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eDiscovery Daily is Two Years Old Today!
 

It’s hard to believe that it has been two years ago today since we launched the eDiscoveryDaily blog.  Now that we’ve hit the “terrible twos”, is the blog going to start going off on rants about various eDiscovery topics, like Will McAvoy in The Newsroom?   Maybe.  Or maybe not.  Wouldn’t that be fun!

As we noted when recently acknowledging our 500th post, we have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 442%!  Our subscriber base has nearly doubled in the last year alone!  We now have nearly seven times the visitors to the site as we did when we first started.  We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  That’s what this blog is all about.  And, in each post, we like to ask for you to “please share any comments you might have or if you’d like to know more about a particular topic”, so we encourage you to do so to make this blog even more useful.

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Unfiltered Orange, Litigation Support Blog.com, Litigation Support Technology & News, Ride the Lightning, InfoGovernance Engagement Area, Learn About E-Discovery, Alltop, Law.com, Justia Blawg Search, Atkinson-Baker (depo.com), ABA Journal, Complex Discovery, Next Generation eDiscovery Law & Tech Blog and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

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!

We talked about best practices for issuing litigation holds and how issuing the litigation hold is just the beginning.

By the way, did you know that if you deleted a photo on Facebook three years ago, it may still be online?

We discussed states (Delaware, Pennsylvania and Florida) that have implemented new rules for eDiscovery in the past few months.

We talked about how to achieve success as a non-attorney in a law firm, providing quality eDiscovery services to your internal “clients” and how to be an eDiscovery consultant, and not just an order taker, for your clients.

We warned you that stop words can stop your searches from being effective, talked about how important it is to test your searches before the meet and confer and discussed the importance of the first 7 to 10 days once litigation hits in addressing eDiscovery issues.

We told you that, sometimes, you may need to collect from custodians that aren’t there, differentiated between quality assurance and quality control and discussed the importance of making sure that file counts add up to what was collected (with an example, no less).

By the way, did you know the number of pages in a gigabyte can vary widely and the same exact content in different file formats can vary by as much as 16 to 20 times in size?

We provided a book review on Zubulake’s e-Discovery and then interviewed the author, Laura Zubulake, as well.

BTW, eDiscovery Daily has had 150 posts related to eDiscovery Case Law since the blog began.  Fifty of them have been in the last six months.

P.S. – We still haven't missed a business day yet without a post.  Yes, we are crazy.

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.

eDiscovery Trends: iDiscovery
 

Yesterday was a day that tech enthusiasts and ordinary people alike had circled on their calendar since it was confirmed as the date of Apple’s press event to unveil the iPhone5. Apple proudly boasted that it had sold 400 million iOS devices by the end of June of this year, which can in part be attributed to the smoothly operating software running on their devices. Advances in mobile high tech have made these portable computers accessible and their presence inescapable even among late adopters. What is simple and intuitive from a user standpoint, however, can prove challenging and fickle to a computer forensics expert.

Richard Lutkus of Law Technology News writes that there are many factors that must be considered when investigating an iOS device, such as “device model, generation, storage capacity, iOS version, iCloud activation status, and passcode protection status. One example of the importance of these identification questions is iCloud, which is Apple's information syncing service. The presence and status of this service may be important because information found on an iOS device could be automatically synced to one or several computers or other iOS devices.”

Lutkus points out that mobile device forensics requires skills that not all computer forensic professionals possess. For example, an important part of the preservation of a mobile device is isolation from all data networks to ensure no changes occur on the device, such as a remote wipe.  A few ways of isolating the hardware include a signal blocking “Faraday” bag, removing the SIM card, or enabling airplane mode. From there, the two methods of imaging an iOS device are logical capture and physical imaging. Lutkus explains, “Logical capture is the preservation of all active (no file fragments or other ephemera) files on a device. This method is similar to an iTunes backup in that it saves the same types of data as iTunes backups. In contrast, physical imaging captures everything that a logical capture does, but includes deleted file fragments, temporary cache files, and other ephemera. Generally, physical imaging is more desirable if it is technically possible. Though slower, this approach is widely accepted, is compatible with most forensic tools, and preserves all data on a device.”

There are other challenges in preserving the data in an iOS device, especially hardware newer than the iPhone 4S and Ipad 3, which include encryption of even unallocated space of memory when a passcode has been used. The quality of data one might expect to find after imaging and decrypting could include: “contacts, call logs, speed dials, voicemail, Bluetooth devices, screenshots, bookmarks, web clips, calendars, messages, email, attachments, internet history, internet cookies, photos, audio recordings, notes, videos, music, app list, keystroke information, GPS coordinates, wi-fi network memberships, user names and passwords, map searches, app-specific data, cell tower information, serial number, device name, device IMEI (international mobile equipment identify number), device serial number, version, and generation, etc.” This type of information can be crucial in the first 7 to 10 days after litigation hits, as we have previously covered here. These devices seem to know so much about us that companies like Apple have had to release statements to state they are not recording and storing your location in response to allegations of privacy invasion. With the number of expected sales of the iPhone5 potentially adding between a quarter and a half percent to America’s GDP, there will be millions more iPhone’s will making their ways into the hands of consumers and eventually, no doubt, into the hands of mobile forensic experts.

So, what do you think? Have mobile computing devices, such as smartphones and tablets, been material to your eDiscovery work? Have other mobile operating systems, such as Blackberry or Android, presented challenges that differ from iOS? 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.

eDiscovery Trends: Nominate Your Favorite Blog by Tomorrow!
 

With back to back weeks of political party conventions leading up to the elections in November, nominations are in the forefront of the minds of many Americans these days (at least those not watching the Giants and Cowboys kicking off the NFL season!).  It’s an important time for our country.  While not quite on a par with the presidential nomination, ABA Journal is currently asking for nominations for the best 100 legal blawgs, er, blogs.

On their Blawg 100 Amici page, you can complete the form to identify yourself, your company or law school, your city and email address, the URL of the blog you wish to nominate and a brief (up to 500 characters) description as to why you’re a fan of the “blawg”.  You’re also asked whether you know the “blawgger” personally (and admonished to “be honest”), whether there are any specific practice areas you’d like to see represented in the “Blawg 100” and whether ABA Journal can use your name and comment in their coverage.  You can nominate more than one “blawg”.

ABA Journal notes that they discourage submissions from:

  • “Blawggers” who nominate their own “blawgs” or “blawgs” to which they have previously contributed posts.
  • Wives and husbands who nominate their spouses’ “blawgs”.
  • Employees of law firms who nominate “blawgs” written by their co-workers.
  • Public relations professionals in the employ of lawyers or law firms who nominate their clients’ “blawgs”.
  • Pairs of “blawggers” who have clearly entered into a gentlemen’s agreement to nominate each other.

Now, you’re probably expecting a pitch to nominate our blog, eDiscoveryDaily, on the page.  Certainly, if you would like to do so, we won’t stop you!  😉

However, we’ll take this opportunity to recognize several of the excellent blogs out there that cover various eDiscovery topics.  Here are some of the best (in no particular order):

If I missed any eDiscovery blogs out there, I apologize (I’m somewhat distracted, Michael Boley just picked off Romo in the Giants/Cowboys game).  For compilations of eDiscovery news and analysis, I’d also like to recognize Law Technology News, PinHawk Law Technology Daily Digest and Unfiltered Orange as excellent sources for eDiscovery information.

Our hats are off to all of those who provide eDiscovery news and analysis to the industry!  If you would like to nominate any of the blogs (including, of course, eDiscoveryDaily), click here.  Deadline is tomorrow, September 7.

So, what do you think?  Do you have a favorite eDiscovery blog or source of information?  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.

eDiscovery Milestones: Our 500th Post!

One thing about being a daily blog is that the posts accumulate more quickly.  As a result, I’m happy to announce that today is our 500th post on eDiscoveryDaily!  In less than two years of existence!

When we launched on September 20, 2010, our goal was to be a daily resource for eDiscovery news and analysis and we have done our best to deliver on that goal.  During that time, we have published 144 posts on eDiscovery Case Law and have identified numerous cases related to Spoliation Claims and Sanctions.   We’ve covered every phase of the EDRM life cycle, including:

We’ve discussed key industry trends in Social Media Technology and Cloud Computing.  We’ve published a number of posts on eDiscovery best practices on topics ranging from Project Management to coordinating eDiscovery within Law Firm Departments to Searching and Outsourcing.  And, a lot more.  Every post we have published is still available on the site for your reference.

Comparing our first three months of existence with our most recent three months, we have seen traffic on our site grow an amazing 442%!  Our subscriber base has nearly doubled in the last year alone!

And, we have you to thank for that!  Thanks for making the eDiscoveryDaily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

I also want to extend a special thanks to Jane Gennarelli, who has provided some wonderful best practice post series on a variety of topics, ranging from project management to coordinating review teams to learning how to be a true eDiscovery consultant instead of an order taker.  Her contributions are always well received and appreciated by the readers – and also especially by me, since I get a day off!

We always end each post with a request: “Please share any comments you might have or if you’d like to know more about a particular topic.”  And, we mean it.  We want to cover the topics you want to hear about, so please let us know.

Tomorrow, we’ll be back with a new, original post.  In the meantime, feel free to click on any of the links above and peruse some of our 499 previous posts.  Maybe you missed some?  😉

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.

eDiscovery Case Law: Apple Wins 1.05 Billion Dollar Verdict Against Samsung
 

Yes, that’s billion, with a “b”.

A jury of nine on Friday found that Samsung infringed all but one of the seven patents at issue in a high-stakes court battle between Apple Inc. and Samsung Electronics Co. The patent that they determined hadn’t infringed was a patent covering the physical design of the iPad. The jurors found all seven of Apple's patents valid—despite Samsung's attempts to have them thrown out. They also determined that Apple didn't violate any of the five patents Samsung asserted in the case.

Apple had been requesting $2.5 billion in damages.  While the award was much less than that, it was still larger than Samsung’s estimates and is among the largest intellectual-property awards on record.  Trial Judge Lucy Koh could also triple the damage award because the jury determined Samsung had acted willfully.

Interviewed after the trial, some of the jurors cited video testimony from Samsung executives and internal emails as key to the verdict.  Jury foreman Velvin Hogan indicated that video testimony from Samsung executives made it "absolutely" clear the infringement was done on purpose.  Another juror, Manuel Ilagan, said , "The e-mails that went back and forth from Samsung execs about the Apple features that they should incorporate into their devices was pretty damning to me."

The verdict was returned Friday afternoon after 22 hours of deliberation, despite the fact that the verdict form contained as many as 700 points the jury (including charges brought against different subsidiaries of the two companies addressing multiple patents and numerous products).

Role of Adverse Inference Sanction

As noted on this blog just a few days ago, Samsung received an adverse inference instruction from California Magistrate Judge Paul S. Grewal just prior to the start of trial as failure to turn “off” the auto-delete function in Samsung’s proprietary “mySingle” email system resulted in spoliation of evidence as potentially responsive emails were deleted after the duty to preserve began.  As a result, Judge Grewal ordered instructions to the jury to indicate that Samsung had failed to preserve evidence and that evidence could be presumed relevant and favorable to Apple.

However, after Samsung accused Apple to have also destroyed and tampered with evidence that could have benefited Samsung in the trial, Judge Lucy Koh decided to modify the “adverse inference” verdict issued for the jury to include instructions that Apple had also failed to preserve evidence.  Therefore, it appears as though the adverse inference instruction was neutralized and did not have a significant impact in the verdict; evidently, enough damning evidence was discovered that doomed Samsung in this case.

Samsung, of course, is expected to appeal.

So, what do you think?  Will this verdict impact discovery in future intellectual property cases?  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.

eDiscovery Case Law: No Kleen Sweep for Technology Assisted Review
 

For much of the year, proponents of predictive coding and other technology assisted review (TAR) concepts have been pointing to three significant cases where the technology based approaches have either been approved or are seriously being considered.  Da Silva Moore v. Publicis Groupe and Global Aerospace v. Landow Aviation are two of the cases, the third one is Kleen Products v. Packaging Corp. of America.  However, in the Kleen case, the parties have now reached an agreement to drop the TAR-based approach, at least for the first request for production.

Background and Debate Regarding Search Approach

On February 21, the plaintiffs asked Magistrate Judge Nan Nolan to require the producing parties to employ a technology assisted review approach (referred to as "content-based advanced analytics," or CBAA) in their production of documents for discovery purposes.

In their filing, the plaintiffs claimed that “[t]he large disparity between the effectiveness of [the computer-assisted coding] methodology and Boolean keyword search methodology demonstrates that Defendants cannot establish that their proposed [keyword] search methodology is reasonable and adequate as they are required.”  Citing studies conducted between 1994 and 2011 claimed to demonstrate the superiority of computer-assisted review over keyword approaches, the plaintiffs claimed that computer-assisted coding retrieved for production “70 percent (worst case) of responsive documents rather than no more than 24 percent (best case) for Defendants’ Boolean, keyword search.”

In their response, the defendants contended that the plaintiffs "provided no legitimate reason that this Court should deviate here from reliable, recognized, and established discovery practices" in favor of their "unproven" CBAA methods. The defendants also emphasized that they have "tested, independently validated, and implemented a search term methodology that is wholly consistent with the case law around the nation and that more than satisfies the ESI production guidelines endorsed by the Seventh Circuit and the Sedona Conference." Having (according to their briefing) already produced more than one million pages of documents using their search methods, the defendants conveyed outrage that the plaintiffs would ask the court to "establish a new and radically different ESI standard for cases in this District."

Stipulation and Order

After “a substantial number of written submissions and oral presentations to the Court” regarding the search technology issue, “in order to narrow the issues, the parties have reached an agreement that will obviate the need for additional evidentiary hearings on the issue of the technology to be used to search for documents responsive to the First Requests.”  That agreement was memorialized this week in the Stipulation and Order Relating to ESI Search (link to stipulation courtesy of Law.com).  As part of that agreement, the plaintiffs have withdrawn their demand that the defendants apply CBAA to the first production request (referred to in the stipulation as the “First Request Corpus”). 

As for productions beyond the First Request Corpus, the plaintiffs also agreed not to “argue or contend” that the defendants should be required to CBAA or “predictive coding” with respect to any requests for production served on any defendant prior to October 1, 2013.  As for requests for production served after October 1, 2013, it was agreed that the parties would “meet and confer regarding the appropriate search methodology to be used for such newly collected documents”, with the ability for either party to file a motion if they can’t agree.  So, there will be no TAR-based approach in the Kleen case, at least until next October.

So, what do you think?  Does this signal a difficulty in obtaining approval for TAR-based approaches?  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.

eDiscovery Trends: Use of Internet-Based Tools, Predictive Coding, Up in 2012, Says ABA

According to a recently released report from the American Bar Association (ABA), use of Internet-based electronic discovery tools and predictive coding has risen in 2012.  The 2012 ABA Legal Technology Survey Report: Litigation and Courtroom Technology (Volume III) discusses the use of technology related to litigation, ranging from hardware used in the courtroom to technology related to eDiscovery and e-filing. It includes a trend report summarizing this year’s notable results and highlighting changes from previous years.

Statistical Highlights

Here are some of the notable stats from the ABA study:

Use of Internet-based eDiscovery and Litigation Support

  • 44% of attorneys whose firm had handled an eDiscovery case said they had used Internet-based eDiscovery tools (up from 31% in 2011 – a 42% rise in usage);
  • In sole practitioner firms, 33% of attorneys said they had used Internet-based eDiscovery tools whereas nearly 67% of attorneys in large firms (500 or more attorneys) indicated they had used those tools;
  • 35% of attorneys said they had used Internet-based litigation support software (up from 24% in 2011 – a 46% rise in usage).

Use of Desktop-based eDiscovery and Litigation Support

  • Use of Desktop-based eDiscovery rose from 46% to 48% (just a 4% rise in usage) and use of Desktop-based Litigation Support remained the same at 46%.

Use of Predictive Coding Technology

  • 23% of those attorneys said they had used predictive coding technology to process or review ESI (up from 15% in 2011 – a 53% rise in usage);
  • Of the firms that have handled an eDiscovery case, only 5% of sole practitioners and only 6% of firms with less than 10 attorneys indicated they had used predictive coding technology whereas nearly 44% of attorneys in large firms said they used predictive coding.

Outsourcing

  • 44% of attorneys surveyed indicated that they outsourced work to eDiscovery consultants and companies (slightly down from 45% in 2011 – a 2% drop);
  • Outsourcing to computer forensics specialists remained unchanged at 42%, according to the survey;
  • On the other hand, 25% of respondents indicated that they outsource to attorneys in other firms (up from 16% in 2011 – a 56% rise!).  Hmmm…

All percentages rounded.

The 2012 ABA Legal Technology Survey Report is comprised of six volumes, with eDiscovery results discussed in Volume III (link above), which can be purchased from the ABA for $350 (or $300 if you’re an ABA member).  If you’re just interested in the trend report, the cost for that is $55 ($45 for ABA members).

So, what do you think?  Any surprises?  Do those numbers reflect your own usage of the technologies and outsourcing patterns?  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.

eDiscovery Trends: The Growth of eDiscovery is Transparent
 

With data in the world doubling every two years or so and the variety of issues that organizations need to address to manage that data from an eDiscovery standpoint, it would probably surprise none of you that the eDiscovery market is growing.  But, do you know how quickly the market is growing?

According to a new market report published by Transparency Market Research (and reported by BetaNews), the global eDiscovery market is expected to rise 275% from 2010 to 2017.  Their report eDiscovery (Software and Service) Market – Global Scenario, Trends, Industry Analysis, Size, Share and Forecast, 2010 – 2017 indicates that the global eDiscovery market was worth $3.6 billion in 2010 and is expected to reach $9.9 billion by 2017, growing at a Compound Annual Growth Rate (CAGR) of 15.4% during that time.  Here are some other noteworthy stats that they report and forecast:

  • The U.S. portion of the eDiscovery market was valued at $3.0 billion in 2010, and is estimated to grow at a CAGR of 13.3% from 2010 to 2017 to reach $7.2 billion by 2017 (240% total growth);
  • The eDiscovery market in the rest of the world was valued at $600 million in 2010, and is estimated to grow at a CAGR of 23.2% from 2010 to 2017 to reach $2.7 billion by 2017 (450% total growth – wow!);
  • Not surprisingly, the U.S. is expected to continue to be the leader in terms of revenue with 73% of global eDiscovery market share in 2017;
  • The report also breaks the market into software based eDiscovery and services based eDiscovery, with the global software based eDiscovery market valued at $1.1 billion in 2010 and expected to grow at a CAGR of 11.5% to reach $2.5 billion by 2017 (227% total growth) and the global services based eDiscovery market valued at $2.5 billion in 2010 and expected to grow at a CAGR of 17.0% to reach $7.4 billion by 2017 (296% total growth).

According to the report, key factors driving the global eDiscovery market include “increasing adoption of predictive coding, growing risk mitigation activities in organizations, increase in criminal prosecutions and civil litigation and growth of record management across various industries”.  They predict that “[i]n the next five years, the e-discovery industry growth will get further support from increasing automatic enterprise information archiving applications, growth in multi-media search for sound and visual data, next generation technology growth for cloud computing i.e. virtualization and increasing involvement of organizations in the social media space.”

The report also discusses topics such as pricing trends, competitor analysis, growth drivers, opportunities and inhibitors and provides company profiles of several big players in the industry.  The 96 page report is available in a single user license for $4,395 up to a corporate license for $10,395.

So, what do you think?  Do those growth numbers 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 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.

eDiscovery Trends: Interview with Laura Zubulake of Zubulake’s e-Discovery, Part 2
 

Last week, we discussed the new book by Laura A. Zubulake, the plaintiff in probably most famous eDiscovery case ever (Zubulake vs. UBS Warburg), entitled Zubulake's e-Discovery: The Untold Story of my Quest for Justice.  I also conducted an interview with Laura last week to get her perspective on the book, including her reasons for writing the book seven years after the case ended and what she expects readers to learn from her story.

The book is the story of the Zubulake case – which resulted in one of the largest jury awards in the US for a single plaintiff in an employment discrimination case – as told by the author, in her words.  As Zubulake notes in the Preface, the book “is written from the plaintiff’s perspective – my perspective. I am a businessperson, not an attorney. The version of events and opinions expressed are portrayed by me from facts and circumstances as I perceived them.”  It’s a “classic David versus Goliath story” describing her multi-year struggle against her former employer – a multi-national financial giant.  The book is available at Amazon and also at CreateSpace.

Our interview with Laura had so much good information in it, we couldn’t fit it all into a single post.  Yesterday was part 1.  Here is the second and final part!

What advice would have for plaintiffs who face a similar situation to the one you faced?

I don’t give advice, and I’ll tell you why.  It’s because every case is different.  And, it’s not just the facts of the case but it’s also the personal lives of the plaintiffs.  So, it’s very difficult for me to do that.  Unless you’re in someone else’s shoes, you really can’t appreciate what they’re going through, so I don’t give advice.

What do you think about the state of eDiscovery today and where do you think that more attention could be paid to the discovery process?

While I don’t work in the industry day-to-day, I read a lot and keep up with the trends and it’s pretty incredible to me how it has changed over the past eight to nine years.  The first opinions in my case were in 2003 and 2004.  Back then, we had so little available with regard to technology and legal guidance.  When I attend a conference like LegalTech, I’m always amazed at the number of vendors and all the technology that’s now offered.  From that standpoint, how it has matured as an industry is a good thing.  However, I do believe that there are still important issues with regard to eDiscovery to be addressed.  When you read surveys and you see how many corporations still have yet to adopt certain aspects of the eDiscovery process, the fact that’s the case raises concern.  Some firms have not implemented litigation holds or document retention policies or an information governance structure to manage their information and you would think by now that a majority of corporations would have adopted something along those lines. 

I guess organizations still think discovery issues and sanctions won’t happen to them.  And, while I recognize the difficulty in a large organization with lots of employees to control everything and everybody, I’m surprised at the number of cases where sanctions occur.  I do read some of the case law and I do “scratch my head” from time to time.  So, I think there are still issues.

Obviously, the hot topic now is predictive coding.  My concern is that people perceive that as the “end all” and the ultimate answer to questions.  I think that processes like predictive coding will certainly help, but I think there’s still something to be said for the “human touch” when it comes to reviewing documents. I think that we’re making progress, but I think there is still more yet to go.

I read in an article that you were considering opening up an eDiscovery consulting practice.  Is that the case and, if so, what will be unique about your practice?

It’s something that I’m considering.  I’ve been working on the book, but I’d like to get back into more of a routine and perhaps focus on education for employees.  When people address eDiscovery issues, they look to implement technology and look to establish retention policies and procedures to implement holds, and that’s all good.  But, at the same time, I think there should be more efforts to educate the employees because they’re the ones who create the electronic documents.  Educate them as to the risks involved and procedures to follow to minimize those risks, such as litigation holds.  I think if you have an educated workforce and they understand that “less is more” when writing electronic documents, that they don’t always have to copy someone or forward something, that they can be more selective in their writing to reduce costs.

I think because of my background and my personal experiences and because I’m not an attorney, I can relate more to the typical worker.  I was on the trading desk and I know the day-to-day stresses of trying to manage email, trying to do the right thing, but also trying to be productive.  I think I can also relate to senior management and advise them that, although they may not recognize the risk, the risk is there.  And, that’s because I’ve been a worker, I’ve been on the trading desk, I’ve been through litigation, I’ve actually reviewed documents and I’ve gone to trial.  So, if you think that not implementing information governance or other eDiscovery policies is a good idea, that’s not the case.  Corporations should see this as an opportunity to manage information and use those management structures for the benefit of their company.

Thanks, Laura, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine 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.

eDiscovery Trends: Interview with Laura Zubulake of Zubulake’s e-Discovery
 

Last week, we discussed the new book by Laura A. Zubulake, the plaintiff in probably most famous eDiscovery case ever (Zubulake vs. UBS Warburg), entitled Zubulake's e-Discovery: The Untold Story of my Quest for Justice.  I also conducted an interview with Laura last week to get her perspective on the book, including her reasons for writing the book seven years after the case ended and what she expects readers to learn from her story.

The book is the story of the Zubulake case – which resulted in one of the largest jury awards in the US for a single plaintiff in an employment discrimination case – as told by the author, in her words.  As Zubulake notes in the Preface, the book “is written from the plaintiff’s perspective – my perspective. I am a businessperson, not an attorney. The version of events and opinions expressed are portrayed by me from facts and circumstances as I perceived them.”  It’s a “classic David versus Goliath story” describing her multi-year struggle against her former employer – a multi-national financial giant.  The book is available at Amazon and also at CreateSpace.

Our interview with Laura had so much good information in it, we couldn’t fit it all into a single post.  So, today is part 1.  Part 2 will be published in the blog tomorrow!

Why did you decide to write the book at this time, seven years after the case was decided?

Actually, I’ve been working on the book for several years and I think it got to the point where I decided either I publish or I don’t publish.  It’s been a work-in-progress for some time and took me longer than I would have expected or liked, but it finally came together.  I probably started it a couple of years after everything was finalized, so it has taken from that point until now to complete it and get it to the point where it is now that I was happy with the results.

What do you expect that those who are familiar with the Zubulake opinions to get out of the book?

Number one, I think it’s really important to note that it’s from the plaintiff’s perspective.  What I find is that most of what you read about in the industry and hear at eDiscovery and legal conferences discuss topics from a defense standpoint.  Most are either a consultant to a defendant or an attorney representing a defendant and I find that the plaintiff’s voice is rarely heard.  And, I felt that I saw things differently from not only the defendant but also my attorneys from time to time because it was my case, I was taking the risks and I had a lot at stake.  So, I think hearing from the plaintiff not just about going through the motions filed and oral arguments and all that but also about life at home and what it’s like dealing with the day-to-day stresses as a plaintiff in a case that lasts three years.  I wanted people to appreciate the difficulty of it. I’m sure most people would assume it’s difficult, but I’m not sure how much people understand about the isolation and how going through litigation can be a lonely place. I write about that in the book.

Number two, a lot has been written about the Zubulake opinions.  Most of it is accurate, but not all of it.  I thought some of the things that were not accurate should be clarified because they were important.  Like, for instance, the role that the adverse inference instruction apparently played to the jury.  I only learned about its role in the verdict during post trial discussions.  Whenever I mention that observation to people, they find that interesting.  I think there are events throughout the litigation that people might learn that what they read in the press is not necessarily 100% accurate.

Also, I think that eDiscovery is still an issue for a lot of medium sized corporations (and probably large corporations, as well).  I think hearing from someone who went through the process would be valuable to them, especially when you consider that I did so without the aid of legal guidelines because there were very few guidelines at the time as I mentioned and also very little technology available.  I had to do it from a very basic standpoint.  So, when you learn anything, it’s really good to learn it from the foundation, from the basics.  From that, you can apply technology and strategies that have been developed over the years.  So, I’m hoping that everybody who reads it will learn something from my experience.

What do you expect that those who are unfamiliar with, or don’t understand the significance of, the Zubulake opinions to get out of the book?

Well, it’s difficult to write a book. When I wrote my first book several years ago about convertible securities, that was what I did for a living and I knew them very well.  I lived this case, so, clearly, I knew it very well.  The problem you have as a writer is not assuming that the reader knows what you know.  So, I tried to write it as clearly as possible and some who are experts in eDiscovery may not find the book to be technical enough, but that was intentional as my goal was to try to appeal to as broad an audience as possible.  That’s always difficult, but that was my goal.  I hope readers learn about the significance of the opinions, learn about the changes in law, and appreciate the plaintiff's viewpoint.

To the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine 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.