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Electronic Discovery

Norton Rose Fulbright’s New Annual Survey Shows More Cross-Border Discovery & Alternative Fee Arrangements: eDiscovery Trends

According to Norton Rose Fulbright’s Litigation Trends Annual Survey for 2016 released last week, eDiscovery is “increasingly painful and costly to manage, particularly considering the growth of cross-border discovery”.  Interestingly, however, more respondents are now using alternative fee arrangements (AFAs) and in a higher proportion of the litigation work they carry out, with a whopping 97% satisfied with the work conducted under an AFA.

Here are some other interesting statistics from the report:

RESPONDENT PROFILE

Here is a profile of the respondents in the survey.

  • There were 606 total corporate counsel participants (way down from 803 a year ago), 79% of which were either General Counsel (47%), Deputy GC (21%) or Head of Litigation (11%).  44% of respondents were from the US, down from 52% a year ago.
  • Over half (57%) of the companies surveyed, were billion dollar companies with $1 billion or more in gross revenue, with all but 11% having revenues of at least $100 million.
  • The respondents were quite evenly distributed among industries, with Financial Institutions (24%), Technology and Innovation (22%) and Energy (17%) the top three industries participating.

LITIGATION TRENDS

The report provided some interesting findings with regard to the number and distribution of cases as well as corporate litigation budgets.

Litigation Case Counts and Distribution

  • 47% of all respondents indicated that more than 5 lawsuits/proceedings were commenced against them last year, up from 42% last year.  As was the case in 2015, 13% of all respondents indicated that more than 50 lawsuits/proceedings were commenced against them last year.  Only 19% of respondents indicated that they had no disputes, down from 25% a year ago.
  • Respondents were given a list of categories of pending litigation their companies faced over the past 12 months, and asked to select the top three. Contracts (40%) and Labor/Employment (39%) matters once again received the most selections from respondents, with Regulatory/Investigations a distant third at 19%.  Contracts (42%), Labor/Employment (35%) and Regulatory/Investigations (35%) were also the types of legal disputes that most concerned companies.
  • 24% of all respondents expected the number of legal disputes for their company to increase over the next 12 months, down 1% from a year ago.

EDISCOVERY TRENDS

The report showed rises in respondents using technology assisted review and also in respondents conducting cross-border discovery.  Also a clear majority of respondents still rely on self-preservation to fulfill preservation obligations for at least some cases.

Cross-Border Discovery

  • 41% of respondents have conducted cross-border discovery within the last 12 months, a jump of six percent over last year.  The number of respondents that conduct cross-border discovery in at least half of their cases doubled to 14%.

Technology Assisted Review

  • 60% of all respondents are using technology assisted review for at least some of their matters, up 3% from a year ago.  66% of respondents use it in the US, as opposed to only 46% in the UK (despite the first cases approving predictive coding in England).
  • 79% of larger companies surveyed use technology assisted review, up from 43% two years ago.
  • Of those companies utilizing technology assisted review, 29% use it in half or more of their matters.

Mobile Device Preservation and Collection

  • 49% of overall respondents had to preserve and/or collect data from a mobile device, a drop of 4% from last year.  19% of all respondents reported having to preserve and/or collect data from a mobile device in at least half of their matters.

Self-Preservation

  • Overall, 73% of respondents rely on individuals preserving their own data (i.e., self-preservation) in at least some of their cases, with 59% relying on self-preservation in at least half of their cases (both numbers down only 1% from a year ago).

There are plenty more interesting stats and trends in the report, which is free(!) once again.  To access this year’s report, click here.

So, what do you think?  Do any of those trends surprise you?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Pick Six! eDiscovery Daily is Six Years Old!

Believe it or not, it has been six years ago today since we launched the eDiscovery Daily blog!

When we launched five years ago on September 20, 2010, we told you to not get “wild” with wildcards (and did it again last week) and we published our first case law post about a case where the spoliator of data was actually threatened with jail time.  We’ve now actually published exactly 500 posts about case law, involving more than 330 distinct cases!

Not only that, today is another milestone – we have now published 1,500 lifetime posts!  And, every post is still available on the site for your reference, which has made eDiscovery Daily into quite a knowledgebase!  We’re quite proud of that.

Back in 2010, our goal was to be a daily resource for eDiscovery news and analysis and we’ve continued to do so for six years now.

As always, we have you to thank for all of that success!  Thanks for making the eDiscovery Daily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

As many of you know by now, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

You would be amazed what happens on the Internet every minute of every day.

Can you steal 11.5 million electronic documents from a law firm without being detected?  Apparently, you can.

Nearly two-thirds of all data breaches were due to password issues.

BakerHostetler recently “hired” a new “attorney”, but that “attorney” doesn’t carry a briefcase.

If you have a rush eDiscovery project to get done, where do you turn for help?  The cloud, of course.

This seems obvious, but, if you’re running for office, don’t forget to close your porn tabs before taking a screenshot and posting it to your social media account.

If you’re a former IT administrator at a company and you deleted files before you left, you could go to jail.

The EU-US Privacy Shield was formally adopted.  Will it hold up better than the old “Safe Harbor”?  We’ll see.

The Wisconsin Supreme Court ruled that sentencing judges may (with some restrictions) take into account algorithms that score offenders based on their risk of committing future crimes.

Parties can cooperate in a predictive coding process, yet still disagree on the outcome of what’s produced.  Here’s proof.

Bad faith deletion of emails can cost you $3 million.

Believe it or not, Judge Peck refused to order a defendant to use Technology Assisted Review in this case.

Speaking of TAR, here’s another case in England which approved it, despite objections from the receiving party.  And, there is a bit of debate among TAR experts.

Have you ever seen an interview conducted online over a couple of days?  Here’s one that was.

Did you know that EDRM has a new owner?

Here’s the latest information on eDiscovery Business Confidence within the industry.  And, here’s a link to the webinar where we discussed it.

According to Gartner, Machine Learning is at the Peak of Inflated Expectations.  Their words, not mine.  Also according to Gartner, cloud eDiscovery solutions are gaining momentum in the marketplace.

I thought my example of 269 unique words that can be retrieved with a wildcard of min* to search for mining-related terms was a lot.  This example from a case we covered last week for a search for “apps” related terms has even more!

This is just a sampling of topics that we’ve covered.  Hope you enjoyed them!

Thanks for the interest you’ve shown in the topics!  We will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!  We’re already at 1,500!  Can we break Pete Rose’s record?  I’ll bet we can!  :o)

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.

If You Missed the eDiscovery Business Confidence Webinar, You Can Catch it Here: eDiscovery Trends

Last week, ACEDS hosted a webinar (sponsored by CloudNine) with expert commentary on the results of the Complex Discovery Summer 2016 eDiscovery Business Confidence Survey, which was conducted last month with the results published on Rob Robinson’s terrific Complex Discovery site.  If you missed the webinar, you can catch a video of it now.

This time, there were 168 total respondents to the survey, which is more than double the number of respondents as the Spring survey.  In fact, there twelve were more respondents than the first two surveys combined.  Obviously, sponsorship from ACEDS and promotion from EDRM, strong>LTPI, Masters Conference, and Women in eDiscovery helped increase the number of respondents dramatically.  The end result is perhaps the most meaningful eDiscovery Business Confidence Survey results yet.

The lively one hour presentation and discussion was led by ACEDS Executive Director Mary Mack, 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.  All of the panelists had interesting comments and observations and we also received several good questions and suggestions from the audience for future surveys.  In three months, we’ll do it again!

The webinar video is available via our new Online Stream page here.

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Defendant Not Required to Produce All Documents Responsive to Search Terms: eDiscovery Case Law

Remember earlier this week, when we once again discussed the perils of not checking your wildcard terms before agreeing to them?  This case law summary is a prime example of that.  Perhaps more narrowed search terms would have reduced the review required.  Frankly, I’m surprised more documents weren’t retrieved.

In Bancpass, Inc. v. Highway Toll Administration, LLC, No. A-14-CV-1062-SS (W.D. Tex. July 26, 2016), Texas Magistrate Judge Andrew W. Austin (no relation) denied the plaintiff’s Motion to Enforce Discovery Agreements with regard to the plaintiff’s request for the defendant to produce all non-privileged documents responsive to search terms agreed to over email.

Case Background

In this defamation case between two competing highway toll mechanism companies, the parties, negotiating over email, agreed to produce ESI responsive to the following search terms:

  • Smartphone /50 toll!
  • Smartphone /50 threat
  • Smartphone /10 app!
  • Phone! /10 app!
  • Double /10 bill
  • Geotoll

Slash followed by a number means within that number of words (e.g., /50 = within 50 words).  The ! after a term indicates a wildcard term.

*My own commentary: See terms 3 and 4 above?  They call for the phone related terms within 10 words of any word that begins with “app” (because they’re looking for phone applications or apps, got it?).  As you can see here, there are 306 words in the English language that begin with “app”.  Apparently, it appears that the parties (one of whom may someday be an appellant) appreciated the thought that appending a wildcard after “app” would be an appropriate application of the wildcard in that approach.  OK, a bit extreme, but you get the point – don’t get wild with wildcards!  A simple “(application! OR app OR apps)” would have saved a lot of false hits.

Anyway, the plaintiff stated that it believed the parties agreed that “all non-privileged documents responsive to the additional search terms will be produced,” which it understood to mean that every non-privileged document the search turned up would be produced, regardless of whether it had anything to do with the parties’ dispute and the plaintiff did so in its production.  Conversely, the defendant produced only those documents that it determined were relevant to the case and withheld the rest, which the plaintiff argued was a violation of the agreement.  In response, the defendant stated that it ran the searches as requested, but that the search terms turned up over 20,000 non-privileged but also non-responsive documents. After de-duplicating the search results against previous production and identifying clearly irrelevant documents, the defendant independently reviewed the remaining 3,489 documents for responsiveness and privilege, ultimately producing 34 documents captured by the agreed search terms that were both responsive to the plaintiff’s discovery requests and were non-privileged.

Judge’s Ruling

Ruling on this issue, Judge Austin stated:

“If the Court were to construe the parties’ email correspondence on this topic to constitute a contract, it is likely that HTA’s actions would amount to a breach. The Court’s reading of the e-mail chain is that the parties agreed to produce all of the results of the searches save privileged documents. But the parties’ e-mail exchange is not a contract. Rather, it was a means to simplify and limit the scope of production responsive to BancPass’s requests for production 6, 11, 29, 38, 39, and 45. Having reviewed the attached affidavits detailing HTA’s search and review process there is no reason to believe that HTA has withheld documents it was obligated to produce. Nor is it clear that additional searches with the identified search terms would produce more documents responsive to BancPass’s requests for production. Accordingly, as to the search terms, BancPass’s motion is denied.”

So, what do you think?  Should the defendant have been required to produce all of the responsive, non-privileged documents per the email discussion?  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.

Don’t Miss Today’s Webinar to Hear Expert’s Views on eDiscovery Business Confidence!: eDiscovery Trends

Last week, we covered results from the ACEDS and Complex Discovery Summer 2016 eDiscovery Business Confidence Survey, which was conducted last month with the results published on Rob Robinson’s terrific Complex Discovery site.  Today, you can attend a webinar to hear experts comment on the results of the survey and their thoughts about the state of eDiscovery business in general!

This time, there were 168 total respondents to the survey, which is more than double the number of respondents as the Spring survey.  In fact, there twelve were more respondents than the first two surveys combined.  Obviously, sponsorship from ACEDS and promotion from EDRM, strong>LTPI, Masters Conference, and Women in eDiscovery helped increase the number of respondents dramatically.  The end result is perhaps the most meaningful eDiscovery Business Confidence Survey results yet.

At 1:00 pm ET today (12:00 pm CT, 11:00 am MT, 10:00 am PT), ACEDS will be hosting the webinar (sponsored by CloudNine) regarding the survey.  During this one hour presentation and discussion led by ACEDS Executive Director Mary Mack, expert panelists will share and discuss the results of this quarterly survey. The discussion will feature eDiscovery leaders including:

  • 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, of course.  We will not only take a look at this survey in general, we will also break down the results within different response groups (e.g., providers, law firms, corporations, etc.) and compare the results of this survey to those of past surveys to discuss changes in trends.

Click on the link here to register for the webinar.  Hope to see you there!

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Defendant Receives Terminating Sanctions and More for “Persistent Contemptuous Behavior”: eDiscovery Case Law

In Teledyne Technologies Inc. v. Shekar, No. 15-1392 (N.D. Ill., Aug. 22, 2016), Illinois District Judge Ronald A. Guzmàn, finding that the defendant “has failed to purge himself of contempt for the repeated refusal to comply with this Court’s orders”, entered judgment against the defendant, dismissed his counterclaims, and directed him to pay the plaintiff’s reasonable attorney’s fees and costs incurred as a result of having to pursue relief for the defendant’s “persistent contemptuous behavior”.

Case Background

In this case against a former employee seeking injunctive relief relating to the return of the plaintiff’s property and confidential information following the defendant’s termination, the Court issued a temporary restraining order (“TRO”) in February 2015, finding that the plaintiff “established a substantial likelihood of success with respect to its claims that Shekar, without authorization and in violation of his contractual obligations, misappropriated confidential information and trade secrets from Teledyne; intentionally deleted Teledyne computer files; engaged in deceptive trade practices; interfered with its business relationships; and converted its property, all of which threatened to cause irreparable harm to Teledyne.”  The TRO was replaced with a preliminary injunction (“PI”) in March 2015; a week later, the plaintiff filed a Motion for Rule to Show Cause why the defendant should not be held in contempt for failing to comply with the TRO and PI, which was granted.

After an evidentiary hearing, the Court found the defendant in contempt, and ordered that he purge the contempt by:

  1. produce his home computer and any other devices or electronic storage media accessible to him;
  2. produce at a minimum the three external hard drives connected to the plaintiff-issued laptop on or after his termination date, and either produce or account for the whereabouts of the other eight hard drives or other devices which have connected to the laptop since July 13, 2013;
  3. truthfully and completely answer all interrogatories served upon him in this matter under oath;
  4. turn over, without keeping any copies, all plaintiff’s information including emails and the November 2014 backup files;
  5. explain the nature of the February 3, 2015 data transfer between the plaintiff’s servers and his work laptop, and turn over any such data still accessible to him; and
  6. truthfully divulge the passcode required to access the plaintiff-issued iPhone he previously produced.

The defendant then “engaged in a series of evasions and misrepresentations seeking to vacate or modify the order that he purge himself of contempt”, which included “offensive personal attacks” on the plaintiff’s counsel and even on his own attorneys. The Court eventually ordered the defendant to turn himself in to be detained and committed to the custody of the Bureau of Prisons, but was then contacted by multiple attorneys that the defendant attempted to engage, who notified the court that he had threatened suicide. Even after the court stayed the incarceration order, the defendant still failed to comply with the order to turn over his electronic devices and data, producing a laptop without its original hard drive, an iPhone with only four calls in the call log and a hard drive that had been wiped.

Judge’s Ruling

With the defendant’s history of “manipulations”, Judge Guzmàn stated and ruled, as follows:

“Shekar is clearly in willful contempt. He has been ordered time and again to comply with the Court’s orders and has never manifested the slightest intention to do so. Worse still, he has attempted to deceive the Court at every step of the way. Both before being found in contempt and afterwards, he has displayed a total lack of respect for the truth or the integrity of the legal process. When the Court threatened fines and attorney’s fees, Shekar remained unwavering in his contemptuous behavior. When the Court threatened compulsory imprisonment, Shekar took advantage of the Court’s concern for his well-being — all the while continuing his contemptuous refusal to comply. The Court has paid a high price in the expenditure of time and resources in dealing with Shekar’s persistent misconduct as has the plaintiff. The record is clear that ordinary sanctions have been and will continue to be unavailing, and Shekar leaves the Court with no choice but to impose harsh sanctions, which are not only appropriate, but required.

For the reasons stated above, the Court enters judgment against Shekar on all of Teledyne’s claims, dismisses his counterclaims, and, in addition to the usual bill of costs, assesses Shekar Teledyne’s reasonable attorney’s fees and costs stemming from its arduous efforts in demonstrating Shekar’s contempt.”

So, what do you think?  Were the extreme sanctions deserved?  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.

Sometimes, Your Wildcard May Not Be “Wild” Enough: eDiscovery Best Practices

On the very first day we launched this blog nearly six years ago (next Tuesday is our six year anniversary), one of our first blog posts was called “Don’t Get ‘Wild’ with Wildcards” where we showed how a poorly constructed wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining” actually retrieved over 300,000 files with hits because there are 269 words in the English language that begin with the letters “min” (such as words like “mink”, “mind”, “mint” and “minion”).  Sometimes, though, you have the opposite problem – your wildcard isn’t “wild” enough.

Last week a client of mine provided some search terms to me for review.  One of the searches he proposed included a wildcard term for depreciate* to reflect assets that depreciate.  See any problem with that term?

That wildcard would have picked up variations such as depreciates and depreciated, but would have missed other obvious variations like depreciating and, of course, depreciation.  Oops.

So, how do you find the actual variations of the word you want?  One way, as we noted back in September 2010, is to list all of the words that begin with your search string.  Morewords.com is one site that shows a list of words that begin with your search string.  So, to get all 269 words beginning with “min”, go here – simply substitute any characters for “min” to see the words that start with those characters.  You can choose the variations you want and incorporate them into the search instead of the wildcard – i.e., use “(mine or “mines or mining)” instead of “min*” to retrieve a more relevant result set.

However, if you don’t want to search through 269 words to get the ones you want, or if you picked a place to insert your wildcard character so that all desired terms don’t even display, there’s another way.  As we discussed a couple of years ago, you can use a dictionary.

Dictionary.com, that is.  Type in the word that you want at the top of the form and find all of the uses of it (e.g., the yellow sweater is mine, which tells you not all of the hits may be relevant to mining terms) and also variations of a term (e.g., depreciated, depreciating, depreciation).  You can even find synonyms of the word (e.g., reserve, excavate) on the left hand side of the form (via Thesaurus.com) that might lead to additional terms you may want to include in your search.

Believe it or not, a poorly placed wildcard may sometimes not be “wild” enough.  If you want to make sure you cover all of the variations you need (and only those variations), use a dictionary.

So, what do you think? Do you use wildcards in your eDiscovery searches? If so, how do you check them to ensure that they are neither over-inclusive nor under-inclusive?  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.

Now You Can Weigh in on Principles and Guidelines for Developing and Implementing a Sound eDiscovery Process: eDiscovery Best Practices

The Sedona Conference® has had a busy summer (yes, it’s still technically summer).  Last month, they finalized their guide for “possession, custody, or control” as it’s used in Federal Rules 34 and 45 and also issued a Public Comment Version of a new TAR Case Law Primer.  Now, they have also issued a Public Comment Version of a new Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process, which is a project of its Working Group on Electronic Document Retention and Production (WG1).

As noted in the Preface, the Commentary “represents the culmination of five years of spirited dialogue within WG1 on a number of sensitive topics that go to the heart of what it means to be a competent advocate and officer of the court in an age of increasing technological complexity. It addresses the tension between the principle of party-controlled discovery, and the need for accountability in the discovery process, by establishing a series of reasonable expectations and by providing practical guidance to meet these competing interests. The overriding goal of the principles and guidelines set forth in this Commentary is to reduce the cost and burden typically associated with modern discovery by helping litigants prepare for – or better yet, avoid altogether – challenges to their chosen discovery processes, and by providing guidance to the courts in the (ideally) rare instances in which they are called upon to examine a party’s discovery conduct.”

The preliminary 55 page PDF guide includes an Introduction and the following 13 principles, which are:

  • Principle 1: An e-discovery process is not required to be perfect, or even the best available, but it should be reasonable under the circumstances. When evaluating the reasonableness of an e-discovery process, parties and the court should consider issues of proportionality, including the benefits and burdens of a particular process.
  • Principle 2: An e-discovery process should be developed and implemented by a responding party after reasonable due diligence, including consultation with persons with subject-matter expertise, and technical knowledge and competence.
  • Principle 3: Responding parties are best situated to evaluate and select the procedures, methodologies, and technologies for their e-discovery process
  • Principle 4: Parties may reduce or eliminate the likelihood of formal discovery or expensive and time consuming motion practice about an e-discovery process by conferring and exchanging non-privileged information about that process.
  • Principle 5: When developing and implementing an e-discovery process, a responding party should consider how it would demonstrate the reasonableness of its process if required to do so. Documentation of significant decisions made during e-discovery may be helpful in demonstrating that the process was reasonable.
  • Principle 6: An e-discovery process should include reasonable validation.
  • Principle 7: A reasonable e-discovery process may use search terms and other culling methods to remove ESI that is duplicative, cumulative, or not reasonably likely to contain information within the scope of discovery.
  • Principle 8: A review process can be reasonable even if it does not include manual review of all potentially responsive ESI.
  • Principle 9: Technology-assisted review should be held to the same standard of reasonableness as any other e-discovery process.
  • Principle 10: A party may use any reasonable process, including a technology-assisted process, to identify and withhold privileged or otherwise protected information. A party should not be required to use any process that does not adequately protect its rights to withhold privileged or otherwise protected information from production.
  • Principle 11: Whenever possible, a dispute about an e-discovery process should be timely resolved through informal mechanisms, such as mediation between the parties and conferences with the court, rather than through formal motion practice and hearings.
  • Principle 12: A party should not be required to provide discovery about its e-discovery process without good cause.
  • Principle 13: The court should not decide a motion regarding the adequacy of an e-discovery process without a sufficient factual record. In many instances, such a motion may not be ripe for determination before there has been substantial or complete production.

Principles 1 through 5 are General Principles, 6 through 10 are Specific Applications of the General Principles and 11 through 13 are principles related to Defending the E-Discovery Process.

As usual, the Commentary is free and you can download it here.  The Sedona Conference welcomes input on the Commentary through November 15, 2016. Questions and comments regarding the Primer may be sent to comments@sedonaconference.org.

So, what do you think?  Will these new principles help organizations implement a sound eDiscovery process?  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.

According to Gartner, Machine Learning is at the Peak of Inflated Expectations: eDiscovery Trends

I missed this earlier, but, last month, Gartner published the 2016 edition of its Hype Cycle chart.  Machine Learning is only one of several “smart machine technologies” that will be “the most disruptive class of technologies over the next 10 years”.  But, if you look at the chart closely, you will find that Machine Learning is at the “Peak of Inflated Expectations”.

The report (available here), which “distills insight from more than 2,000 technologies”, says the following regarding smart machine technologies:

“Smart machine technologies will be the most disruptive class of technologies over the next 10 years due to radical computational power, near-endless amounts of data, and unprecedented advances in deep neural networks that will allow organizations with smart machine technologies to harness data in order to adapt to new situations and solve problems that no one has encountered previously. Enterprises that are seeking leverage in this theme should consider the following technologies: Smart Dust, Machine Learning, Virtual Personal Assistants, Cognitive Expert Advisors, Smart Data Discovery, Smart Workspace, Conversational User Interfaces, Smart Robots, Commercial UAVs (Drones), Autonomous Vehicles, Natural-Language Question Answering, Personal Analytics, Enterprise Taxonomy and Ontology Management, Data Broker PaaS (dbrPaaS), and Context Brokering.”

The infographic shown below (have I told you lately how I love infographics?) shows the following phases: “Innovation Trigger”, “Peak of Inflated Expectations”, “Trough of Disillusionment”, “Slope of Enlightenment” and “Plateau of Productivity”.  It also color codes each of the technologies as to the number of years to mainstream adoption (i.e., less than 2 years, 2 to 5 years, 5 to 10 years, more than 10 years and obsolete before plateau).  Sorry folks, self-driving cars (a.k.a., Autonomous Vehicles) are still more than ten years away.  Machine learning is at the top of the curve (i.e., “Peak of Inflated Expectations”) and is predicted to become a mainstream item within two to five years.  Great news, though, in the short term, that means we’re about to head down the “Trough of Disillusionment”.  Oh dear.  Here is the infographic again, full-sized for easier reading:

hypecycle2016

Here is additional commentary from Sharon Nelson of Ride the Lightning and Serdar Yegulalp of InfoWorld.

So, what do you think?  Are the expectations for machine learning technology inflated at this point?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Here’s Your Chance to Hear Experts’ Views on eDiscovery Business Confidence: eDiscovery Trends

Earlier this week, we covered results from the ACEDS and Complex Discovery Summer 2016 eDiscovery Business Confidence Survey, which was conducted last month with the results published on Rob Robinson’s terrific Complex Discovery site (in my post, I focused on trends over the past three surveys to see how the responses have varied from quarter to quarter).  Now, you can hear experts comment on the results of the survey and their thoughts about the state of eDiscovery business in general!

This time, there were 168 total respondents to the survey, which is more than double the number of respondents as the Spring survey.  In fact, there twelve were more respondents than the first two surveys combined.  Obviously, sponsorship from ACEDS and promotion from EDRM, LTPI, Masters Conference, and Women in eDiscovery helped increase the number of respondents dramatically.  The end result is perhaps the most meaningful eDiscovery Business Confidence Survey results yet.

Next Thursday, September 15, ACEDS will be hosting a webinar (sponsored by CloudNine) regarding the survey.  During this one hour presentation and discussion led by ACEDS Executive Director Mary Mack, expert panelists will share and discuss the results of this quarterly survey. The discussion will feature eDiscovery leaders including George Socha, Co-Founder of EDRM and Managing Director of Thought Leadership at BDO, Eric Mandel, Managing Member at Indicium Law PLC and Member of the Board for LTPI and me.  We will not only take a look at this survey in general, we will also break down the results within different response groups (e.g., providers, law firms, corporations, etc.) and compare the results of this survey to those of past surveys to discuss changes in trends.

The webinar will be conducted at 1:00 pm ET (which is 12:00 pm CT, 11:00 am MT and 10:00 am PT).  Oh, and 5:00 pm GMT (Greenwich Mean Time).  If you’re in any other time zone, you’ll have to figure it out for yourself.  Click on the link here to register for the webinar.  Hope to see you there!

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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