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Electronic Discovery

Florida Becomes First State to Require Technology CLE: eDiscovery Trends

OK, I may have taken a couple of shots at Florida last Thursday over their ballot issues in elections over the years.  However, Florida deserves credit in being the first state to require technology CLE for lawyers.

The rule change, among others proposed by the Florida Bar and ordered by the Supreme Court of Florida on Thursday states:

“We amend subdivision (b) (Minimum Hourly Continuing Legal Education Requirements) to change the required number of continuing legal education credit hours over a three-year period from 30 to 33, with three hours in an approved technology program.”

In that same order, Florida also became the 25th state to order adoption of the duty of tech competence for that state, stating:

“The comment to rule 4-1.1 (Competence) is amended to add language providing that competent representation may involve a lawyer’s association with, or retention of, a non-lawyer advisor with established technological competence in the relevant field. Competent representation may also entail safeguarding confidential information related to the representation, including electronic transmission and communications. Additionally, we add language to the comment providing that, in order to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including an understanding of the risks and benefits associated with the use of technology.”

The changes become effective on January 1, 2017.

As reported Monday on his Law Sites blog (Florida Becomes First State To Mandate Tech CLE), Bob Ambrogi notes that the mandate was first recommended by the Technology Subgroup of the Florida Bar’s Vision 2016 commission, which was chaired by Vero Beach lawyer John M. Stewart.

“If you are going to be competent in the practice of law, you have to understand technology related to your practice area,” Stewart told The Florida Bar News in 2015. “How do you do that? Through association — you hire an expert to associate with — or through study.”

The change was a surprisingly easy sell, Stewart told Victor Li at the ABA Journal. “I think everyone recognized that lawyers could benefit from more education, both when it comes to technology and in general.”

So, what do you think?  Will other states follow suit and require technology CLE as well?  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 Denies Defendant’s Motion for Production of Documents for In Camera Review: eDiscovery Case Law

In Portland Pipe Line Corp. et. al. v. City of South Portland et. al., No. 15-00054 (D. Maine, Sept. 8, 2016), Maine Magistrate Judge John H. Rich, III denied the defendants’ motion to compel the production of documents withheld or redacted on claims of attorney-client privilege by the plaintiff, finding that the plaintiffs “undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor” and then undertaking a “painstaking manual review to verify the privileged status of every ESI document marked as privileged”.

Case Background

In this case where the plaintiff sued the defendant seeking declaratory and injunctive relief regarding an ordinance prohibiting the loading of crude oil, the defendant brought instant disputes to the court’s attention regarding perceived inadequacy with the plaintiff’s privilege log.  The defendants indicated that they diligently attempted to resolve the instant disputes, emailing letters to the plaintiffs on August 10 and 22, 2016, to which the plaintiffs, in letters emailed on August 15 and 24, 2016, “offered no meaningful response”, forcing them to take the issue to the court.  On August 10, the defendants also advised that, absent further detail, they suspected that the privilege was improperly claimed as to four categories of documents and eventually demanded that the plaintiffs produce all documents withheld on the first three categories within the remaining three categories for the court’s in camera review in determining whether to order that additional detail be provided in the ESI log or documents be produced.

The plaintiffs countered that the defendants pursued a “dilatory and burdensome approach” and raised no concern about the adequacy of a similar hard-copy document privilege log that the plaintiffs had produced on July 14, and that they also failed to define the scope and nature of their complaints about the ESI privilege log sufficiently to enable a particularized response, asserting that the defendants, as the parties pressing discovery disputes, bore the burden of defining the scope of those disputes in such a manner as to permit the plaintiffs an adequate opportunity to respond and the court to rule.  They also flatly declined to undertake a wholesale review of their privilege log, decrying the undue burden of the request in light of the costly and time consuming efforts already taken to create the log and standing by both its adequacy and the viability of their claims of privilege.

Judge’s Ruling

With regard to the argument over the production of the privilege log and noting that the defendants waited until August 30 to seek the court’s aid, Judge Rich stated that “The plaintiffs have the better argument.”  In denying the defendant’s motion, he stated:

“I appreciate that the defendants cannot be certain, in the absence of the requested in camera review, whether documents have or have not been properly withheld. However, I take into consideration the plaintiffs’ counsel’s representation, as officers of the court, that the plaintiffs undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor and then, following the production of more than 100,000 pages of ESI to the defendants on July 29, immediately undertaking a painstaking manual review to verify the privileged status of every ESI document marked as privileged and draft appropriate descriptions for the ESI log. The plaintiffs’ counsel further represent that the plaintiffs executed targeted searches of documents as to which privilege had been claimed to identify those less likely to have been privileged. As a result of those efforts, when the plaintiffs produced their ESI log on August 2, they not only made new claims of privilege as to previously produced documents but also withdrew claims of privilege as to a number of other documents.”

So, what do you think?  Should the in camera review have been allowed?  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.

“Master” Your Knowledge of eDiscovery One More Time – In Our Nation’s Capital!: eDiscovery Trends

Back in May, I was excited and honored to moderate an enjoyable panel session in Chicago at The Masters Conference event there.  Then, we did it again in July in New York City.  Now, we’re doing it again later this month, this time in our nation’s capital, Washington DC!

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 will be a two-day event, held on Tuesday, October 18 and Wednesday, October 19 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.

Click here to register for the conference.  The cost is only $165 for two full days of sessions – if you register by Tuesday, October 11; 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 on October 18 and 19?  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.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Appeals Court Upholds Default Judgment for Discovery Violations, Including Wiping Files from Laptop: eDiscovery Case Law

In Trude et. al. v. Glenwood State Bank, et. al., Nos. A15-0378, A15-1863, A15-1864 (Minn. App., Aug. 15, 2016), a Minnesota Appeals Court affirmed the trial court’s entry of default judgment for repeated discovery violations, including using data wiping software to permanently delete more than 20,000 files from a laptop just hours before it was turned over for forensic examination.

Case Background

This case originally began when the bank tried to repossess earthmoving equipment and other property in 2011 from one of the parties, which resulted in a lawsuit against the bank by two other parties (Trude and his company JBI, claiming that they owned the property).  A series of counterclaims and third party complaints continued over years of litigation.  The defendant had a contentious discovery history with plaintiffs JBI and Trude, with those plaintiffs not answering the defendant’s interrogatories or document requests for two months after an extended deadline, so the defendant moved to compel discovery and sought sanctions.  JBI and Trude responded to the interrogatories immediately before the hearing on the defendant’s motion, but the court found their response untimely without excuse and sanctioned Trude individually to pay the defendant’s costs in bringing the motion.

The defendant’s discovery conflicts with JBI and Trude continued, and the defendant again sought the court’s involvement. In August 2014, the district court ordered Trude to allow the defendant to take JBI’s business laptop offsite to forensically analyze it. JBI turned the computer over, but the defendant’s forensic analyst determined that, just hours before the laptop was picked up, someone had used data-wiping software to permanently delete more than 20,000 files from the computer.

In November 2014, the court found that Trude intentionally destroyed evidence to keep it out of the defendant’s hands and both JBI and Trude were held in contempt for destruction of evidence and their claims were dismissed. The court also ordered JBI and Trude to show cause for their continued failure to disclose projects the earthmoving equipment was used on and warned them that their Answer could be dismissed if they failed to comply. When they did not, the court ordered their Answer stricken and entered a default judgment against them, noting JBI and Trude’s continued failure to provide timely discovery responses, their intentional attempt to prevent the defendant from knowing the earthmoving equipment’s location, Trude’s repeatedly making contradictory statements and engaging in perjury, Trude’s bad-faith failure to comply with orders, and the destruction of data on the laptop. JBI and Trude appealed.

Appellate Court Ruling

The appellate court stated that “Simply put, Trude’s discovery violations were not isolated and clearly reflect a pattern to obstruct litigation tactically and to avoid disclosure”, noting that the “district court consistently found no justification for Trude’s violations.”  Going further, the court noted in its ruling:

“When the district court first sanctioned Trude on December 20, 2013, it found his failure ‘inexcusable’ and intentional. When it held Trude in contempt, the district court found that he acted in bad faith and flagrant disregard for the court’s order. And when it struck JBI and Trude’s answer, it found that Trude failed to justify the nondisclosure, had acted in bad faith, provided misleading or untrue information, and testified falsely. All of the district court’s findings on Trude’s misconduct, willfulness, and unpersuasive justifications are abundantly supported by the record. For one example, the record informs us that the computer-wiping program had been installed and run at 2:39 a.m. on the morning that Trude turned the laptop over to Glenwood, and the wiping program itself had then been deleted without any disclosure to Glenwood, let alone any justification.”

As a result, the court affirmed the district court ruling.

So, what do you think?  Should the wiping of the laptop alone be enough for a default judgment?  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.

In This Election Season, Contested Elections May Require eDiscovery to Sort Out the Results: eDiscovery Trends

Remember the 2000 Presidential election and all of the issues and headaches that resulted from punch card “butterfly” ballots and “hanging chads” down in Florida?  These days, electronic ballots are more popular.  However, using those electronic ballots doesn’t solve all problems and, if there are disputes, there may be a need for eDiscovery professionals to sort out the results.

This article on Legaltech News (For 2016 Election, Electronic Voting and Discovery May Collide on Complex Terrain, written by Ricci Dipshan) discusses the issues and concerns over this year’s elections and the possibility that eDiscovery may be necessary to evaluate the process.  Certainly, we’ve already seen concerns about the fairness of the process already.  “Both sides of the aisle during the primary were certainly talking about rigged elections, and that talk does continue,” notes Mary Mack, executive director for the Association of Certified E-Discovery Specialists (ACEDS).

These days, Florida uses a mix of paper ballots and touch-screen direct recording electronic (DRE) voting systems, but the DRE voting machines aren’t perfect.  According to data from Verified Voting Foundation, Florida is one of 15 states where some or all of the DRE machines used in elections do not have a voter-verifiable paper audit trail (VVPAT), a printed paper record of a vote that the voter immediately reviews and keeps with election officials.

The accuracy of the DRE voting machines was at issue in a 2006 Florida congressional seat race (why do these always seem to happen in Florida?) where the losing candidate filed a complaint with Florida’s 2nd Judicial Circuit court, alleging that DRE voting machine malfunctions contributed to an undervote of 18,000 ballots and therefore swung the election.  She requested expedited discovery access to the hardware, software and source code of the county’s DRE machines, but the defendants which included state and county officials, refused, evoking ES&S’s trade-secret privilege under Florida’s evidence law.  The judge upheld the privilege and denied the motion for discovery.

“I certainly understand the need to protect trade secrets, but there are methods that we use in litigation to protect trade secrets,” Mack said. “There’s actually a discipline called software forensics, where somebody who is trained can go in and explain what the code is doing. Software forensics is mostly used in patent cases and intellectual property cases, but it could certainly also be used here.”

DRE machines also keep event logs that track activity for each DRE voting machine and could help identify machine malfunctions.  And, as you probably know if you’ve ever voted in any election for government officials, protocols and procedures play an important part too.

In an effort to support these protocols, ACEDS has sent a formal letter to the National Association of Secretaries of States, offering help in the form of “witnesses, collection people, and experts,” Mack said, adding that as the effort is not centralized, “members will be calling into their local county organizations, so I expect that in certain places we will be engaged.”  ACEDS is also currently researching whether it can offer technology, including traditional eDiscovery software and hashing tools to help election workers as well.

While no secretary of state has taken ACEDS up on its offer yet, there is still time.  “For me, [it would be] a wonderful thing if we prepared to do this and then don’t need to”, said Mack.

So, what do you think?  Will we need eDiscovery to sort out election result disputes this November?  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

If Plaintiff Wants Discovery on Defendant’s Backup Tapes, Court Rules He Must Pay for Them: eDiscovery Case Law

In Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB (W.D. Wash. July 29, 2016), Washington District Judge Robert J. Bryan, finding that the defendant had met its burden to show that retrieving electronically stored information on backup tapes “would result in an undue burden and cost to Defendant”, that the plaintiff “has not met his burden to show good cause” to overcome the defendant’s undue burden and cost argument, and that “the archived emails are ‘discoverable’ under Fed. R. Civ. P. 26(b)(1)”, ordered the defendant to “facilitate access to the discovery”, but “only at Plaintiff’s expense, payable in advance”.

Case Background

In this case, the plaintiff sought production of all emails and text messages concerning the plaintiff between employees, agents or attorneys of the defendant as well as other emails related to Group Health, the National Practitioners Data Bank [NPDB] or any former employer of the plaintiff.

The defendant objected to the request on the grounds that it was overbroad and burdensome, indicating that it did not have an email archiving system, but instead archived emails on a monthly basis on physical backup tapes, as part of a disaster relief program. The defendant indicated that in order to retrieve all responsive discovery, it would need to retrieve, restore, and review each backup tape, which at 14 hours per tape would require 1,400 hours in labor and $157,500 in costs.  The defendant also indicated that it had already searched the live email accounts of several custodians, was producing non-privileged responsive documents that it had found in those searches and referred to the emails previously produced with the defendant’s initial disclosures.

In response, the plaintiff filed a Motion to Compel Discovery Responses, indicating in a declaration that, as soon as July 2013, the plaintiff notified the defendant’s attorney of his intent to file a lawsuit (the defendant’s attorney, in his own declaration, stated he had no recollection of those conversations).

Judge’s Ruling

While acknowledging that the emails sought by the plaintiff were discoverable, Judge Bryan stated that “Defendant has met its burden to show that retrieving the electronically stored information would result in an undue burden and cost to Defendant.”  Judge Bryan also found that the plaintiff “has not met his burden” to show good cause, stating: “Tellingly, Plaintiff does not name individuals that Plaintiff believes exchanged emails about Plaintiff, nor does Plaintiff describe suspected content of the emails. Plaintiff does not even represent with any surety that responsive emails exist. Because Plaintiff has not met his burden for good cause, compelling production of the discovery at expense to Defendant is not warranted.”

However, because the archived emails were “discoverable” under Fed. R. Civ. P. 26(b)(1), Judge Bryan ruled that “upon a request by Plaintiff, Defendant should facilitate access to the discovery, but should do so only at Plaintiff’s expense, payable in advance. Plaintiff should be responsible for all costs, such as retrieving and restoring the backup tapes to an accessible format, except for costs relating to Defendant’s review of the information for privileged material (which is like any other discovery request, e.g., the live emails)…Defendant should not otherwise be compelled to produce the archived emails, and to that extent Plaintiff’s motion should be denied.”

So, what do you think?  Should the defendant have been required to bear the cost of restoring the backup tapes for discovery?  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.

Janice Jaco and Brandye Fenn of LTC4: 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 leaders are Janice Jaco and Brandye Fenn of the Legal Technology Core Competencies Certification Coalition (LTC4).  ACEDS’ 2015 eDiscovery Person of the Year, Janice, is the senior eDiscovery Project Manager for boutique litigation powerhouse Keesal, Young & Logan (KYL).  Janice’s professional volunteer work includes extensive involvement in authoring LTC4’s eDiscovery Core Competency, participation in ACEDS’ CEDS Exam Standard Setting Exercise, and updating ACEDS’ University online content.  Janice also plays an important role in shaping the “KYL Keeps You Learning” Framework, which has produced two ILTA Distinguished Peer Award winners and has led to KYL being the first firm in the world to pass the Procertas’ Legal Technology Assessment in 2015 as well as the first-ever recipient of ACEDS Law Firm e-Discovery Department of the Year award in 2016.

Brandye is the Litigation Support Manager at Ford Harrison LLP. With more than 28 years’ of law firm experience as a litigation paralegal, Brandye is responsible for managing eDiscovery projects for the firm’s 20+ offices, nationally. In 2011, she founded the FordHarrison Litigation Support Department and, through her extensive knowledge of eDiscovery best practices and industry standards, established and implemented new review and processing workflows and procedures. She is responsible for the oversight and management of the firm’s litigation technology and provides technical guidance to attorneys and clients on all phases of the EDRM and leads the firm’s e-discovery budgeting, forecasting, and technology initiatives. In 2015, she provided a cost benefit analysis in support of implementing an innovative cost-recovery model for recouping the firm’s litigation support services which gave clients better control over their eDiscovery project costs while allowing the firm to remain competitive with the latest technology.

Both Janice and Brandye were members of a team of litigation support professionals charged with developing the eDiscovery Core Competency (ECC) Learning Plan of LTC4. Over a 21-month period, the team collaborated and created scenario-based training modules to define the core competency standards for attorneys and legal professionals required to measure e-discovery competency.

For those readers who haven’t heard of it, what can you tell us about LTC4?

Janice: In 2010, a group of like-minded industry people got together and realized that they were creating content and training materials and learning guidelines independently.  They thought that it would be great if they pooled resources together to respond to client demand for proof of efficiency and competency and did that by pooling resources across the industry to create industry standard competencies that could be the basis for that proof, which would be the certification.  From that genesis, LTC4 was born.  Today, there are now ten learning plans, including the new Electronic Discovery Core Competency learning plan that has just been peer reviewed and released.

Firms are free to develop their own training programs around those learning plans.  Then, a trainer at a firm could submit documentation demonstrating that a certain user in the firm has completed the training program associated with a particular learning plan and receive a certification.

There are vendors who train to the program and provide the LTC4 certification.  I can tell you that we have been utilizing our certifications in responses to requests for proposal from clients and potential clients.  We feel that this “proof learning” is a great way to attract and retain clients, so, from a business perspective, we feel that the ROI is there.

Brandye: I think clients are also adopting it.  They are going to their outside counsel and saying if we’re doing this, we want you to show us that you can do this as well, and that you have a base level of knowledge.  Whether the law firms were required to do this by their clients or whether they felt like they needed to do this just on their own, either way it’s become a great marriage.

Janice: I think the law firm that’s proactive and can be on (if not the “bleeding edge”) the leading edge of these changes will be in the best position for continuing to thrive and maintaining its market position.  You don’t want to be that firm waiting for the client to tell you that you need to do it.

Brandye: Or be asked for it in an RFP where you have to say, “Well, that’s part of our plan for next year.”

You have mentioned the eDiscovery learning plan, what are the others?

Janice: They are: Legal Documents, Managing Documents and E-mails, Collaborating with Others: E-Mailing and Sharing Documents, Time and Billing, Road Warriors, Data, Reports and Exhibits, Security, Working with Clients (CRM), Presentations and eDiscovery/eDisclosure.  You can find out more about the learning plans at http://www.ltc4.org/learning-plans/.

Since we’re an eDiscovery blog, our readers would be specifically interested in the eDiscovery plan.  What can you tell me about that plan that was just released?

Brandye: I was part of the group that developed the plan and it took us 21 months.  It was such a blur of fun and camaraderie (laughs) and multiple phone calls and Google docs.  What we did was try to approach it from a standpoint of things you need to know, things you should know and things you must know.  Then we flipped it and determined, for each of those things, who needs to know it and why.

When I started this process, I did not know anything about LTC4.  Bonnie Beuth (Chair of LTC4) called, explained what the project was about and asked if I’d like to help.  I agreed to help and talk to others about it and, the next thing you know, I was locked in and responsible for deliverables.  The process was so collegial, with everybody addressing the problems from a unique standpoint.  We even had someone from the UK, Andrew Haslam, to provide an international perspective.  And, it was one of the most enlightening experiences.

Janice: It was for me too.

Brandye: I learned so much.  You’re “stuck in a bubble” in your own world of your processes, your workflow, your people and what they know and don’t know.  Working with people in the group you get a lot of different perspectives on how they do things, which can be quite a bit different from how you do them.  It’s really fantastic to get those different perspectives and it really made a true believer out of me.

We took it in steps, eDiscovery steps, and tried to keep it grouped to the EDRM workflow – loosely – and also real-world scenarios.  Such as, what happens when you receive data and what happens when you need to produce a group of documents?  So, we took real world problems and worked to identify solutions to those problems.  We worked to identify what an attorney should do, what a paralegal should do, what a lit support person should do – and took it to its natural conclusion in each of those sections.

Janice: In my experience, there is sometimes a disconnect between what attorneys think they need to know to be competent and what lit support managers like Brandye and I think they need to know to be competent.

Brandye: Or even what the courts think they need to know to be competent.  I’ve heard Judge Peck say dozens of times to attorneys this is what you need to know and they sometimes still don’t recognize it.

Janice: For example, they sometimes need reminders to pursue FRCP Rule 502(d) orders in federal court cases where significant email volumes are expected to be produced.  The task is not necessarily one that presents as part of the standard litigation workflow.

Brandye: Or they’re still doing “drive by” meet and confers.

Janice: So, I googled to try to find something similar and the only thing that I found that was remotely close to the ECC Learning Plan was the EDRM Talent Matrix, which talks about tasks in eDiscovery and the different talent typically best suited to performing these tasks.  For example, the lawyer isn’t usually the person pushing the buttons to get a production out.  In the course of working with lawyers and our clients), I try to explain why I think an approach, tool or process is the best fit for the current case or scenario.  Over the years I have had team members question why I think my recommendation is the best one and even whether they need to know that.  A learning plan like this one is a way to validate your recommended people, process and technology so lawyers can competently supervise my work and even clients could validate the workflow and recommendations.  Governing bodies like the American Bar Association or the California State Bar are being clear that you don’t have to be able to do all ediscovery tasks yourself, but you’re going to have to be able to effectively supervise someone like me to ensure that I’m doing the right thing for the clients in the most efficient, just and speedy way.

So, for the first time ever, we had a group of like-minded thought leaders collectively building something that we all could agree at the end was a collection of basic skills needed to execute these ediscovery scenarios.  There’s nothing like that in the industry.

Brandye: You can talk about rules and work processes, but putting them in context of scenarios and what to do in those scenarios is key.  It helps people match their situation to what they’re supposed to do, so they can say “I’ve been in this situation before and I know exactly what they’re talking about and I know exactly what to do.”

Janice: It enables people to say “I’ve had this scenario before, but I’ve never had these nine steps to address it in this way before like I do now.”  I think trainers everywhere are going to be so relieved to see something that backs up what they’ve been saying to lawyers for years.  Sometimes, like it is with kids when they listen to a teacher in school after they’ve been told the same thing over and over again by their parents–you don’t necessarily listen to the ones closest to you.  You need a credible outside source to reinforce what internal people have been saying.  Attorneys sometimes just need to hear it from someone else before they believe it.  And, that’s what the lesson plans provide.

How does one become a member of LTC4?

Janice: You can go to the LTC4 site here for more information on how to join and access the online application.  It’s easy for any law firm to join.  There is a membership fee which is based on size of firm.  There are also rates and plans for law schools, non-profit organizations and vendors.  And, you get access to all of the learning plans when you join.

Brandye: And, it’s not just about the learning plans, it’s a truly collaborative organization.  You also get support from LTC4 and from the members within the organization.  If you’re working in an area, for example, labor employment law, you can reach out to that community for assistance.

Janice: For example, security is one of the learning plans and mobile security is an important topic.  There are members who have that expertise who support you and help you create documentation through the certification, which you can then use to market yourself to clients and the prove you have the skills in cybersecurity.

Thanks, Janice and Brandye, 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.

The Readers Have Spoken, in New York: eDiscovery Trends

Last week, the New York Law Journal (NYLJ) published its seventh annual Reader Rankings, where the New York legal community cast their votes for your favorite vendors.  Over 8,000 people cast votes for their favorite vendors in 100+ categories!  That’s a lot of people and a lot of categories.

In their article publishing the results, NYLJ stated that “we only allowed legitimate end users (attorneys, paralegals, legal assistants etc.) to vote. We took great pains to ensure the voting was fair and that no vendors were ‘stuffing the ballot box.’ Any votes cast by non-legal professionals (or anyone who we could not validate was a legitimate end user) were disqualified.”

The 76(!) page Reader Rankings document is available here.  As you can imagine, with 100+ categories, they cover vendors for all types of legal needs.  As we’re an eDiscovery blog, it makes sense to be a bit more focused, so the categories that relate to electronic discovery and information governance start on page 44.  Here are the reader rankings for those categories:

Best End to End eDiscovery Solution Provider

  1. DTI
  2. Huron Legal
  3. RVM

Best eDiscovery Processing

  1. DTI
  2. CloudNine
  3. Complete Discovery Source (CDS)

Best eDiscovery Managed Service Provider

  1. DTI
  2. Thomson Reuters eDiscovery Point
  3. CloudNine

Best Predictive Coding Solution

  1. DTI
  2. CloudNine
  3. Relativity Assisted Review

Best eDiscovery Mobile App

  1. Relativity Binders
  2. FTI Technology
  3. KPMG LLP

Best Legal Hold Solution

  1. DTI
  2. Recommind
  3. Relativity Legal Hold

Best Managed Document Review Services

  1. Pangea3 (Thomson Reuters Legal Managed Services)
  2. KPMG (tie)
  3. QuisLex (tie)
  4. Inspired Review

Best Online Review Platform

  1. Relativity
  2. DTI
  3. Thomson Reuters eDiscovery Point

Best Information Governance Solution

  1. RVM
  2. DTI
  3. RSD

There, we just saved you having to look through 76 pages to find the eDiscovery and information governance results.  You’re welcome… :o)

CloudNine thanks the readers of the New York Law Journal for recognizing us as a Top eDiscovery Processing Provider, a Top eDiscovery Managed Service Provider and a Top Predictive Coding Solution!

Thanks to everybody who braved the pouring rain and stopped by for “Drinks with Doug” in San Antonio at ARMA yesterday!  A great time certainly appeared to be had by all, despite the fact that a few were soaked from the rain.  Great food and drinks and even better conversation!

So, what do you think?  Do you have a preferred provider in any of these categories?  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.

Drinks with Me, On Me!: eDiscovery Trends

The ARMA Live! Conference & Expo for Records Management and Information Governance professionals is coming to San Antonio this Sunday for three days and CloudNine will be there.  If you plan to attend the show or are in the San Antonio area, come have drinks with me on Sunday – I’m buying!*

*Well, technically, my boss is buying, but we won’t quibble…

We’re having a “Drinks with Doug” outing on Sunday, September 25 from 4:30pm to 6:30pm at Guadalajara Grill, 301 South Alamo, San Antonio, TX 78205.  The address is easy to remember because we all remember the Alamo, right?  :o)

Anyway, it’s across the River Walk, just a short distance away from the conference in the Henry B. Gonzalez Convention Center.  Just ask for the “Drinks with Doug” gathering when you get there.

“Drinks with Doug” is a sporadic gathering of information technology, business, and eDiscovery professionals in various cities who casually meet and discuss all things information and technology over a few drinks with me.

If you’re attending ARMA and have an ARMA badge, that’s all you need!  Stop by and have a drink with us!

If you’re not attending ARMA, but will be in the San Antonio area on Sunday, you’re also welcome to attend.  However, you’ll need to email me at daustin@cloudnine.com and you will need to receive a confirmation response from me to be added “to the list”.  To improve your chances, please send the email from your work email address, not from a “gmail” or other personal account.

Hope to see you there!

So, what do you think?  Are you attending ARMA 2016?  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.

Hashing Out the Idea of a Standard Hash Algorithm for Vendors: eDiscovery Best Practices

In a blog post earlier this month, Craig Ball discussed the question (which was posed at the recent ILTACON conference by Beth Patterson, Chief Legal & Technology Services Officer for Allens) of why eDiscovery service providers can’t (or don’t) standardize hash values so as to support identification and deduplication across products and collections.  Good question.  Let’s take a look.

In his post from his excellent Ball in Your Court blog (Cross-Matter & -Vendor Message ID), Craig noted that standardization would enable you to use work from one matter in another and flag emails already identified as privileged in one case so that they don’t slip through.  Wouldn’t that be great?

According to Craig, unfortunately, the panelists’ response to the question appeared to be to characterize it as “a big technical challenge.”

Craig then took a look at the issue, beginning by recapping some “hash facts” to establish a baseline for understanding considerations for computing hash values.  He then differentiated loose documents (easy, because as long as they are properly preserved, they should generate the same hash value consistently) from emails.  Emails are more difficult to construct consistent hash values for because the hash value of an email depends on when it is exported as well as other factors.  So, the same email exported at different times or from different email clients will have a different hash value – even though we see them as the same, the computer doesn’t.  Make sense?

Craig also took a look at some approaches for generating standardized hash values for emails and also took a look at MD5 vs. SHA-1 methods of hashing and debunked the idea that MD5 hash values aren’t unique enough to be “defensible”.  There are 340,282,366,920,938,463,463,374,607,431,768,211,000 unique MD5 hash values.  Unique enough for you?

I asked Bill David, Chief Technical Officer at CloudNine and architect of the platform, about the use of MD5 for generating hash values.

“Of these (and other) HASH routines, we ultimately chose MD5 for a couple of reasons”, Bill said. “First, for all practical purposes, MD5 Hash is sufficient for identifying duplicate files in a given population. Second, it’s faster than the alternatives. And third, it is widely available. You can find the MD5 Hash routine in all major computer languages as well as in most relational database. This allows us to utilize and generate HASH values from a client’s browser all the way down the line to the rational databases used in a review platform.”

As for the idea of eDiscovery vendors agreeing to use the same routine to generate the same hash value, Bill seemed to think it was very doable and advocated a concatenation approach:

“As is commonly known, emails throw us a monkey wrench. Every email has some hidden data that is unique to that file. And as a result, we have to pick certain sections of a given email to construct a “string” of data, which we can then “HASH” to generate a unique value. But the slightest change in the format of the data affects the resulting unique hash. Something as simple as a single extra space will result in a completely different hash value.”

“What we have to do is to take the different parts of an email, combine them altogether and hash the result. At CloudNine, we pull these parts of an email and separate them with a single space.

  • SentDate (in the ISO format)
  • From
  • To
  • CC
  • BCC
  • Subject
  • Attachments (file names separated by semi-colons)
  • MsgText (text version)”

Bill, while noting that these are his initial thoughts after reading Craig’s article and might be subject to some revision, suggested a way to “code” it, in this case using C# (C Sharp) programming language:

“The combination of these fields give us a unique finger print of an email. As an extra step in trying to normalize data it’s wise to ‘trim’ up these fields (remove any leading or trailing spaces). So in code it would look like this:”

hashString = String.Format(“{0} {1} {2} {3} {4} {5} {6} {7}”,

     args.file.SentDate.ToString(“yyyy’-‘MM’-‘dd’T’HH’:’mm’:’ss”),   //ISO Format example 2009-06-15T13:45:30

     args.file.From.Trim(),

     args.file.To.Trim(),

     args.file.CC.Trim(),

     args.file.BCC.Trim(),

     args.file.Subject.Trim(),

     args.file.Attachments.Trim(),

     args.file.MsgText.Trim());

“We now have a string to hash. The last step is to hash the string. Many MD5 hash routines will contain ‘dashes’. In one more step to normalize the results let’s remove those dashes and force all of the characters to lower case.”

hash = clsHash.GetHash(hashString, clsHash.HashType.MD5).Replace(“-“, “”).ToLower();

“Based on my initial thoughts, that’s how you could standardize a hash value to use for deduping.”

Sounds like standardization on a method for generating hash values could be relatively straightforward – if you can get all the vendors to agree.

So, what do you think?  Would you benefit from a standardized method for computing hash values across all eDiscovery platforms?  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.