, Co-Founder of EDRM and Managing Director of Thought Leadership at BDO, Eric P. Mandel, Managing Member at Indicium Law PLC and Member of the Board for LTPI, Zach Warren, Editor in Chief of Legaltech News and me(!).

The more respondents there are, the more useful the results will be!  What more do you need?  Click here to take the survey yourself.  Let’s go for a new record!

So, what do you think?  Are you confident in the state of business within the eDiscovery industry?  Share your thoughts in the survey and, as always, please share any comments you might have with us or let us know 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

Dropped Cell Phone Does Not Lead to Spoliation Sanctions Under Amended Rule 37(e): eDiscovery Case Law

In Shaffer v. Gaither, No. 14-00106 (W.D. N.C., Sept. 1, 2016), North Carolina District Judge Max O. Cogburn, Jr. ruled that the sanction of dismissal requested by the defendant for the plaintiff’s lost text messages was disproportionate and denied the defendant’s Motion for Sanctions.

Case Background

The defendant filed an instant motion for dismissal based on destruction of electronically stored information (“ESI”).  The plaintiff contended that she was constructively discharged when she quit her job as an Assistant District Attorney due to sexual harassment by defendant and also claimed that defendant defamed her by telling others that she was fired for having a sexual relationship with a married member of the defense bar (which she admitted, but also contended was a falsely given reason for her termination).

The defendant contended that the text messages were lost in May 2014 when plaintiff dropped the cell phone in a bathroom and lost her text messages (a fact which the plaintiff did not deny) and that at the time the phone was destroyed, plaintiff and her counsel knew of the impending litigation, having threatened litigation in a letter nearly a year earlier, and that litigation was in fact filed the month following the phone’s destruction.  In arguing against dismissal, the plaintiff claimed that these texts were not relevant as the defendant did not read them until sometime after he decided to fire plaintiff (which he admitted, but claimed that his decision to fire the plaintiff came after the paramour’s spouse told him about the texts and the alleged affair).

In her affidavit, the plaintiff indicated that she no longer had the phone or the SIM card because when she broke her phone, she made a claim against her insurance, and her insurer required her to turn in both the broken phone and the SIM card (and the texts were not available from the provider).

Judge’s Ruling

In considering the defendant’s motion for dismissal, Judge Cogburn stated that “[u]nder recently revised Rule 37(e), the duty of a party to preserve ESI arises when litigation is ‘reasonably anticipated’ and the loss of ESI is sanctionable when ‘reasonable steps to preserve’ are not taken and such information cannot be restored or replaced through additional discovery.” However, he also noted that the “sanction of dismissal is not, however, a sanction of first resort” with Rule 37(e)(1) and Rule 37(e)(2) allowing the court “to take action no greater than necessary to cure the prejudice resulting from the loss” and that “Rule 37(e)(2) allows treatment of loss under spoliation only where party acted with an intent to deprive.”

While determining that “plaintiff and her counsel failed to take reasonable steps to preserve those texts as they apparently resided only on plaintiff’s phone”, Judge Cogburn said he “cannot conclude that plaintiff acted with an intent to deprive defendant of the ESI under Rule 37(e)(2); thus, spoliation does not yet come into play.”  However, noting that testimony could determine the content of those texts, Judge Cogburn indicated that the court “has not ruled out a spoliation or modified spoliation instruction, and reserved that for consideration after it has heard the evidence at trial.”

So, what do you think?  Would a dismissal sanction have been granted under the old rules?  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.

Recommind Challenges CAL Patent: eDiscovery Trends

How do you like them apples?  After they were the subject of much scrutiny five years ago regarding their attempt to trademark “predictive coding” (only to eventually abandon it), Recommind (now OpenText after they were acquired) is now challenging the trademark of “continuous active learning” and its acronym, “CAL”.

The Notice of Opposition was filed back in July.  According to ACEDS, Maura Grossman and Gordon Cormack trademarked the terms “Continuous Active Learning” and CAL in 2015, claiming those terms’ first commercial use on April 11, 2013 and January 15, 2014.

In an ACEDS interview earlier in the year, Grossman asserted that “The primary purpose of our patents is defensive; that is, if we don’t patent our work, someone else will, and that could inhibit us from being able to use it. Similarly, if we don’t protect the marks ‘Continuous Active Learning’ and ‘CAL’ from being diluted or misused, they may go the same route as technology-assisted review and TAR.”

In 2011, USPTO signaled that Recommind’s “predictive coding” mark was “too broad” and they instead chose to focus on their patent for technology assisted review (at the time, I compared their unpopular efforts to LeBron James and the Miami Heat and wondered if he would ever win a championship – now, he has three).  Now, five years later, the shoe is on the other foot and Recommind contends in its current challenge that the trademark claims for CAL and continuous active learning should not be granted because they are generic or because they are so highly descriptive that they are incapable of acquiring distinctiveness as trademarks.

At publication time, Recommind was granted an extension by the USPTO due to settlement negotiations.  The current case discovery conference deadline is January 27, 2017, right before Legal Tech New York.  Something to talk about at this year’s show!

So, what do you think?  Will the CAL trademark stand?  Will LeBron James win four championships?  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.

Mary Mack of ACEDS: eDiscovery Trends

During the recent ILTACON conference (wrap-up post about the conference here), I had an opportunity to speak with several thought leaders that are involved with various educational initiatives in the eDiscovery industry, which spurred an idea to conduct a thought leader interview series of leaders within those organizations.  So, I will be publishing interviews with those thought leaders over the next few weeks.  Unlike the annual LegalTech New York (LTNY) interviews, I won’t be publishing a schedule for these (I’m actually still trying to line up a couple of those interviews post-show), but you will see them sprinkled in with regular blog posts over the next few weeks.

Today’s thought leader is Mary Mack.  Mary is ACEDS’ executive director and an eDiscovery pioneer. She is known for her skills in relationship and community building as well as for the depth of her eDiscovery knowledge. 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 eDiscovery. She is the co-editor of the Thomson Reuters West treatise, eDiscovery for Corporate Counsel.

Prior to joining ACEDS, Mary served in a leadership role for ZyLAB, a global provider of e-discovery and intelligent information governance software.  Before that, she was with Fios, Inc. a provider of e-discovery services to Fortune 1000 corporations and major law firms.  Among her professional affiliations, Mary is a member of the Illinois State Bar. She received her bachelor’s degree from Le Moyne College and her law degree from Northwestern University School of Law.

You’ve been Executive Director at ACEDS for about a year now.  What are some of the initiatives that ACEDS has been working on during that first year?

Early in my first year as director of ACEDS, we conducted a beta round for the new exam and the exam was formally released in January.  We also have a new web site, with an expanded interactive membership portal that supports collaboration between ACEDS members and we’re very excited about that.

We have also established partnerships with several organizations, such as EDRM, Women in eDiscovery (WiE), The Masters Conference, Legal Technology Professionals Institute (LTPI) and Complex Discovery.  And, we’re working on other partnerships, including one with ARMA International.  These are all very exciting partnerships for ACEDS and are all valued partners for ACEDS.

ACEDS is now offering an exclusive package of training and certification to ABA members, and a discount on ABA dues to ACEDS members.  ABA members can get both the certification package and the E-Discovery Essentials online training at a very special price.  The ABA will notify its members that these offerings are available and will provide a section on the ABA site for these offerings, which is how the ABA members will be able to trigger the deep discount.  Conversely, ACEDS members will also be able to get a substantial discount on ABA dues.  ABA membership, besides being a wonderful educational and networking opportunity, also provides considerable benefits with regard to health, retirement, various forms of insurance and in other areas at the kind of pricing that only an organization with 350,000 members can offer.

Many people don’t know is that the ABA allows non-lawyers to join.  And, for many of us in the eDiscovery community, it is a wonderful place to learn and contribute and demonstrate expertise.

Since the “center of gravity” for ACEDS has always been certification, where do you see the eDiscovery industry heading with regard to certifications and the demand for professionals to be certified in the marketplace?

I think certification will continue to be more embraced and I’ve already seen signs of that.  Every week, I look in the LinkedIn jobs section and see positions which require CEDS certified eDiscovery specialists.  When I started looking, there were maybe one or two listings requiring CEDS certification – now there are eight or nine.  I expect that to continue to increase, for employers to be expecting their candidates to be CEDS certified as a baseline when coming into their organization.

I’m also seeing that eDiscovery teams that have worked together as a team for a while are looking to certify their teams.  One person on the team may have expertise in collection, another person may have expertise in production, but they don’t quite understand the functional requirements that each other face.  So, to increase the speed and accuracy of team communication, as well as the ability for team members to cover for each other, we’re seeing the teams get certified.  Certification is also a good way for teams to onboard new team members, which gets them up to speed more quickly.

Another area where I’m seeing an increased demand for certification – it totally surprised me at first, but now it makes perfect sense – is in the Sales area.  More sales engineers than ever are getting certified because it gives them a way to communicate with their clients on a level playing field, especially given that many of their potential clients are also certified.  Certification makes sales people more well-rounded, and that enhances their ability to sell.

Is there anything else that ACEDS is doing that you’d like our readers to know about?

There are a few additional things that we’ve been working on. We’ve expanded our educational webinar offerings and capabilities considerably.  I’ve already alluded to E-Discovery Essentials, which is an introductory training course for persons entering eDiscovery, as well as professionals who would simply like to broaden their knowledge of the eDiscovery process, without necessarily going through the formal CEDS certification process (you do receive a certificate for completing E-Discovery Essentials, however).  Both programs give attorneys the tools they need to meet growing eDiscovery competence expectations that we’ve not only seen in California with Formal Opinion No. 2015-193, but also that we are starting to see in several other states, as well.

Thanks, Mary, 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.

You Don’t Have to Move Your Data to Manage it Effectively: Information Governance Trends

When it comes to effective records management of your organization’s data, many people think that the data has to be moved to a centralized location, such as a server or other file share, to be managed effectively.  But, you can also effectively manage that data where it resides with an In-Place Records Management solution.

As discussed by Julie Lintner in RecordLion ( What is In-Place Records Management? ), In-Place Records Management is when the Records Management Solution does not physically move the content to manage it; the content remains it its original location, but the solution is managing the retention policies and overall File Plan for the content.

As Julie notes, many solutions are not architected to use in-place records management, utilizing instead the concept of moving the content so it can be managed.  Unless there is a valid use case for moving records (e.g., transfer them to a specific area for later disposition), moving them could have security and workflow implications.

Julie notes there are many advantages of In-Place Records Management and lists five specific reasons to consider it for your organization, as follows:

  1. Your users can still find their documents in the same place. The users will still search and view the documents the same way; they don’t have to go to a different location or use a different interface to find the documents.
  2. Security does not have to be replicated. The security that you created for your documents is still applicable since the documents will not be moved.  The originating business system is still responsible for the document and controlling the security.  You don’t want to have to re-create a security plan inside your Records Management solution.  It should be noted that the Records Management solution should absolutely have the ability to lock down a record (e.g. make it immutable), but it should be able to do that without moving the record.
  3. Centralized policies. This may not be a standard feature for all solutions with In-Place Records Management, but it should be.  Your policies should be managed in a central location by a single web interface.  This is especially relevant if you have disparate systems.  Your Records Managers should have a single File Plan to manage, and that File Plan should be managed from a single interface.
  4. Your workflow does not have to change. Since the content hasn’t moved, your workflow processes do not have to be updated to incorporate a new location for the documents.  Updating workflows can become an arduous task if you have extensive workflows.  If your documents are being moved, you also need to consider if your existing workflow solution can interface with the new repository.
  5. One solution for all disparate systems. Many large organizations have a variety of repositories in which their data is stored.  If you are forced to move your content to a centralized repository, this can be an overwhelming task and may take many years to complete in a large organization.  In contrast, if your data can remain in-place, then the Records Management Solution can be implemented faster because it doesn’t have to move the data and it will just need to know the location of the data.

Just because the data may be dispersed in various places doesn’t mean it would necessarily make it more difficult to perform data discovery when you may need to collect that data for litigation, audits or other types of investigations.  Technology exists that can support that data discovery on the in-place data.

So, what do you think?  Does your organization utilize an In-Place Records Management solution?  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.

To Be or Not To Be? Not to Be, if Your Search Contains Noise Words: eDiscovery Best Practices

This is an issue that comes up frequently when my clients ask me to review their proposed search terms, or need help in understanding why a particular term doesn’t retrieve the intended result.

When providing searching assistance to my clients and reviewing their proposed list of search terms, one of the considerations I use for evaluating those terms is whether they contain any potential “noise” words that might affect their search results.  Noise words (also known as stop words) are words – such as “to”, “or”, “not”, etc. – which are so common that they are not considered useful in searches.

Search engines rely on indices to find information quickly – these indices are built and updated each time documents are loaded into the database.  To save time, both in creating the indexing and (especially) in performing searches, noise words are not indexed and are ignored in indexed searches. This enables even the most complex searches on the largest databases to be performed quickly and effectively; for example, a search for 30 to 40 terms within a 15 million document database in CloudNine usually takes a matter of seconds to retrieve the results.  I know, because I recently performed several of those searches for a client on their 15 million document database.

The advantage of excluding these words is smaller indexes and improved indexing, and searching, time.  If every “the”, “do”, “can” and “up” was indexed, searching eDiscovery databases would be way slower – painfully slow, in fact.

However, there can be drawbacks to not indexing these noise words.  One disadvantage is that if your searches are typically for common phrases, you may not be able to search with precision and you may either get additional non-responsive results or (even worse) miss some responsive results.

Years ago, I attended a presentation by Craig Ball, where he identified the perfect phrase that illustrates the problems with noise words:

“To Be or Not to Be”

This famous phrase in Shakespeare’s Hamlet would typically not be indexed at all in most search engines – every word in the phrase is a typical noise word.

If a quoted phrase in a search query includes a noise word, the search results may contain results with any word in place of the noise word. For example, a search query for “deed of trust”, might contain documents with the phrases “deed and trust” or “deed under trust” in the search results.

Most search tools can provide a list of the noise words used, so that you can adjust accordingly when constructing your searches.  So, when preparing a list of search terms, it’s important to remember that noise words exist and they could affect your search results.  If you have to search for phrases that contain noise words, you may retrieve some non-responsive hits in those results, so you want to be prepared to review to determine how effective the search was able to retrieve the desired results.  Don’t let noise words drown out your ability to effectively search your collection!

So, what do you think?  Have you encountered issues with noise words in your searches?  How have you addressed those issues?  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.