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Industry Trends

Problems with Review? It’s Not the End of the World – eDiscovery Best Practices

If you’re reading this, the Mayans were wrong… 🙂

If 2012 will be remembered for anything from an eDiscovery standpoint, it will be remembered for the arrival of Technology Assisted Review (TAR), aka Computer Assisted Review (CAR), as a court accepted method for conducting eDiscovery review.  Here are a few of the recent TAR cases reported on this blog.

Many associate TAR with predictive coding, but that’s not the only form of TAR to assist with review.  How the documents are organized for review can make a big difference in the efficiency of review, not only saving costs, but also improving accuracy by assigning similar documents to the same reviewer.  Organizing documents with similar content into “clusters” enables each reviewer to make quicker review decisions (for example, by looking at one document to determine responsiveness and applying the same categorization to duplicates or mere variations of that first document).  This also promotes consistency by enabling the same reviewer to review all similar documents in a cluster avoiding potential inadvertent disclosures where one reviewer marks a document as privileged while another reviewer fails to mark a copy of the that same document as such and that document gets produced.

Hot Neuron’s Clustify™ is an example of clustering software that examines the text in your documents, determines which documents are related to each other, and groups them into clusters, labeling each cluster with a set of keywords which provides a quick overview of the cluster, as well as a “representative document” against which all other documents in the cluster are compared.

Clustering can make review more efficient and effective for these types of documents:

  • Email Message Threads: The ability to group messages from a thread into a cluster enables the reviewer to quickly identify the email(s) containing the entire conversation, categorize those and either apply the same categorization to the rest or dismiss as duplicative (if so instructed).
  • Routine Reports: Periodic reports – such as a weekly accounts receivable report – that are generated can be grouped together in a cluster to enable a single reviewer to make a relevancy determination and quickly apply it to all documents in the cluster.
  • Versions of Documents: The content of each draft of a document is often similar to the previous version, so categorizing one version of the document could be quickly applied to the rest of the versions.
  • Published Documents: Publishing a file to Adobe PDF format generates an exact copy (from Word, Excel or other application) of the original file in content, but different in format, so these documents won’t be identified as “dupes” based on their HASH value.  With clustering, those documents still get grouped together so that those non-HASH dupes are still identified and addressed.

Within the parameters of a review tool like OnDemand®, which manages the review process and delivers documents quickly and effectively for review, clustering documents can speed decision making during review, saving considerable time and review costs, yet improving consistency of document classifications.

So, what do you think?  Have you used clustering software to organize documents for review?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will take a break for the holidays and will return on Wednesday, January 2, 2013. Happy Holidays from all of us at Cloudnine Discovery and eDiscovery Daily!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily 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 IDC, Big Data is Only Getting Bigger – eDiscovery Trends

According to the International Data Corporation (IDC), big data is only getting bigger.  In the publication IDC iView “Big Data, Bigger Digital Shadows, and Biggest Growth in the Far East,” (sponsored by EMC), which is excerpted here, the “digital universe” is growing even faster than we thought.

As the report notes: “at the midpoint of a longitudinal study starting with data collected in 2005 and extending to 2020, our analysis shows a continuously expanding, increasingly complex, and ever more interesting digital universe.”  IDC’s sixth annual study of the digital universe contains some interesting findings, including:

  • From 2005 to 2020, the digital universe will grow by a factor of 300, from 130 exabytes to 40,000 exabytes, or 40 trillion gigabytes (more than 5,200 gigabytes for every man, woman, and child in 2020). From now until 2020, the digital universe will about double every two years.
  • The investment in spending on IT hardware, software, services, telecommunications and staff that could be considered the “infrastructure” of the digital universe and telecommunications will grow by 40% between 2012 and 2020. As a result, the investment per gigabyte (GB) during that same period will drop from $2.00 to $0.20. Of course, investment in targeted areas like storage management, security, big data, and cloud computing will grow considerably faster.
  • A majority of the information in the digital universe, 68% in 2012, is created and consumed by consumers — watching digital TV, interacting with social media, sending camera phone images and videos between devices and around the Internet, and so on. Yet enterprises have liability or responsibility for nearly 80% of the information in the digital universe.
  • Only a tiny fraction of the digital universe has been explored for analytic value. IDC estimates that by 2020, as much as 33% of the digital universe will contain information that might be valuable if analyzed.
  • By 2020, nearly 40% of the information in the digital universe will be “touched” by cloud computing providers — meaning that a byte will be stored or processed in a cloud somewhere in its journey from originator to disposal.
  • The first Digital Universe Study was published in 2007.  At that time, IDC’s forecast for the digital universe in 2010 was 988 exabytes (in 2002, there were 5 exabytes in the world, representing an estimated growth of 19,760% in eight years).  Based on actuals, it was later revised to 1,227 exabytes (an actual growth of 24,540% in eight years).  So far, data is growing even faster than anticipated.

The report excerpt breaks out several graphs to illustrate where the digital universe is now and where it’s headed, showing how, as IT costs rise, the costs per GB will fall considerably and also showing the “geography” of the digital universe, with the US currently accounting for 32% of the digital universe.  According to IDC, the share of the digital universe attributable to emerging markets is up to 36% in 2012 and is expected to be 62% by 2020.

Obviously, this has considerable eDiscovery ramifications as data within organizations will continue to grow exponentially and a combination of good information governance programs and effective retrieval technology will be even more vital to keep eDiscovery manageable and costs in check.

So, what do you think?  Do you have a plan in place to manage exponential data growth?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

How Are You Handling Defensible Deletion? – eDiscovery Best Practices

According to the Compliance, Governance and Oversight Council (CGOC), information volume doubles every 18-24 months and 90% of the data in the world has been created in the last two years.  So, many organizations are drowning in electronically stored information (ESI) and costs associated with managing that ESI for eDiscovery are continuing to rise.  An effective plan for information governance that includes defensible deletion of ESI is an effective way of keeping that ESI from overwhelming your organization.  But, what percentage of organizations is defensibly deleting data?  A new survey from eDJGroup is attempting to find out.

Defensible deletion of ESI that has little or no business value and is not subject to legal hold is a good business practice that is protected through Rule 37(e) of the Federal Rules of Civil Procedure (commonly known as the “safe harbor” rule) which states:

Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

Barry Murphy’s article (Defensible Deletion Gaining Steam) on eDiscovery Journal discusses the eDJGroup survey and provides some interim results to two of the questions asked:

  1. Do you believe defensible deletion of information is necessary in order to manage growing volumes of digital information?: As of the article date on December 4, an overwhelming 93.0% of all respondents have said ‘yes’, 2.3% have said ‘no’ and 4.7% have said ‘don’t know / unsure’.  Frankly, I’m surprised that anybody doesn’t believe that defensible deletion is necessary!
  2. Does your organization currently defensibly delete information?: As of the article date on December 4, 14.0% of all respondents have said ‘yes, for all systems’, 54.7% have said ‘yes, in some systems’, 16.3% have said ‘no’ and 15.1% have said ‘don’t know’.  That means that over 2/3 of respondents so far (68.7%) defensibly delete information in at least some systems.

As of the article date, there had been 86 respondents.  But, the survey is not over!  You can take the survey here and contribute to the results.  Murphy says the ‘survey will close later this month, so be sure to take it now’, but doesn’t provide a specific date that it closes (one would hope it would be at the end of the month to be as inclusive as possible).  Nonetheless, ‘all respondents will get a summary of the results and have a chance to win a $250 gift card’, so it’s worthwhile to participate.

So, what do you think?  Does your organization have an information governance plan that includes defensible deletion of data?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Percentage of eDiscovery Sanctions Cases Declining – eDiscovery Trends

According to Kroll Ontrack, the percentage of eDiscovery cases addressing sanctions “dropped by approximately ten percent” compared to 2011, while “cases addressing procedural issues more than doubled”.  Let’s take a closer look at the numbers and look at some cases in each category.

As indicated in their December 4 news release, in the past year, Kroll Ontrack experts summarized 70 of the most significant state and federal judicial opinions related to the preservation, collection, review and production of electronically stored information (ESI). The breakdown of the major issues that arose in these eDiscovery cases is as follows:

  • Thirty-two percent (32%) of cases addressed sanctions regarding a variety of issues, such as preservation and spoliation, noncompliance with court orders and production disputes.  Out of 70 cases, that would be about 22 cases addressing sanctions this past year.  Here are a few of the recent sanction cases previously reported on this blog.
  • Twenty-nine percent (29%) of cases addressed procedural issues, such as search protocols, cooperation, production and privilege considerations.  Out of 70 cases, that would be about 20 cases.  Here are a few of the recent procedural issues cases previously reported on this blog.
  • Sixteen percent (16%) of cases addressed discoverability and admissibility issues.  Out of 70 cases, that would be about 11 cases.  Here are a few of the recent discoverability / admissibility cases previously reported on this blog.
  • Fourteen percent (14%) of cases discussed cost considerations, such as shifting or taxation of eDiscovery costs.  Out of 70 cases, that would be about 10 cases.  Here are a few of the recent eDiscovery costs cases previously reported on this blog.
  • Nine percent (9%) of cases discussed technology-assisted review (TAR) or predictive coding.  Out of 70 cases, that would be about 6 cases.  Here are a few of the recent TAR cases previously reported on this blog, how many did you get?

While it’s nice and appreciated that Kroll Ontrack has been summarizing the cases and compiling these statistics, I do have a couple of observations/questions about their numbers (sorry if they appear “nit-picky”):

  • Sometimes Cases Belong in More Than One Category: The case percentage totals add up to 100%, which would make sense except that some cases address issues in more than one category.  For example, In re Actos (Pioglitazone) Products Liability Litigation addressed both cooperation and technology-assisted review, and Freeman v. Dal-Tile Corp. addressed both search protocols and discovery / admissibility.  It appears that Kroll classified each case in only one group, which makes the numbers add up, but could be somewhat misleading.  In theory, some cases belong in multiple categories, so the total should exceed 100%.
  • Did Cases Addressing Procedural Issues Really Double?: Kroll reported that “cases addressing procedural issues more than doubled”; however, here is how they broke down the category last year: 14% of cases addressed various procedural issues such as searching protocol and cooperation, 13% of cases addressed various production considerations, and 12% of cases addressed privilege considerations and waivers.  That’s a total of 39% for three separate categories that now appear to be described as “procedural issues, such as search protocols, cooperation, production and privilege considerations” (29%).  So, it looks to me like the percentage of cases addressing procedural issues actually dropped 10%.  Actually, the two biggest category jumps appear to be discoverability and admissibility issues (2% last year to 16% this year) and TAR (0% last year to 9% this year).

So, what do you think?  Has your organization been involved in any eDiscovery opinions 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

New eDiscovery Guidelines for Northern District of California – eDiscovery Trends

The U.S. District Court for the Northern District of California has announced new Guidelines for counsel and litigants regarding the discovery of electronically stored information (“ESI”) effective as of last Tuesday (November 27). The Guidelines were developed by a bench-bar committee chaired by Magistrate Judge Elizabeth D. Laporte in partnership with the Court’s Rules Committee and unanimously approved by the entire Court.

As stated in the announcement: “Counsel and litigants should familiarize themselves with the Guidelines and immediately begin using the revised Standing Order for All Judges of the Northern District of California when preparing case management statements and the Checklist as appropriate when meeting and conferring.”

As noted in the announcement, in addition to the Standing Order noted above, the package of new ESI-related documents is comprised of:

In the announcement, Judge Laporte stated: “These tools are designed to promote cooperative e-discovery planning as soon as practicable that is tailored and proportionate to the needs of the particular case to achieve its just, speedy and inexpensive resolution, consistent with Rule 1 of the Federal Rules of Civil Procedure… The Court requires counsel to be familiar with these tools and confirm in the initial case management statement that they have reviewed the Guidelines regarding preservation and decided whether to enter into a stipulated order governing e-discovery, in light of the Model Stipulated Order.”

To confirm that familiarity and understanding by counsel, paragraph 6 of the Standing Order requires that all Joint Case Management Statements include:

“A brief report certifying that the parties have reviewed the Guidelines Relating to the Discovery of Electronically Stored Information (“ESI Guidelines”), and confirming that the parties have met and conferred pursuant to Fed. R. Civ. P. 26(f) regarding reasonable and proportionate steps taken to preserve evidence relevant to the issues reasonably evident in this action.”

As noted in this blog previously, other courts, such as the Southern District of New York (pilot program) and the Eastern District of Texas (for patent cases) have implemented standards for handling ESI, at least in certain situations.

So, what do you think?  Should all District courts adopt similar standards and provide similar guidelines and checklists?  If not, why not?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Another Major eDiscovery Acquisition: DTI Acquires Fios – eDiscovery Trends

As reported by Law Technology News and the Litigation Support News and Information Blog, Document Technologies Inc. (DTI), the nation’s largest independent provider of discovery services, facilities management, and knowledge process outsourcing has acquired Fios Inc., one of the electronic discovery industry’s most recognized brands.  The new company will be known as “Fios, A DTI Company.”

Atlanta-based DTI said that Fios was purchased to gain clients and staff. Based in Portland, Ore. and founded in 1999 , Fios also brings software development skills and workflow expertise to the DTI portfolio.

“We felt the opportunity to bring Fios into the DTI family was quite attractive,” said DTI CEO John Davenport Jr. “They have exactly what we look for — an exceptional group of high-performing employees, a respected name, strong relationships with an impressive list of Am Law 100 and Fortune 500 corporate clients, and most importantly, similar values and corporate cultures.”

Terms of the current deal were not disclosed.  DTI has been busy this year – this is its third acquisition of the year, after acquiring Los Angeles computer forensics specialist Data Forté in July and Houston-based legal staffing company Provius in September.

Industry consolidation continues.  This latest acquisition makes at least 44 eDiscovery industry deals so far this year, with companies such as Applied Discovery, CaseCentral, Sanction Solutions, Lateral Data and Digital Reef having been acquired.  Of course, not all acquisitions work out, as we saw recently with the HP/Autonomy purchase.  It will be interesting to see how this acquisition works out and how well DTI integrates all of its recent acquisitions.

So, what do you think?  Will the accelerated pace of eDiscovery acquisitions continue?  If so, who’s next?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily 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 Grossman-Cormack Glossary of Technology Assisted Review – eDiscovery Resources

Do you know what a “Confidence Level” is?  No, I’m not talking about Tom Brady completing football passes in coverage.  How about “Harmonic Mean”?  Maybe if I hum a few bars?  Gaussian Calculator?  Sorry, it has nothing to do with how many Tums you should eat after a big meal.  No, the answer to all of these can be found in the new Grossman-Cormack Glossary of Technology Assisted Review.

Maura Grossman and Gordon Cormack are educating us yet again with regard to Technology Assisted Review (TAR) with a comprehensive glossary that defines key TAR-related terms and also provides some key case references, including EORHB, Global Aerospace, In Re: Actos:, Kleen Products and, of course, Da Silva Moore.  The authors of the heavily cited article Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review have provided a new reference document that may help many in the industry understand key TAR concepts better.  Or, at least recognize key terms associated with TAR.  This is version 1.01, published just this month and clearly intended to evolve over time.  As the authors note in the Preamble:

“The introduction of TAR into the legal community has brought with it much confusion because different terms are being used to refer to the same thing (e.g., ‘technology assisted review,’ ‘computer-assisted review,’ ‘computer-aided review,’ ‘predictive coding,’ and ‘content based advanced analytics,’ to name but a few), and the same terms are also being used to refer to different things (e.g., ‘seed sets’ and ‘control sample’). Moreover, the introduction of complex statistical concepts, and terms-of-art from the science of information retrieval, have resulted in widespread misunderstanding and sometimes perversion of their actual meanings.

This glossary is written in an effort to bring order to chaos by introducing a common framework and set of definitions for use by the bar, the bench, and service providers. The glossary endeavors to be comprehensive, but its definitions are necessarily brief. Interested readers may look elsewhere for detailed information concerning any of these topics. The terms in the glossary are presented in alphabetical order, with all defined terms in capital letters.

In the future, we plan to create an electronic version of this glossary that will contain live links, cross references, and annotations. We also envision this glossary to be a living, breathing work that will evolve over time. Towards that end, we invite our colleagues in the industry to send us their comments on our definitions, as well as any additional terms they would like to see included in the glossary, so that we can reach a consensus on a consistent, common language relating to technology assisted review. Comments can be sent to us at mrgrossman@wlrk.com and gvcormac@uwaterloo.ca.”

Live links, with a Table of Contents, in a (hopefully soon) next iteration will definitely make this guide even more useful.  Nonetheless, it’s a great resource for those of us that have bandied around these terms for some time.

So, what do you think?  Will this glossary help educate the industry and help standardize use of the terms?  Or will it lead to one big “Confusion Matrix”? (sorry, I couldn’t resist)  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Sedona Conference Updates Guide for Judges – eDiscovery Trends

Last year, The Sedona Conference® made a public comments version of the Cooperation Proclamation: Resources for the Judiciary available on the Sedona Conference website. The Resources for the Judiciary document aims to provide judges with a foundation for creating a collaborative and non-adversarial approach to managing eDiscovery.  Now, its Judicial Resources guide has been updated and the free version is available on the Sedona Conference web site.

In addition to a Preface that outlines the Vision, Mission and Goal for the Resources, the guide includes the following sections:

  • I. Introduction: Discusses the difference between “active case management” (proactive) and “discovery management” (reactive), while urging judges to take an active case management model approach;
  • II. Review of Existing Literature on E-Discovery for Judges: A compilation of various resources for judges to become more familiar with eDiscovery, including everything from the 2006 amendments to the Federal Rules to local rules and pilot projects, such as the Model Order for Patent eDiscovery;
  • III. General Recommendations for Judges: A list of seven recommendations for how judges handle eDiscovery issues in their cases, along with supporting information and resources;
  • IV. The Stages of Litigation from a Judge’s Perspective: Sections for twenty different stages, ranging from Preservation to Post-Judgment Costs.

Creation of the new edition was led by senior editors Ronald Hedges (a retired magistrate judge from the U.S. District Court for the District of New Jersey, now a consultant) and Kenneth Withers (Sedona’s director of judicial education) with Karen Van Allen serving as editorial coordinator.  Judicial Reviewers were:

  • Hon. Ralph Artigliere, 10th Judicial Circuit Court, Florida (ret.)
  • Hon. John M. Facciola, U.S. Magistrate Judge, District of the District of Columbia
  • Hon. Peter Flynn, Circuit Court of Cook County, Illinois
  • Hon. Elizabeth D. Laporte, U.S. Magistrate Judge, Northern District of California
  • Hon. Elizabeth M. Schwabedissen, General Magistrate, 11th Judicial Circuit Court, Florida
  • Hon. Craig B. Shaffer, U.S. Magistrate Judge, District of Colorado

Apparently, the web site will also have a special password-protected collaboration area exclusively for judges to comment, suggest resources or even submit sample orders, enabling those judges to freely communicate without concern about eavesdropping from outside parties.  And, as always, to submit a public comment, you can download a public comment form here, complete it and fax (yes, fax) it to The Sedona Conference® at 928-284-4240.  You can also email a general comment to them at tsc@sedona.net.

So, what do you think?  Will this guide make for a smoother discovery 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Perspective on the HP/Autonomy Fiasco – eDiscovery Trends

It’s not exactly Dr. Evil’s $100 billion, but it’s not “chump change” either…

By now, you’ve probably heard that, on Tuesday, Hewlett-Packard (HP) took an $8.8 billion charge resulting from its acquisition of Autonomy back in 2011, one of the largest acquisitions in the eDiscovery industry in history.  HP has called on US and British authorities to investigate what it called “serious accounting improprieties, disclosure failures and outright misrepresentations at Autonomy” before the acquisition in a developing scandal that also involves accounting firms Deloitte and KPMG, who audited the sale.

In a statement, HP said “HP is extremely disappointed to find that some former members of Autonomy’s management team used accounting improprieties, misrepresentations, and disclosure failures to inflate the underlying financial metrics of the company, prior to Autonomy’s acquisition by HP”.  The deal was brokered by former HP CEO Leo Apotheker and Autonomy founder Mike Lynch – both are no longer with HP.

Some notable stats:

  • The $8.8 billion charge is 85% of the widely reported $10.3 billion purchase price that HP paid for Autonomy in October 2011;
  • On Tuesday, HP’s shares traded down $1.74, or 13%, at $11.56 in morning trading – just after the open, they hit $11.35, the lowest level since 2002;
  • HP’s net loss for the fiscal fourth quarter (which ended Oct. 31) was $6.85 billion, compared with net income of $239 million in the same period in 2011.

For his part, Lynch fiercely denies allegations that Autonomy falsified its financial statements. In a statement to the Guardian on Tuesday, his spokesperson said: “HP has made a series of allegations against some unspecified former members of Autonomy Corporation PLC’s senior management team. The former management team of Autonomy was shocked to see this statement today, and flatly rejects these allegations, which are false…HP’s due diligence review was intensive, overseen on behalf of HP by KPMG, Barclays and Perella Weinberg. HP’s senior management has also been closely involved with running Autonomy for the past year…It took 10 years to build Autonomy’s industry-leading technology and it is sad to see how it has been mismanaged since its acquisition by HP.”

Additional articles discussing the HP/Autonomy controversy are available here, here, here and here.  As for what will become of HP and its Autonomy division (that previously acquired Zantaz, Interwoven and Iron Mountain, among others), remains to be seen.  Expect a long legal battle.

So, what do you think?  How will this affect future acquisitions of eDiscovery companies?  Will we all be working with the HP/Autonomy public domain data set someday?  😉  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Email Metadata Leads to Petraeus Resignation – eDiscovery Trends

As reported on by Megan Garber of The Atlantic, email location data led FBI investigators to discover CIA director David Petraeus’ affair with Paula Broadwell that led to his resignation.  The irony is that FBI investigators weren’t aware of, or looking for, information regarding the affair.  Here’s what happened, according to the article.

“Sometime in May, The New York Times reports, Broadwell apparently began sending emails to Jill Kelley, the Petraeus acquaintance (her precise connection to the family isn’t yet fully clear) — and those emails were “harassing,” according to Kelley. The messages were apparently sent from an anonymous (or, at least, pseudonymous) account. Kelley reported those emails to the FBI, which launched an investigation — not into Petraeus, but into the harassing emails.”

“From there, the dominoes began to fall. And they were helped along by the rich data that email providers include in every message they send and deliver — even on behalf of its pseudonymous users. Using the ‘metadata footprints left by the emails,’ the Wall Street Journal reports, ‘FBI agents were able to determine what locations they were sent from. They matched the places, including hotels, where Ms. Broadwell was during the times the emails were sent.’ From there, ‘FBI agents and federal prosecutors used the information as probable cause to seek a warrant to monitor Ms. Broadwell’s email accounts.’”

Once the investigators received that warrant, they “learned that Ms. Broadwell and Mr. Petraeus had set up private Gmail accounts to use for their communications, which included explicit details of a sexual nature, according to U.S. officials. But because Mr. Petraeus used a pseudonym, agents doing the monitoring didn’t immediately uncover that he was the one communicating with Ms. Broadwell.”

Ultimately, monitoring of Ms. Broadwell’s emails identified the link to Mr. Petraeus and the investigation escalated, despite the fact that the investigators “never monitored Mr. Petraeus’s email accounts”.

Needless to say, if the Director of the CIA can be tripped up by email metadata from an account other than his own, it could happen to anyone.  It certainly gives you an idea of the type of information that is discoverable not just from opposing parties, but third parties as well.

So, what do you think?  Have you ever identified additional sources of data through discovery of email metadata?  Please share any comments you might have or if you’d like to know more about a particular topic.

Thanks to Perry Segal’s e-Discovery Insights blog for the tip on this story!

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