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Electronic Discovery

Court Determines Granting Defendant’s Motion to Request Overseas Documents is ‘Futile’: eDiscovery Case Law

In Al-Ameri et. al. v. Johns Hopkins Hospital, No. GLR-15-1163 (D.Md. May 26, 2016), Maryland Magistrate Judge Stephanie A. Gallagher denied the defendant’s motion to compel on the basis that compelling the discovery sought would be futile.

Case Background

In this medical malpractice case, the defendant served the plaintiffs with its discovery requests in July 2015.  Although the plaintiffs responded to the defendant’s interrogatories and document requests in October 2015, the defendant contended that the response was insufficient, with all of the disputed discovery requests seek documents that are located in the United Arab Emirates (UAE).

The plaintiffs did not challenge the relevance of the supplemental discovery sought, the defendant’s entitlement to the discovery sought, or that the plaintiffs’ heretofore-provided documents were not sufficiently responsive to the defendant’s requests. Instead, the plaintiffs indicated that they had made good faith efforts to obtain the requested documents from relevant entities in the UAE, but to no avail so far.  The plaintiffs even provided the defendant with authorizations to independently obtain the medical records from the UAE facilities, with plaintiffs’ counsel maintaining that it had “made numerous efforts” to produce itemized lien information from both the UAE hospitals and the UAE embassy.  Nonetheless, after conferring with plaintiffs’ counsel to address the purported deficiencies in the production, the defendant filed an instant motion to compel production.

Judge’s Ruling

Regarding the motion, Judge Gallagher stated:

“The so-called ‘discovery dispute’ regarding these document requests, then, is not really a dispute at all. Plaintiffs concede that they must produce the existing requested documents, but the fact remains that, for over a year, they have tried, and failed, to do so. Thus, as discussed during the status conference call, there is no reason to grant Defendant’s motion as to Requests Nos. 4, 5, 20, and 21, since doing so would be futile. Plaintiffs are not engaging in gamesmanship or withholding information. They acknowledge that the documents are crucial to the case, but are presently unable to obtain them. Compelling these documents would not suddenly change Plaintiffs’ situation or make the documents producible.”  As a result, Judge Gallagher denied the defendant’s motion because compelling the discovery would be futile.

So, what do you think?  Was the court correct to deny the motion?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Is a Blended Document Review Rate of $466 Per Hour Excessive?: Best of eDiscovery Daily

Even those of us at eDiscovery Daily have to take an occasional vacation (which, as you can see by the picture above, means taking the kids to their favorite water park); however, instead of “going dark” for a few days, we thought we would take a look back at some topics that we’ve covered in the past.  Today’s post is our all-time most viewed post ever.  I guess it struck a nerve with our readers!  Enjoy!

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Remember when we raised the question as to whether it is time to ditch the per hour model for document review?  One of the cases we highlighted for perceived overbilling was ruled upon here.

In the case In re Citigroup Inc. Securities Litigation, No. 09 MD 2070 (SHS), 07 Civ. 9901 (SHS) (S.D.N.Y. Aug. 1, 2013), New York District Judge Sidney H. Stein rejected as unreasonable the plaintiffs’ lead counsel’s proffered blended rate of more than $400 for contract attorneys—more than the blended rate charged for associate attorneys—most of whom were tasked with routine document review work.

In this securities fraud matter, a class of plaintiffs claimed Citigroup understated the risks of assets backed by subprime mortgages. After the parties settled the matter for $590 million, Judge Stein had to evaluate whether the settlement was “fair, reasonable, and adequate and what a reasonable fee for plaintiffs’ attorneys should be.” The court issued a preliminary approval of the settlement and certified the class. In his opinion, Judge Stein considered the plaintiffs’ motion for final approval of the settlement and allocation and the plaintiffs’ lead counsel’s motion for attorneys’ fees and costs of $97.5 million. After approving the settlement and allocation, Judge Stein decided that the plaintiffs’ counsel was entitled to a fee award and reimbursement of expenses but in an amount less than the lead counsel proposed.

One shareholder objected to the lead counsel’s billing practices, claiming the contract attorneys’ rates were exorbitant.

Judge Stein carefully scrutinized the contract attorneys’ proposed hourly rates “not only because those rates are overstated, but also because the total proposed lodestar for contract attorneys dwarfs that of the firm associates, counsel, and partners: $28.6 million for contract attorneys compared to a combined $17 million for all other attorneys.” The proposed blended hourly rate was $402 for firm associates and $632 for firm partners. However, the firm asked for contract attorney hourly rates as high as $550 with a blended rate of $466. The plaintiff explained that these “contract attorneys performed the work of, and have the qualifications of, law firm associates and so should be billed at rates commensurate with the rates of associates of similar experience levels.” In response, the complaining shareholder suggested that a more appropriate rate for contract attorneys would be significantly lower: “no reasonable paying client would accept a rate above $100 per hour.” (emphasis added)

Judge Stein rejected the plaintiffs’ argument that the contract attorneys should be billed at rates comparable to firm attorneys, citing authority that “clients generally pay less for the work of contract attorneys than for that of firm associates”:

“There is little excuse in this day and age for delegating document review (particularly primary review or first pass review) to anyone other than extremely low-cost, low-overhead temporary employees (read, contract attorneys)—and there is absolutely no excuse for paying those temporary, low-overhead employees $40 or $50 an hour and then marking up their pay ten times for billing purposes.”

Furthermore, “[o]nly a very few of the scores of contract attorneys here participated in depositions or supervised others’ work, while the vast majority spent their time reviewing documents.” Accordingly, the court decided the appropriate rate would be $200, taking into account the attorneys’ qualifications, work performed, and market rates.

For this and other reasons, the court found the lead counsel’s proposed lodestar “significantly overstated” and made a number of reductions. The reductions included the following amounts:

  • $7.5 million for document review by contract attorneys that happened after the parties agreed to settle; 20 of the contract attorneys were hired on or about the day of the settlement.
  • $12 million for reducing the blended hourly rate of contract attorneys from $466 to $200 for 45,300 hours, particularly where the bills reflected that these attorneys performed document review—not higher-level work—all day.
  • 10% off the “remaining balance to account for waste and inefficiency which, the Court concludes, a reasonable hypothetical client would not accept.”

As a result, the court awarded a reduced amount of $70.8 million in attorneys’ fees, or 12% of the $590 million common fund.

So, what do you think?  Was the requested amount excessive?   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.

Can You Figure Out How I Wrote this Blog Post?: Best of eDiscovery Daily

Even those of us at eDiscovery Daily have to take an occasional vacation (which, as you can see by the picture above, means taking the kids to their favorite water park); however, instead of “going dark” for a few days, we thought we would take a look back at some topics that we’ve covered in the past.  Today’s post takes a look back at a little experiment I performed (which was two phones ago for me, by the way).  Enjoy!

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I have to be honest, this blog post contains quite a bit of content from one of the early posts from this blog.  However, there is something different about this version of the content – it looks a bit unusual.  Can you figure out how I wrote it?  See if you can figure it out before you get to the bottom.  I promise I haven’t lost my mind.

Types of exceptions file

It’s important to note that efforts to quote fix quote these files will often change the files parentheses and the meta data associated with them parentheses, so it’s important to establish with opposing counsel what measures to address the exceptions are acceptable. Some files may not be recoverable and you need to agree up front how far to go to attempt to recover them.

  • Corrupted files colon files can become corrupted 4 a variety of reasons, from application failures 2 system crashes to computer viruses. I recently had a case where 40 percent of the collection what’s contained in to corrupt Outlook PST file dash fortunately, we were able to repair those files and recover the messages. If you have read Lee accessible backups of the files, try to restore them from backup. If not, you will need to try using a repair utility. Outlook comes with a utility called scan PST. Exe that scans and repairs PST and OST file, and there are utilities parenthesis including freeware utilities parenthesis available via the web foremost file types. If all else fails, you can hire a-data recovery expert, but that can get very expensive.
  • Password protected files colon most collections usually contain at least some password protected files. Files can require a password to enable them to be edited, or even just to view them. As the most popular publication format, PDF files are often password protected from editing, but they can still be feud 2 support review parenthesis though some search engines May fail to index them parenthesis. If a file is password protected, you can try to obtain the password from the custodian providing the file dash if the custodian is unavailable or unable to remember the password, you can try a password cracking application, which will run through a series of character combinations to attempt to find the password. Be patient, it takes time, and doesn’t always succeed.
  • Unsupported file types corn in most collections, there are some unusual file types that art supported by the review application, such as file for legacy or specialized applications parenthesis E. G. AutoCAD for engineering drawing parenthesis. You may not even initially no what type of files they are semi colon if not, you can find out based on file extension by looking the file extension up in file ext. If your review application can’t read the file, it also can’t index the files for searching or display them 4 review. If those file maybe responses 2 discovery requests, review them with the natives application to determine they’re relevancy.
  • No dash text file colon files with no searchable text aren’t really exceptions dash they have to be accounted for, but they won’t be retrieved in searches, so it’s important to make sure they don’t quote slip through the cracks unquote. It’s common to perform optical character recognition parenthesis Boosie are parenthesis on Tiff files and image only PDF files, because they are common document 4 minutes. Other types of no text files, such as pictures in JTAG or PNG format, are usually not oser, unless there is an expectation that they will have significant text.

Did you figure it out?  I “dictated” the above content using speech-to-text on my phone, a Samsung Galaxy 3 (yes, that was three years and four versions ago, I will have to update the “experiment” soon to see if the speech-to-text is any better now on my Apple iPhone 6).  I duplicated the formatting from the earlier post, but left the text the way that the phone “heard” it.  Some of the choices it made were interesting: it understands “period” and “comma” as punctuation, but not “colon”, “quote” or “parenthesis”.  Words like “viewed” became “feud”, “readily” became “read Lee” and “OCR” became “Boosie are”.  It also often either dropped or added an “s” to words that I spoke.

These days, more ESI is discoverable from sources that are non-formalized, including texts and “tweets”.  Acronyms and abbreviations (and frequent misspelling of words) is common in these data sources (whether typed or through bad dictation), which makes searching them for responsive information very challenging.  You need to get creative when searching these sources and use mechanisms such as conceptual clustering to group similar documents together, as well as stemming and fuzzy searching to find variations and misspellings of words.

Want to see the original version of the post?  Here it is.

So, what do you think?  How do you handle informal communications, like texts and “tweets”, in your searching of ESI?   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.

Data May Be Doubling Every Couple of Years, But How Much of it is Original?: Best of eDiscovery Daily

Even those of us at eDiscovery Daily have to take an occasional vacation (which, as you can see by the picture above, means taking the kids to their favorite water park); however, instead of “going dark” for a few days, we thought we would take a look back at some topics that we’ve covered in the past.  Today’s post takes a look back at the challenge of managing duplicative ESI during eDiscovery.  Enjoy!

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According to the Compliance, Governance and Oversight Council (CGOC), information volume in most organizations doubles every 18-24 months (now, it’s more like every 1.2 years). However, just because it doubles doesn’t mean that it’s all original. Like a bad cover band singing Free Bird, the rendition may be unique, but the content is the same. The key is limiting review to unique content.

When reviewers are reviewing the same files again and again, it not only drives up costs unnecessarily, but it could also lead to problems if the same file is categorized differently by different reviewers (for example, inadvertent production of a duplicate of a privileged file if it is not correctly categorized).

Of course, we all know the importance of identifying exact duplicates (that contain the exact same content in the same file format) which can be identified through MD5 and SHA-1 hash values, so that they can be removed from the review population and save considerable review costs.

Identifying near duplicates that contain the same (or almost the same) information (such as a Word document published to an Adobe PDF file where the content is the same, but the file format is different, so the hash value will be different) also reduces redundant review and saves costs.

Then, there is message thread analysis. Many email messages are part of a larger discussion, sometimes just between two parties, and, other times, between a number of parties in the discussion. To review each email in the discussion thread would result in much of the same information being reviewed over and over again. Pulling those messages together and enabling them to be reviewed as an entire discussion can eliminate that redundant review. That includes any side conversations within the discussion that may or may not be related to the original topic (e.g., a side discussion about the latest misstep by Anthony Weiner).

Clustering is a process which pulls similar documents together based on content so that the duplicative information can be identified more quickly and eliminated to reduce redundancy. With clustering, you can minimize review of duplicative information within documents and emails, saving time and cost and ensuring consistency in the review. As a result, even if the data in your organization doubles every couple of years, the cost of your review shouldn’t.

So, what do you think? Does your review tool support clustering technology to pull similar content together for review? 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.

No Victory Laps on Social Media: eDiscovery Trends

This is the second time this month I’ve covered a “social media gone wrong” story (here was the previous story I covered), but I just couldn’t ignore this story.

As covered by the ABA Journal (Clients drop firm after lawyer uses Twitter to celebrate ‘win’ against parents of disabled children, written by Martha Neil), a British law firm suffered a sudden loss of business over the last few days, after a series of tweets by a founding partner who serves as its managing director ignited a firestorm.

Mark Small of Baker Small heads a law firm known for its leading niche representation of local government councils defending against claims by parents seeking “special educational needs” funding for disabled children.  However, Small was perceived as “gloating” over a lack of funding for disabled children by a number of observers. They pointed to a tweet about “a great ‘win’ last week which sent some parents into a storm!” and a tweet apparently responding to criticism that included a photo of a kitten and said Baker had received “great tweets” and had “just shared them with my cat,” the newspaper reports.

By Sunday, with parents lobbying their own local authorities not to hire Baker Small again, the firm began to apologize for the tweets that upset the parents, deleting the tweets and flooding its Twitter feed with re-tweets that supported parents.

However, it may already be too late to reverse the damage.  At least eight local authorities, nearly half of the twenty represented by Baker Small in special-education cases have said they have either suspended their contracts with the firm or said they intend to do so, the Guardian reports.

When it comes to the ability to reach the world through social media posts, it’s important to remember that with great power comes great responsibility.  Victory laps on social media are often not a good idea.  Just ask this daughter of a laid off school administrator who told the world on Facebook to “SUCK IT”, costing her father an $80,000 discrimination settlement.

So, what do you think?  Have you ever made a social media post that you regretted?  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.

Former IT Administrator Found Guilty for Deleting Files, Faces Possible Jail Time: eDiscovery Trends

Last month, we covered the case of a former IT administrator who was charged with hacking into the computer system of his former employer and deleting files.  Here’s a case where another former IT administrator was found guilty by a Texas jury for deleting files – while still employed by the company – and faces possible jail time!

As covered by Wired (A Texas Jury’s Guilty Verdict Should Worry IT Admins, written by Andy Greenberg), last week, a jury in the trial of 37-year-old Michael Thomas found him guilty of violating the Computer Fraud and Abuse Act, a verdict with a maximum sentence of 10 years in prison and up to $250,000 in restitution payments.  However, in this case, he’s accused of deleting a collection of his employer’s files before leaving his job as a systems administrator at the auto dealership software firm ClickMotive in 2011.

As Thomas’ lawyer Tor Ekeland has pointed out, Thomas wasn’t charged with the usual CFAA violation of “unauthorized access” or “exceeding authorized access,” but rather “unauthorized damages”.  Thomas’s guilty verdict, argues Ekeland, is “dangerous for anyone working in the IT industry. If you get in a dispute with your employer, and you delete something even in the routine course of your work, you can be charged with a felony.”

Prosecutors, on the other hand, called the case a victory. “The jury’s verdict in this case sends an important message to IT professionals everywhere: an employee in the defendant’s position holds the proverbial keys to the kingdom and with that power comes great responsibility,” wrote U.S. Attorney Bales in a press statement. “Intentionally causing damage to a computer system without authorization is a criminal act that can and will be prosecuted.”

During the trial, the prosecution presented evidence that Thomas intentionally harmed ClickMotive by combing through executives’ email, tampering with the network’s error-alert system, and changing authentication settings that disabled the company’s VPN for remote employees. He also deleted 615 backup files and some pages of an internal wiki.  ClickMotive claimed that those changes caused $140,000 in damages as they struggled to determine the extent of Thomas’s tampering.

The defense detailed at trial how Thomas went into the company’s offices the weekend before he quit—just days after layoffs—to help defend the company against a denial-of-service attack on its website and to repair a cascading power outage problem. And the 615 backup files he deleted were all replicated elsewhere on the network.  Ekeland also points out that the prosecution never entered Thomas’s employment agreement as evidence, and yet used that agreement to define the “unauthorized damages” that constitute his crime. “There was not a single communication produced at trial, a single written document that showed he wasn’t authorized to do what he did,” says Ekeland. “After the fact, your boss says ‘that wasn’t authorized,’ you violated an unwritten policy, and bang, you’re hit with a felony.”

Thomas’s defense team says they plan to ask the judge in the trial to overrule the jury under a Rule 29 motion, and if that fails, to seek an appeal.

So, what do you think?  Should IT administrators be held criminally liable for deleting employer files?  Or should their liability be limited to civil damages?  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 Orders Non Party to Preserve Some, But Not All, Information Requested by Plaintiff: eDiscovery Case Law

In Swetlic Chiropractic & Rehabilitation Center, Inc. v. Foot Levelers, Inc., et. al., No. 16-236 (S.D. Ohio, Apr. 27, 2016), Ohio Magistrate Judge Elizabeth A. Preston Deavers ruled that the plaintiff had satisfied its burden to demonstrate a real danger that relevant evidence in a non-party’s possession would be destroyed absent a court order and ordered WestFax, the non-party, “to preserve any transmission report or other documents and ESI that identify fax numbers that received Defendants’ advertising faxes.”  However, noting that the requested scope of the preservation order “appears overly broad”, she permitted WestFax to file objections to the Order within 14 days if unable to extrajudicially resolve any such objection with the plaintiff.

Case Background

In this case, the plaintiff filed suit, alleging that the defendants sent advertisements to the plaintiff and others in violation of the Telephone Consumer Protection Act (“TCPA”).  The plaintiff determined that non-party WestFax could have transmission reports and other electronically stored information (“ESI”) that identify fax numbers that received the defendants’ advertising faxes and asserted a need for this information to establish which recipients are in the proposed class and how many violations of the TCPA occurred.

WestFax indicated to the plaintiff that transmission reports are automatically deleted within sixty to ninety days following each fax broadcast and it would only preserve the evidence with an appropriate Court Order.  As a result, the plaintiff sought an Order compelling non-party WestFax to preserve several categories of ESI related to the defendants, including email, databases, logs, application files and fragments, and all email from third party resources (e.g. Hotmail, Yahoo, Gmail, AOL, etc.), directing it to preserve the information through obtaining an “exact mirror (‘bit stream’) image” with regard to online storage, storage devices, stand-alone computers, and network workstations.

Judge’s Ruling

Noting that “Plaintiff has demonstrated that as a result of WestFax’s alleged retention policies, evidence relevant to this action may be destroyed absent a Court Order”, Judge Deavers concluded that “Plaintiff has satisfied its burden to seek a discovery order at this juncture notwithstanding that the parties have not conducted their Rule 26(f) conference.”  Given WestFax’s alleged refusal to retain information absent a court order, Judge Deavers found that there is a “lack of any other available remedy.”

However, noting that “it appears that Plaintiff failed to serve the subject Motion on WestFax such that it is unlikely that it has had an opportunity to voice any such objection”, expressing “concerns with the breadth of the information Plaintiff is requesting the Court to order WestFax to preserve” and also with the “exact mirror (‘bit stream’) image” method proposed by the plaintiff, Judge Deavers ruled that the plaintiff had “failed to demonstrate that the requested order would not be unduly burdensome and has further failed to establish that mirror imaging is necessary.”  So, Judge Deavers ordered WestFax “to preserve any transmission report or other documents and ESI that identify fax numbers that received Defendants’ advertising faxes”, but permitted WestFax to file objections to the Order within 14 days if unable to extrajudicially resolve any such objection with the plaintiff.

So, what do you think?  How far should courts go to order non-parties to preserve potentially responsive ESI?  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.

Tuesday LTWC 2016 Sessions: eDiscovery Trends

As noted yesterday, LegalTech West Coast 2016 (LTWC) is happening this week in San Francisco and eDiscovery Daily is reporting about the latest eDiscovery trends being discussed at the show.  If you’re in the San Francisco area, today is the last day to come check out the show – there are a number of sessions available and at least 56 exhibitors providing information on their products and services.

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 24 hits.  Sessions in the main conference tracks include:

9:00 AM – 10:00 AM:

The Encryption Debate: Privacy, Public Safety and Data Security

Apple vs. FBI in the wake of the San Bernardino shooters. The Paris and Brussels attacks. Is it possible to find a balance between protecting user privacy while ensuring national security and public safety? Join us as advocates for each side argue their stance in this hot button debate.

Speakers are: David Bitkower, Principal Deputy Assistant Attorney General, Criminal Division, US Department of Justice; Anthony D. Romero, Executive Director, American Civil Liberties Union.  Discussion Leader: Erin E. Harrison, Editor in Chief, Legaltech News, ALM.

10:30 AM – 11:30 AM:

Information Governance and the Updated FRCP: Speed, Proportionality, Preservation and Ethical Challenges

  • How have the December 2015 changes to the Federal Rules of Civil Procedure altered legal strategies in the discovery process and thus the information governance efforts necessary to support those strategies?
  • Mapping and categorizing data sets proactively will help information governance professionals identify and preserve potentially relevant information more quickly when the inevitable lawsuit ensues.
  • Defending the identification and preservation processes will depend on effective information governance disciplines while preparing for, and reacting to, litigation.
  • Navigating potential ethical challenges as to advice on data retention and disposition in light of the updated Rules.

Speakers are: John Janhunen, Corporate Counsel, Google Inc.; Heidi Maher, Executive Director, CGOC.  Discussion Leader: John Isaza, Partner, Rimon PC.

Legal Innovation Lightning Round One

Join us for a series of fast-paced, successive demos and talks featuring the latest emerging legal tech companies working to advance the legal system. During this Shark Tank­ style session, our presenters have the opportunity to “pitch” their products to and receive feedback from a panel of judges consisting of investors, academics and industry giants.

Speakers and Judges to include are: David Fisher, CEO & Founder, ClearLegal; David Slonim, Co-Founder, EstatePass; Monica Bay, Fellow, CodeX; Nicole Shanahan, Fellow , CodeX.  Discussion Leader: Oliver Goodenough, Professor and Co-Director of the Center for Legal Innovation, Vermont Law School.

Ethical Considerations for Machine Learning and Other Future Technologies

Can technology perform the same tasks as a human lawyer? This session explores how computers will soon transform the delivery of legal services. Attendees gain an understanding of the various legal capabilities of computers in the near-future, enabling law firms to work smarter and more efficiently.

Speakers to include are: Dr. Zev J. Eigen, Global Director of Analytics, Littler Mendelson, PC; Judy Selby, Former Partner and Co-leader, Information Governance Team, BakerHostetler.  Discussion Leader: Carolyn Southerland, Managing Director, Morae Legal, Member, Houston Chapter of Women in eDiscovery.

1:30 PM – 2:30 PM:

Can Proportionality in Discovery Finally Be Realized with the New Federal Rules?

  • Can the new Rules finally fulfill the promise of a “just, speedy, and inexpensive” process?
  • Are companies reconsidering what’s reasonable for preservation?
  • Has the plaintiff’s bar been frustrated in obtaining discovery as it feared?
  • Are the parties having more meaningful Rule 26(f) conferences?
  • How will proportionality considerations affect third party subpoenas?

Speakers to include: Mira Edelman, Senior Discovery Counsel, Google Inc.; Hon. Andrew J. Peck, United States Magistrate Judge, United States District Court, Southern District of New York; David L. Stanton, Litigation Partner and Information Law & Electronic Discovery Team Leader, Pillsbury Winthrop Shaw Pittman LLP.  Discussion Leader: Patrick Oot, Partner, Shook, Hardy & Bacon LLP.

Legal Innovation Lightning Round Two

In continuation of this morning’s session, participants hear from a second group of legal technology disruptors who demonstrate how they are working to revolutionize the law. During this Shark Tank­ style session, presenters have the opportunity to get in front of our esteemed panel of judges who represent various players in the legal tech ecosystem; panelists will in turn share their views on each presentation.

Speakers and Judges to include are: Leila Banijamali, Founder and General Counsel, Startup Documents; Noory Bechor, CEO & Founder, LawGeex; Kevin Miller, CEO & Founder, Legal Sifter; Jonathan Pyle, Founder , Docassemble; Monica Bay, Fellow, CodeX; Oliver Goodenough, Professor and Co-Director of the Center for Legal Innovation, Vermont Law School.  Discussion Leader: Nicole Shanahan, Fellow , CodeX.

E-Discovery Rainmaking at the Law Firm: A New Model for Processing Hosting and Review

As law firms start to insource more and more of their clients work – cost effectively – the paradigm for using third party vendors has shifted to software as a service and enterprise deployments offered by the firm from the traditional client-firm-vendor trifecta. This case study illustrates how one law firm is successfully offering e-discovery services effectively through managed services partnerships with discovery software and service vendors.

Speakers to include are: Robert E. Tonn, Partner, Holland & Knight LLP; Joan Washburn, Director of Litigation/eDiscovery Services, Holland & Knight LLP.

2:45 PM – 3:45 PM:

Incident Readiness: The Role of Information Governance in Mitigating Breach Exposure

  • Information breaches are increasingly common. In today’s business environment, information is power, and those who control information have the most power.  Bad actors are incentivized to break in, or recruit insiders, to steal data – to sell identities on the black market, as hacktivists to make a socio-political statement, as disgruntled employees and customers to get back at a corporation they think wronged them.
  • In most of the recent high-profile data breaches, the bad actors were in the systems for a long time, acting unbeknownst to their victim and with little resistance; and the scope of the breaches were difficult to quickly ascertain. Most security experts agree that perimeter security is important but isn’t near enough – so what else can we do?
  • In this session our expert panel will explore the relationship between Information Governance and Information Security and answer important questions such as:
    • What role can IG play in helping companies detect breaches more quickly and have greater confidence that they can identify the information that was at risk or stolen?
    • How can IG support an organization’s ability to establish better security protocols and processes?
    • What disciplines exist in a mature IG program that can aid in evaluating the impact of a breach?

Speakers to include: Jeffrey J. Beard, Esq., GRC & IG Leader, IBM; Michael S. Dicke, Partner, Securities Litigation, Fenwick & West LLP; Tolga Erbay, Senior Manager, Security Risk and Compliance, Dropbox.  Discussion Leader: John Isaza, Partner, Rimon PC.

In addition to these, there are other sessions today that might be of interest.  For a complete description for all sessions today, click here.

So, what do you think?  Did you attend LTWC this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Welcome to LegalTech West Coast 2016!: eDiscovery Trends

Today is the start of LegalTech® West Coast 2016 (LTWC) in San Francisco –and eDiscovery Daily is reporting about the latest eDiscovery trends being discussed at the show.  Today and tomorrow, we will provide a description of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the San Francisco area, come check out the show – there are a number of sessions (both paid and free) available and at least 56 exhibitors providing information on their products and services.

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 31 hits.  Sessions in the main conference tracks include:

10:30 AM – 11:45 AM:

The Evolving Forensic Technology Landscape

In this program, experienced technologists will discuss current issues in forensics and collections, including:

  • What are the latest challenges around collection of ESI?
  • How are technology advances in computers, systems, and mobile devices changing forensics?
  • What lessons about collections and forensics can we learn from recent high-profile cases?
  • How are organizations facing the newest challenge: Data collection from Internet of Things (IoT) devices?

Speakers are: Bryon Bratcher, Director of Practice Support, Reed Smith LLP; Benjamin Robbins, eDiscovery and Information Governance, LinkedIn; Christopher Sitter, EnCE, eDiscovery & Digital Forensics Senior Manager, Juniper Networks.  Discussion Leader: Daniel Blair, Vice President for Innovative Strategies, DiscoverReady.

12:30 PM – 1:30 PM:

Moving Beyond E-Discovery Review: TAR for Smart People

Once controversial, technology assisted review (TAR) has gained judicial acceptance and is increasingly used for production reviews. Today, the challenge is to take TAR to the next level, using it for a variety of purposes including investigations, early case assessment, criminal matters, inbound productions, privilege protection and more.

Smart legal professionals are using a new TAR protocol called continuous active learning (CAL), which has proven more effective because the system gets smarter as a review progresses. Now you find can relevant documents faster—at lower cost. CAL also handles rolling deliveries and works with low-richness collections.

Join our panel of e-discovery veterans for an informative look at how corporations and their law firms are moving beyond simple e-discovery review with the power of TAR and CAL. Our panelists will discuss:

  • How CAL works and why it matters
  • A trial lawyer’s perspective on using TAR within a law firm
  • An in-house counsel’s view of TAR for corporate litigation
  • Using TAR for criminal matters and for civil investigations

In this hour, we’ll take a hard look at the future of TAR for 2016 and beyond. Attendees will receive a free copy of the newly released second edition of Catalyst’s popular book, “TAR for Smart People: How Technology Assisted Review Works and Why It Matters for Legal Professionals.”

Speakers to include: Russell M. Aoki, Partner, Aoki Law PLLC; Dera J. Nevin, Director, eDiscovery Services, Proskauer Rose LLP; Daniel J. Polatsek, Partner, Katten Muchin Rosenman LLP; Sharyn M. Procaccio, Vice President, Assistant General Counsel, Hunt Companies Inc.  Discussion Leader: John Tredennick, CEO and Founder, Catalyst Repository Systems, Inc.

2:00 PM – 3:15 PM:

The Latest US-EU Cross-Border Privacy Issues

In the wake of the invalidation of the US-EU Safe Harbor Agreement, this panel of experts will explore the current state of affairs for cross-border data transfers and discovery, including:

  • Viable alternatives for transferring data from the EU
  • Ethical and legal considerations in the new EU-US Privacy Shield
  • The new EU-US Privacy Shield Agreement
  • The new EU General Data Protection Regulation and the “Right to be Forgotten”
  • Effective strategies for cross-border discovery
  • Effective strategies and ethical obligations for cross-border discovery
  • Updates on recent high-profile cases

Speakers to include are: David R. Cohen, Partner and Practice Group Leader Records & E-Discovery , Reed Smith LLP; Sylvie Stulic, Manager, Legal Operations and Litigation, Electronic Arts, Inc.; Brock A. Wanless, Assistant General Counsel – Government, Regulatory, and Privacy, Groupon.  Discussion Leader: Jeanne Somma, Discovery Practice Director, DiscoverReady.

3:45 PM – 5:00 PM:

Judicial Perspective: Six Months In, Are the New Federal Rules Having the Intended Effects?

In what promises to be one of most informative sessions at Legaltech, a panel of the most well-respected and experienced judges in legal technology will examine the impact of the recent amendments to the Federal Rules of Civil Procedure, including:

  • What themes are emerging in judicial decisions under the new Rules?
  • How has the emphasis on proportionality changed discovery?
  • Has amended Rule 34 really changed the way parties respond to discovery requests?
  • Are proportionality motions the new Daubert?
  • What issues do judges think will impact discovery in the next year?

Speakers to include are: Hon. Mitchell D. Dembin, United States Magistrate Judge, United States District Court, Southern District of California; Hon. Elizabeth D. Laporte, United States Magistrate Judge, United States District Court, Northern District of California; Hon. Andrew J. Peck, United States Magistrate Judge , United States District Court, Southern District of New York.  Discussion Leader: Maureen O’Neill, Senior Vice President, DiscoverReady.

In addition to these, there are other sessions today that might be of interest.  For a complete description for all sessions today, click here.

So, what do you think?  Are you planning to attend LTWC this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Here’s How You Can Catch our Webinar on How Automation is Revolutionizing eDiscovery: eDiscovery Trends

We had a terrific turnout for our special webinar on Wednesday conducted by Rob Robinson and me titled Faster, Cheaper, Better: How Automation is Revolutionizing eDiscovery, hosted by the Organization of Legal Professionals (OLP)!  But, not all of you could make it.  We get it – you’re busy.  No worries, you can check it out on demand within this post!

During the webinar, we started off with a history lesson as I discussed the historical application of automation in the discovery process, focused on the application of artificial intelligence technology through the evolution and judicial acceptance of technology assisted review.  I then talked about the emergence of artificial intelligence technology in other areas, including pre-litigation.

Rob then discussed the drivers for eDiscovery automation in terms of the biggest challenges faced by organizations today in managing eDiscovery, as well as the business opportunity of where the eDiscovery market is heading and how automation is helping drive the growth in the market.  Rob also discussed the evolution of eDiscovery technology and he walked through a brief exercise on how to consider and compare eDiscovery offerings to meet your needs.

Having set the framework for understanding the drivers and offerings in the market, Rob then defined eDiscovery automation, explaining the difference between task automation and process automation and providing examples of each.

With that framework established, I then walked through an example of task and process automation using CloudNine’s eDiscovery automation platform to demonstrate the automation of signing up for an account, uploading data for processing, as well as culling, searching and reviewing that data – all without any human interaction required!  We finished the webinar by sharing references to several good articles on the topic of eDiscovery automation and answering several good questions from the audience about the state of automation in the industry and other related topics.

If you’re interested in learning more about how automation is revolutionizing eDiscovery, or are simply interested in checking out a good, high-level demo of CloudNine’s platform (shameless plug warning!), I encourage you to check it out below (thanks, Rob!).

Also, if you did not sign up for the webinar and may not be able to check out the video right away, but would like a copy of the slides and the references to the eDiscovery automation articles, feel free to email me at daustin@cloudnincloudnine.comm and I would be happy to send you a copy.

Finally, if you’d simply like to sign up for a free account and try CloudNine for yourself, click here!

So, what do you think?  Do you think that automation is revolutionizing 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.