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Information Governance

Once Again, It’s Time to Nominate Your Favorite Law Blog – eDiscovery Trends
It’s that time of year!  If you have a favorite law blog (or “blawg”, get it?), now is the time to nominate it for recognition in the ABA Journal 8th Annual Blawg 100.

On their Blawg 100 Amici page, you can complete the form to identify yourself, your employer or law school, your city and email address, the URL of the blog you wish to nominate, a link to a great 2013 post from the blog 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 ABA Journal can use your name and comment in their coverage and, if you follow the blogger on Twitter, describe what makes him/her stand out.  You can nominate more than one “blawg”.

ABA Journal notes that they discourage submissions from:

  • Bloggers who nominate their own blogs or nominate blogs to which they have previously contributed posts.
  • Employees of law firms who nominate blogs written by their co-workers.
  • Public relations professionals in the employ of lawyers or law firms who nominate their clients’ blogs.
  • Pairs of bloggers who have clearly entered into a quid pro quo agreement to nominate each other.

Friend-of-the-blawg briefs (i.e., to fill and submit the form) are due by no later than Aug. 8, 2014 to include your nomination.

If you have enjoyed reading eDiscovery Daily over the past year and found our blog to be informative, we would love to be recognized!  Feel free to click on the link here to nominate us!  We appreciate the consideration!

There are other excellent legal technology blogs out there.  Here are a few of our favorites.  Feel free to nominate them too.  🙂

For compilations of eDiscovery news and analysis, I’d also like to recognize PinHawk Law Technology Daily Digest and Complex Discovery as excellent sources for eDiscovery information.

Our hats are off to all of those who provide eDiscovery news and analysis to the industry!  Again, if you would like to nominate any of the blogs (including, of course, eDiscovery Daily), click here.  Deadline is August 8.

So, what do you think?  Do you have a favorite eDiscovery blog or source of information?  Share it with our readers!  And, 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.

Here’s a Chance to Help Shape the Future of Information Governance – eDiscovery Trends

Back on Valentine’s Day, we discussed the launching of the Information Governance Initiative (IGI), a cross-disciplinary consortium and think tank focused on advancing information governance.  The IGI has been busy, with two of its co-chairs, Bennett B. Borden & Jason R. Baron, having written a recent report on predictive analytics for information governance.  Now, the IGI is inviting you to help shape the future of information governance by participating in the IGI’s 2014 Annual Survey.

As noted on their blog, one of the IGI’s major projects this year is their 2014 (and first!) IGI Annual Report, “which will strive to provide much-needed clarity on IG concepts, definitions, markets, and practices”. As part of their research for the report, IGI is conducting a survey of information governance professionals.

As they note on their blog, the survey should take less than 15 minutes to complete (it took me about 10-12 minutes).  The survey asks a number of questions related to your role in information governance and how your organization handles IG, as well as questions regarding the future of information governance.  A link to the survey is available here.

According to Barclay Blair, founder & executive director of IGI, the deadline for taking the survey is June 15, with the results expected to be published on August 4.  Barclay also noted that IGI will also be reporting out on a series of benchmarking interviews that they are conducting right now with working IG practitioners.  Sounds like plenty of information to come!

With information governance clearly identified as the most widely discussed topic at this year’s LegalTech New York show (reflected by our recent thought leader interview series), the efforts of IGI will bear watching.  If you’re an information governance professional and want to make your voice heard, this survey is your chance!

So, what do you think? How does your organization handle information governance? 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.

Plaintiffs Denied Motion to Depose Defendants Regarding ESI Processes Prior to Discovery Requests – eDiscovery Case Law

In Miller v. York Risk Servs. Grp., No. 2:13-cv-1419 JWS (D. Ariz. Apr. 15, 2014), Arizona Senior District Judge John W. Sedwick denied the plaintiffs’ Motion to Compel, requesting permission to conduct depositions in order to determine the defendant’s manner and methods used for storing and maintaining Electronically Stored Information (ESI) prior to submitting their discovery requests.

This action involves two claims against the defendant revolving around workers’ compensation benefits: (1) that the defendant “fraudulently denied [plaintiffs’] workers’ compensation benefits in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”),” and (2) that the defendant aided and abetted the plaintiffs’ employer or former employer with a “breach of its duty of good faith and fair dealing” by denying the claims. In filing the Motion to Compel, the plaintiffs sought a wide ranging inquiry pursuant to Rule 30(b)(6) that would enable them to “tailor their discovery requests to avoid potential disputes over what may be discovered” by deposing the defendant regarding their process of storing and maintaining ESI.

The plaintiffs contended that other courts have “allowed discovery of the very sort they seek” for the purpose of tailoring discovery requests, and cited several appellate decisions to reinforce the contention. While most of the decisions cited by the plaintiffs were from trial courts in other circuits, two of the district court cases cited were within the Ninth Circuit—specifically, Great Am. Ins. Co. v. Vegas Constr. Co., Inc., and Starbucks Corp. v. ADTSec. Services, Inc.

In reviewing these appellate decisions, Judge Sedwick noted that the first cited Ninth Circuit case was inapplicable, as it discussed extensively “a corporation’s duty to identify and prepare a witness for a Rule 30(b)(6) deposition, but nothing in the opinion suggests that the case involved any request to conduct discovery into the manner and methods used by the defendant to store and maintain electronic data.” Regarding the second case, it was noted that the plaintiffs had in fact submitted a substantive request for discovery prior to the court ordered Rule 30(b)(6) deposition, which only attempted to conclude whether the discovery would actually be “unduly burdensome and difficult to retrieve,” as the defendants alleged.

Therefore, Judge Sedwick stated that the cited decisions were inconclusive in determining “whether starting the discovery process with a wide ranging inquiry into the manner and method by which a party stores and manages ESI is a helpful and appropriate approach to obtaining substantive information,” and therefore starting discovery with an inquiry as requested by the plaintiffs “puts the cart before the horse and likely will increase, rather than decrease, discovery disputes.” Hence, the plaintiffs’ Motion to Compel was denied.

So, what do you think? Are there circumstances under which taking depositions prior to discovery would be helpful and appropriate? Should depositions be reserved for resolving discovery disputes, rather than preventing them? 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.

300,000 Visits on eDiscovery Daily! – eDiscovery Milestones

While we haven’t served over 300 billion burgers like McDonald’s, we have provided something to digest each business day for over 43 months.  We’re proud to announce that on Friday, eDiscovery Daily reached the 300,000 visit milestone!  It took us a little over 21 months to reach 100,000 visits and just over 22 months to triple that to 300,000!  On to 500,000!

When we reach key milestones, we like to take a look back at some of the recent stories we’ve covered, so, in case you missed them, here are some recent eDiscovery items of interest from the past six weeks.

After 2,354 Public Comments, One Major Change to the Proposed Federal Rules: By the February 15 deadline for the comment period, no less than 2,354 public comments had been filed regarding the proposed Federal Rules amendments.  Much of the controversy related to Rule 37(e)(1)(B), which included a hotly debated amendment that the court may impose sanctions or order an adverse jury instruction, but only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith,” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.  Since then, Rule 37(e) has been modified, not just once, but twice.

Government Attorneys Have eDiscovery Issues Too: From a confidence standpoint, 73% of respondents feel as confident or more confident in their ability to manage eDiscovery in their cases.  But, 84% of respondents feel somewhat or not at all effective in their agency’s ability to deal with the challenges of eDiscovery and 80% of respondents feel somewhat or not at all confident that if challenged their agency could demonstrate that their ESI was “accurate, accessible, complete and trustworthy.  These and other survey findings are available here.

Cloud Security Fears Diminish With Experience: According to a recent survey of 1,068 companies conducted by RightScale, Inc., concern about cloud security diminish as users gain more experience using cloud-based services.  Learn more about organizations’ cloud habits here.

Daughter’s Facebook Post Voids $80,000 Settlement: As reported a few weeks ago on CNN, the former head of a private preparatory school in Miami lost out an $80,000 discrimination settlement after his daughter boasted about it on Facebook.  That’s why it’s important to think before you hit send.  Even if you’re still in grade school.

New California Proposed Opinion Requires eDiscovery Competence: If a new proposed opinion in California is adopted, attorneys in that state had better be sufficiently skilled in eDiscovery, hire technical consultants or competent counsel that is sufficiently skilled, or decline representation in cases where eDiscovery is required.

Predictive Analytics: It’s Not Just for Review Anymore: One of the most frequently discussed trends in this year’s annual thought leader interviews that we conducted was the application of analytics (including predictive analytics) to Information Governance.  A recent report published in the Richmond Journal of Law & Technology (and discussed here) addresses how analytics can be used to optimize Information Governance.

How Do You Dispose of “Digital Debris”? EDRM Has Answers:  Those answers can be found in a new white paper discussed here.

Also, hackers took Typepad, our platform for hosting the blog, down for a bit.  But, we’re back and better than ever!

Want to get to know some of your litigation support colleagues better?  Leave it to Jane Gennarelli, who has provided profiles here, here, here, here, here and here.

We’ve also had 11 posts about case law, just in the last six weeks (and 296 overall!).  Here is a link to our case law posts.

Every post we have ever published is still available, so the blog has become quite a knowledge base over the last 43+ months.  Sometime this summer, we will publish our 1,000th post!

On behalf of everyone at CloudNine Discovery who has worked on the blog and other publications that have picked up and either linked to or republished our posts, thanks to all of you!  We really appreciate the support!  Now, on to the next topic.  🙂

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

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

Parties’ Failure to Cooperate Sparks Denial of Defendant’s Motion to Reconsider Court Ordered Discovery – eDiscovery Case Law
In Cactus Drilling Co. v. Nat’l Union Fire Ins. Co., 2014 U.S. Dist.. 11-14 (W.D. Okla. April 2, 2014), a largely contentious discovery phase was a major contributor to the decision of Oklahoma Chief District Judge Vicki Miles LaGrange regarding the defendant’s Motion to Reconsider, or Alternately, Motion for Clarification of the Court’s Order.

Discovery issues had plagued this litigation since the beginning, as both parties had repeatedly failed to communicate properly with one another, resulting in multiple interventions by the court. Upon the filing of the defendant’s Motion to Reconsider and a fourth request for continuation of the trial, Judge LaGrange held a hearing which discussed some of the discovery issues, among other things. The defendant stated at this hearing that some of the discovery documents requested by the plaintiffs—hard copies belonging to a key player who was no longer employed by the defendant—may have been inadvertently destroyed.

Pursuant to the hearing, Judge LaGrange instructed the parties to file status reports regarding the status of the discovery issues. While both parties accordingly filed a Joint Status Report soon after the hearing, once again there was a failure to communicate between parties, ultimately leading to the defendant’s filing of the Motion to Reconsider, or Alternately, Motion for Clarification of the Court’s Order.

This motion asked to reconsider an earlier court order that would allow discovery on the company’s document retention policies and litigation hold strategies, in order to investigate the circumstances under which the paper documents of the defendant’s former employee been destroyed. The defendant alleged that the court order was issued prematurely, and that it was irrelevant and not discoverable.

In response to the issue of the order being premature, it was found that this was not the case, as the defendant had known about the plaintiff’s request for this discovery at the time the parties filed the Joint Status Report, in which the defendant requested a ruling on whether they were required to produce discovery on their document retention policies along with a relevant witness for deposition.

The relevancy of the plaintiff’s discovery request was also addressed as such: “Plaintiff is entitled to inquire into the circumstances of the destruction of such relevant files while this litigation is pending, whether defendants took proper precautions, and whether such precautions were actually exercised by defendants’ employees. Thus, clearly a discovery request on defendants’ document retention and litigation hold practices and policies and whether such policies were followed with respect to [the former employee’s files] is relevant and discoverable.”

In conclusion, Judge LaGrange denied the defendant’s Motion to Reconsider, and ordered both parties once again to attempt to resolve the issues surrounding discovery and the defendant’s document retention and litigation hold practices in good faith.

So, what do you think? Should a party have the right to request discovery on document retention policies when relevant discovery documents are not obtainable? Should the cooperation—or lack thereof—between parties affect the court’s ruling on various motions? 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 Do You Dispose of “Digital Debris”? EDRM Has Answers – eDiscovery Best Practices

In 2012, the Compliance, Governance and Oversight Council (CGOC) released survey results indicating that nearly 70 percent of organizational information has no legal or business value and noted that, for most organizations, information volume doubles every 18-24 months.  Now, EDRM, in collaboration with the CGOC, has released a new white paper to address growing concerns related to the amount and substance of electronic data currently created and stored.

Announced last week, the white paper, titled Disposing of Digital Debris – Information Governance Strategy and Practice in Action, is designed to provide readers with the strategy and practice they need to achieve disposal of their unnecessary electronic information.  Why is this issue such a major problem in organizations today?  Consider the following:

  • Every day, we create 2.5 quintillion bytes of data and rising;
  • Storage locations can include on-site, off-site, cloud and Software as a Service (SaaS) deployments and appear in a variety of hybrid configurations;
  • Social media platforms such as Twitter, Instagram or Facebook combine large volumes of data with high intensity social habits, creating large volumes of potentially sensitive data;
  • IT infrastructure, burdened by the storage and management of excessive data, shoulders high hidden costs that impact its budget and degrade application performance and operations;
  • eDiscovery processes result in the preservation of large amounts of data, including many duplicates that will be re-used as evidence in future litigation if not properly destroyed;
  • New regulatory requirements such as Dodd-Frank and privacy regulations increase the cost and risk of unnecessarily managing data debris.

With these factors contributing to the problem and nearly 70 percent of organizational data having no legal or business value, the need to identify and dispose of digital debris is clear.  To address the issue, the white paper is organized into three sections:

  1. The Problem – Defining and Identifying Digital Debris: This section discusses the tendency of IT departments to “keep everything forever”, provides several examples of digital debris and discusses the advantages of – and roadblocks to – disposal.
  2. The Strategy – Utilizing the Information Governance Reference Model (IGRM) Framework to Define and Design a Successful Information Governance Program: This section reviews the IGRM model (previously covered on this blog here) and covers a three-step approach to effectively begin to reduce both the risk and overhead costs associated with risky retention of digital debris.
  3. The Practice – Implementing the Strategy with Success: This section discusses and provides graphics to illustrate best practices for integrating people, process and technology and the benefit of a holistic approach involving all stakeholders, including Records management, Legal, Line of business users, Privacy and security and IT.

The white paper is available here and can be viewed online or downloaded as a PDF file.

So, what do you think? Does your organization have an effective program in place to eliminate “digital debris”? 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.

Predictive Analytics: It’s Not Just for Review Anymore – eDiscovery Trends

One of the most frequently discussed trends in this year’s annual thought leader interviews that we conducted was the application of analytics (including predictive analytics) to Information Governance.  A recent report published in the Richmond Journal of Law & Technology addresses how analytics can be used to optimize Information Governance.

Written by Bennett B. Borden & Jason R. Baron (who was one of our thought leaders discussing that very topic), Finding the Signal in the Noise: Information Governance, Analytics, and the Future of Legal Practice, 20 RICH. J.L. & TECH. 7 (2014) is written for those who are not necessarily experts in the field.  It provides a synopsis of why and how predictive coding first emerged in eDiscovery and defines important terms related to the topic, then discusses aspects of an information governance program where application of predictive coding and related analytical techniques is most useful. Most notably, the authors provide a few “early” examples of the use of advanced analytics, like predictive coding, for non-litigation contexts to illustrate the possibilities for applying the technology.  Here is a high-level breakdown of the report:

Introduction (pages 1-3): Provides a high-level introduction of the topics to be discussed.

A. The Path to Da Silva Moore (pages 3-14): Provides important background to the evolution of managing electronically stored information (ESI) and predictive coding (fittingly, it begins with the words “In the beginning”).  Starting on page 9, the authors discuss “The Da Silva Moore Precedent”, providing a detailed account of the Da Silva Moore case (our post here summarizes our coverage of the case) and also references other cases, as well: In re Actos (Pioglitazone) Products Liability Litigation, Global Aerospace Inc., et al, v. Landow Aviation, L.P., Kleen Products v. Packaging Corp. of America, EORHB, Inc. v. HOA Holdings and In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation.  Clearly, the past couple of years have provided several precedents for the use of predictive coding in litigation.

B. Information Governance and Analytics in the Era of Big Data (pages 15-20): This section provides definitions and important context for terms such as “big data”, “analytics” and “Information Governance”.  It’s important to have the background on these concepts before launching into how analytics can be applied to optimize Information Governance.

C. Applying the Lessons of E-Discovery In Using Analytics for Optimal Information Governance: Some Examples (pages 21-31): With the background of sections A and B under your belt, the heart of the report then gets into the actual application of analytics in different scenarios, using “True Life Examples” that are “’ripped from’ the pages of the author’s legal experience, without embellishment”.  These examples where analytics are used include:

  • A corporate client is being sued by a former employee in a whistleblower qui tam action;
  • A highly regulated manufacturing client decided to outsource the function of safety testing some of its products and a director of the department whose function was being outsourced, despite being offered a generous severance package, demanded four times the severance amount and threatened to go to the company’s regulator with a list of ten supposed major violations that he described in the email if he did not receive what he was asking for.
  • A major company received a whistleblower letter from a reputable third party alleging that several senior personnel were involved with an elaborate kickback scheme that also involved FCPA violations.
  • An acquisition agreement between parties contained a provision such that if the disclosures made by the target were found to be off by a certain margin within thirty days of the acquisition, the purchase price would be adjusted.

In each case, the use of analytics either resulted in a quick settlement, proved the alleged violations to be unfounded, or resulted in an appropriate adjustment in the purchase price of the acquired company.  These real world examples truly illustrate how analytics can be applied beyond the document review stage of eDiscovery.

Conclusion (pages 31-32): While noting that the authors’ intent was to “merely scratch the surface” of the topic, they offer some predictions for the end of the decade and note “expected demand on the part of corporate clients for lawyers to be familiar with state of the art practices in the information governance space”.  In other words, your clients are going to expect you to understand this.

The report is an easy read, even for novices to the technology, and is a must-read for anyone looking to understand more about applying analytics to Information Governance.  Bennett and Jason are both with Drinker Biddle & Reath LLP and are also co-chairs of the Information Governance Initiative (here is our recent blog post about IGI).

So, what do you think? Has your organization applied analytics to big data to reduce or eliminate litigation costs? 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.

Ralph Losey of Jackson Lewis, LLP – eDiscovery Trends

This is the tenth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Ralph Losey. Ralph is an attorney in private practice with the law firm of Jackson Lewis, LLP, where he is a Shareholder and the firm’s National e-Discovery Counsel. Ralph is also a prolific author of eDiscovery books and articles, the principal author and publisher of the popular e-Discovery Team® Blog, founder and owner of an online training program, e-Discovery Team Training, with attorney and technical students all over the world, founder of the new Electronic Discovery Best Practices (EDBP) lawyer-centric work flow model. Ralph is also the publisher of LegalSearchScience.com and PreSuit.com on predictive coding methods and applications.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

The presentation that I did at the show was called the “John Henry moment”, and I presented with Cliff Dutton, who is a technology expert at AIG (not an attorney, but an expert with technical processes in electronic discovery). The other panelist was Jason Baron (whose own thought leader interview from last week can be found here).  Cliff, Jason and I were examining at LegalTech what comes next after predictive coding.  What is the inevitable direction that technology is taking?  That was really the theme behind the “John Henry moment”.  A similar question was asked by other panels, but, and of course I’m prejudiced, I think our panel had some particularly good, unique insights.

Before I get into the answer that emerged from our panel, I will say that other panels were focusing on other parts of the technology world.  They were talking about things like data breach and privacy – those are two big issues that we’ve seen in the past, but they seem to be emerging even stronger than before and were big issues in the keynote speech.  It appears to be a surprise to some people that there is crime on the Internet.  Many of us are quite aware of that – I had to change my credit card just a couple of months ago.  So, data breaches, either on purpose by a hacker or unintentional through negligence, and data privacy are certainly big issues.

These were not the issues that Jason, Cliff and I talked about.  Instead, we were talking about the advancement into the second machine age.  This is something that has been discussed by the New York Times and also in a best-selling book called The Second Machine Age: Work, Progress, and Prosperity in a Time of Brilliant Technologies.  It has to do with the application of ever more sophisticated computer algorithms that allow us to replicate what the human mind is capable of doing and to automate not just manual labor, but automate the mental labor of mankind.  Of course, what we’re focused on is its application to lawyers – what we lawyers do that can now be improved, enhanced and automated.

Now, in the past, the big discussion has been on predictive coding and this is certainly an example of the application of advanced computers and what is being called “analytics” –  taking big data and understanding the implications of big data.  Examples outside the law include Netflix, that takes your viewing history and tells you about a new movie they have that you’re going to like, and Amazon who takes you buying history and suggests books that you’re going to like.  They’ve both analyzed your data.  So, what we were discussing is how this concept will impact the law.  That’s really an important topic that our panel addressed that I had an opportunity to follow up on recently in my blog (that parodied the movie Minority Report, which had something called “pre-crime”), called “pre-suit”.  Not “pre-crime”, but “pre-suit”.  I’ve already (surprisingly) been able to get the URL for presuit.com and it discusses corporate counsel using what I call “smart data” to predict and prevent litigation before it happens.  That’s what our panel discussed and I think that’s really the next big thing (with all due respect to people that are focused by privacy and data breach issues).  So, I think the next big thing is to apply data analytics and the latest advancements in artificial intelligence to get a much better handle and control on litigation than we have today.

The idea behind “pre-suit” is essentially to win your next lawsuit before it’s even filed.  Jason Baron also recently wrote an article about it in Law Technology News (Escape From the Island of E-Discovery), which I didn’t know about when I wrote my article – he showed it to me the day of our panel session.  He talks about three examples of using data analytics for something other than predictive coding: the first two are data remediation for information governance purposes and records classification to, for example, classify and file your emails for you.  The third one he calls “bad conduct detection” – I call it the use of smart data to predict and prevent a cause of action from occurring – basically, when employees within your company are doing something that could be a basis for a lawsuit.

He wrote about it in the article and, independently, I had the same idea I (at least I think I did – Jason is alleged to have mind control abilities!).  In my blog, I wrote about how this “pre-suit” concept will work and this isn’t based on science fiction, it’s based on technology that’s available today.  We have the technology to detect patterns of wrongful activity that are there.  In corporate email and text messages, we can detect when an employee may be harassing another employee.  It’s far more than just looking for certain words that should never be said in email, but also patterns so you can bring in an employee for counseling before damage is done, before a reputation is ruined or a lot of emotional harm happens and way before a complaint is filed by the victim.

So, this is really the next big thing – to stop lawsuits before they mature.  In other words, why should we depend on plaintiff’s counsel to come to the door of corporate counsel to let them know that they’ve found this group of employees in the company that have been discriminated against or are receiving wrongful treatment?  Find about it in advance and fix it yourself – much more effectively and much cheaper.  It’s essentially good citizenship for corporations to police their own activities rather than having outside attorneys find it and air their “dirty laundry” in a courtroom.  That’s the vision that our panel came articulated and that I think is the next big thing.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I wrote a blog post about it and I did predict that they would pass this year, but the level of controversy seems to be heating up at the last minute.  The commentary that Judge Scheindlin filed with the Rules Committee is just one indication that it’s escalating.  It’s very intense and it may be a closer question than I thought.  As I’ve written about it, my view is that some of these changes may not even be constitutional and that’s something that former Judge Ron Hedges believes – that some of the rules have gone too far in violating separation of powers, that the rules are going into substantive law.  I’m concerned how political the Federal Rules have become.  The judicial branch is supposed to be a separate branch of government, not part of the legislative branch.  So, I must say that I share Judge Hedges’ concerns on that and, even though I still think it will be approved, I am not pleased by how politicized the whole process has become..

Having said all of that, the reason that I’m not having the same emotional reaction that Judge Scheindlin and other commentators have had – on both the right and the left (frankly, this has become a liberal vs. conservative issue) – is that I don’t think it will have the profound impact that some people fear.  Ultimately, rules changes don’t change things as much as people expect them to do so.  Certainly, the 2006 rules changes didn’t lead to a huge impact, and regardless of what gets passed here, I don’t think it will have a huge impact either.  There is really a cultural change that is needed for eDiscovery to work right, rather than creating yet more rules that people can misunderstand and argue about.  In my opinion, we’re going to get more of a change by focusing on education, doing the kind of thing that you do, bringing the word to people so that they can understand what’s going on.  I think that does more good than creating more rules, especially when they’re particularly complicated rules.

One good result of the new rules is the emphasis on proportionality and cooperation.  I think those are good things, it doesn’t hurt to have them in the rules and that will encourage people to do what the rules already require – cooperate with each other and always have proportionality in mind.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

You pointed out the resources that are already there.  Do we need more and better resources?  I suppose.  And, I’ll still continue to work on that as, I’m sure, the other educational leaders that you’ve mentioned will do as well.  I think one of the most important new efforts to come on the scene is the one started by another Losey, Adam Losey, and his foundation IT-Lex.  That’s an educational foundation effort that is more oriented toward younger lawyers.  That is ultimately the answer.  Old fogies like me are going to retire and they just don’t want to learn.  They’re closed minded and, frankly, they’re getting more and more irrelevant every day.  We need to focus on the next generation and I’m really proud of Adam in how he’s doing a good job of carrying the torch on that.

I’m seeing this in my own family – first with my son Adam at Foley and now with his wife, my daughter-in-law, Catherine Losey who is now at Littler doing eDiscovery.  I can tell you that the next generation gets it and the hope is in the future.  I think you have to take a longer term view of things.  I tried cajoling lawyers my age into doing it and it doesn’t work, honestly.  In the book that I mentioned before, The Second Machine Age, delays like this in learning how to use technology have always been.  This is nothing new and it’s not unique to the legal industry.  It typically takes ten to twenty years for business or any general cultural activity to adapt to the new technology and figure out how to use it.

For people like me, it has been an exercise in patience because I’m ready to do everything yesterday.  But, the reality is that it will catch up, it’s starting to catch up and those of us who do know the technology needn’t despair that 98% of the bar still doesn’t know what we do.  That’s OK.  The number of people who do know will grow rapidly, particularly as people retire.  There are plenty of smart people my age who don’t get it, but they understand that they don’t get it, so they ask me to do it or they ask someone else who does get it to do it.  That is a fundamental ethical responsibility that good lawyers get.  Eventually, you’re going to have a field of specialists that focus on eDiscovery, especially complex artificial intelligence and other technology.  That’s how we will get at the truth.  There will be a specialty bar that other lawyers use who don’t do that.  But, right now, we’re still in a shakedown period.  We may see things speed up because of more eDiscovery malpractice cases – there have already been a few and there will be more.  And, competition will force the people that don’t get it out and allow opportunities for the next generation and the few in my generation that do get it.  Overall, I’m optimistic, because I don’t think there’s anything unique about lawyers to keep them from getting it; there are plenty of younger lawyers that do get it.  They are our future and I’m optimistic for that future.

What are you working on that you’d like our readers to know about?

Well, my online training program (e-Discovery Team Training) is still alive and well.  An encouraging sign is that we’re starting to have smaller firms signing up four, five or even six attorneys and paralegals.  So, I will keep eDiscovery Team Training in place as a cheaper, intro level, A to Z, course about eDiscovery for people that can’t afford to take the more expensive courses.  It’s an inexpensive alternative for people who do want to learn, that want to remain relevant and that understand that, in today’s world, it’s all about constant training, re-training and learning.

As for the more advanced training that I provide, I find that you can’t teach predictive coding just by writing and I’ve written maybe 35 essays on the subject.  I find it’s much more effective for me to teach it the good-old fashioned way – the way that Abe Lincoln learned law – with a one-on-one apprenticeship.  In other words, I show my attorneys by doing.  With something as complicated as predictive coding, coming in and consulting and actually helping lawyers do it is more effective than writing about it.  But, with the simple intros to eDiscovery, the writing is still effective, so I’ll keep on doing that too. I’ll keep writing on the advanced topics too, but with the understanding that many of the methods of predictive coding are too complex to teach my words alone.

Thanks, Ralph, 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.

Jason R. Baron of Drinker Biddle & Reath LLP – eDiscovery Trends

This is the eighth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Jason R. Baron.  An internationally recognized speaker and author on the preservation of electronic documents, Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice.  Jason previously served as Director of Litigation for the U.S. National Archives and Records Administration (NARA) and as trial lawyer and senior counsel at the Department of Justice.  He was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.  He also founded the international DESI (Discovery of Electronically Stored Information) workshop series, bringing together lawyers and academics to discuss cutting-edge issues in eDiscovery.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

I think that it was clear, not only to me but to many other attendees that I spoke with at the show, that there was a greater focus and attention this year on Information Governance.  It’s the new black.  You saw that especially in the educational sessions.  Now my good friend Ralph Losey, in a recent posting on his brillilant blog e-Discovery Team®, referred in passing to the topic of Information Governance as “boring” – however, what I think he meant to say is that if Information Governance is simply viewed as the current buzzword for what constitutes electronic recordkeeping best practices, that would be unfortunate.  It’s a lot more profound than that.

In my view, the types of analytics that we use in eDiscovery for predictive coding have an important role in Information Governance as well.  The research that I had some role in, coming out of the TREC Legal Track, and subsequent articles by Maura Grossman, Patrick Oot and others, have all helped to crystallize what constitute best practices in the eDiscovery search and document review space.  But the knowledge that we have gained about analytics in these various research studies, as validated in recent court opinions like Da Silva Moore, are applicable to a much broader application than merely in eDiscovery practice.

That is to say, we can all be smarter about using analytical methods to solve lots of legal issues which arise outside of the narrow band of eDiscovery but inside the broader realm of Information Governance.  Ralph discussed this in a recent blog when he referred to the idea of using “presuit” analytics to predict and prevent lawsuits from happening in the first place.  Ralph’s column shows that he certainly gets it, and that I can count him in as a true believer in pre-litigation analytics being accomplished to lower corporate overall risk including the prevention of potential lawsuits.

So, the hottest topic at LegalTech was Information Governance and, as part of that discussion, a conversation about what best practices are from a technology perspective in the space.  What other trends  out there were noted?

Other themes at LegalTech that reflect trends specifically affecting legal and eDiscovery practice: First, it’s clear to us that the cloud is becoming a dominant paradigm for the storage of big data, and that we need to continue to understand how eDiscovery in particular can be optimized in cloud environments.  Second, there is increased attention to the notion of technological competence, in light of the amendments to the Model professional rules of responsibility, including the comment to Rule 1 about the need for attorneys to be technologically competent in keeping up with the law.  That comment certainly means something in the eDiscovery space.  Beyond those two, we saw a conversation about new technologies and new ideas that are happening and that need to be absorbed into the practice of law – for example, sessions on drones and sessions that noted the “Internet of things”.  In all sorts of ways, these various discussion threads show that there are a thousand different ways to collect data in the world, all of it is ESI and all of it needs to be factored in when we’re litigating cases and when we’re trying to govern the data that organizations hold.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

Well, my crystal ball tells me not to make predictions.  However, we’re now up to 700 comments in the last week leading up to the February 15, 2014 deadline for responding. [Editor’s note: over 2,000 comments were submitted by the actual deadline.]  Those comments are sharply divided between a community of plaintiffs’ counsel who question the necessity for rules change, and the defense bar, which at least a part of which strongly urges rules changes in the belief that the present rules encourage over-preservation of evidence, and that more in the way of limitations imposed on discovery should now be imposed.  So, that’s the battleground.  I think a good bet in the space is that the language that emerges is going to be much like the amendments currently proposed, but no one knows for sure.

My view about the amendments is a different one than what has been reflected in most of the comments, which I have put forward on behalf of the Information Governance Initiative (see below).  The view that I have is that there are aspects of the rules amendments that can be supported, and certainly Federal Rule of Civil Procedure 1 should be amended to incorporate the notion of parties cooperating.   However, what I believe to be of greater importance than rules change is a recognition on the part of the judiciary as well as all litigants that the volume and complexity of data is doubling every couple of years, and the technological environment is one that should include advanced tools to help remediate the severe challenges we all face in terms of the preservation of ESI. We live in a world of exponential growth of big data and we need to deal with that fact at a more foundational level than with rules changes for litigation.  So, I urge that we pay attention to both best practices as a matter of technology in the maintenance of big data in electronic systems, as well as continued education of the bench and bar on how to deal with this new reality — because we’re not going back to the 20th century.  The world of exabytes that we live in is only getting bigger and we have to deal with it.  In my mind, I’m attempting to carve out a middle ground where the rules debate is not as draconian or as starkly imagined as parties would reflect in the comments, but rather that we need to step back and ask more fundamental questions.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

Every survey that I know of drives this point home, that there is a “bubble” that some of us practice in where we go from conference to conference, acting as if the 2006 rules amendments are “old hat,” whereas the concept of how to deal with ESI is something new and novel to many others.  So, there is a learning curve that exists where the greater part of the legal community needs to become better versed in the more advanced aspects of eDiscovery.  By now, everyone knows about email potentially being relevant evidence, but not very many people could step through a workflow on predictive coding.  Nor do they necessarily have to do so in a large swath of cases that, candidly, are not a candidate for the most advanced methods.  We need to apply some degree of proportionality analysis to competence and the level of competence that someone needs is dependent on the complexity of the case.  If there is giant litigation that involves billions of documents, then you really need to understand the technical issues at hand, and what questions to ask, to ensure that you’re using the most advanced and efficient search and document review methods.  On the other hand, if you have a case that is only a couple of hundred documents that is in state court or some local jurisdiction, then these more advanced methods are obviously not needed.

So, I think there is an aspect that you’re exactly right to point out, that this is all still new, and we are still maturing in mapping out defensible ediscovery practices in the post-2006 Rules amendment world. But, increasingly, as I have said, we live in a world of digital information.  Whether it’s a family law case involving the exchange of emails or an employment case or even a hit and run case involving GPS data, attorneys are necessarily finding that there cases do indeed involve aspects of discovery where digital or electronic evidence is material and important.  To that extent, all lawyers need to know something about how to preserve, how to collect, how to review and how to produce ESI.  It is clear to me as the years go by that the bar is getting raised in a greater and greater number of cases and that more and more lawyers need to be competent with respect to basic eDiscovery.

What are you working on that you’d like our readers to know about?

Here’s one thing I’m very excited about.  Bennett Borden, who is chair of the Information Governance and eDiscovery practice here at Drinker Biddle, and Barclay Blair, who runs the company ViaLumina and is a thought leader in the Information Governance space, have teamed up to found the Information Governance Initiative and invited me to act as Co-Chair.  The Initiative is a vendor-neutral industry consortium and think tank which has as its mission a goal of fostering discussion about best practices in the Information Governance space.  We have received a large outpouring of goodwill in the form of individuals joining up as members (it’s free to join, by the way), as well as corporate sponsors who have products and services that address IG issues.  And we hope through various platforms that there will be a better smarter dialogue about how to deal with the challenges of big data and Information Governance using many of the analytical methods that I alluded to earlier.  This is exciting to be part of and I’m delighted, after joining Drinker Biddle, to be able to work with Bennett, Barclay, as well as Jay Brudz and others, to attempt to provide some measure of thought leadership in this space.

I should note that there are other great organizations who are also putting on programs, including The Sedona Conference, which has put out a wonderful Commentary on Information Governance spearheaded by Sedona WG1 chair Conor Crowley, that’s freely available for download.  Sedona and ARMA have also teamed up to put on an information governance conference coming up in April 2014 in Florida.  These are all great to advance the ball.    Hopefully, all of our collective efforts will help to jump start serious conversations around optimizing IG.  For my part, I certainly would encourage individuals to look up the IG Initiative and participate in future activities. (See www.iginitiative.com.)

Thanks, Jason, 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.

ASU-Arkfeld eDiscovery and Digital Evidence Conference – eDiscovery Trends

Apparently, next week is the week for eDiscovery conferences.

Last week, I told you about a two-day program being hosted next week in my hometown of Houston by The Sedona Conference®.  Then, on Tuesday, I told you about the Second Annual Electronic Discovery Conference for the Small and Medium Case, hosted by the Levin College of Law at the University of Florida and EDRM also next week.  Now, here is another conference alternative for next week – the Third Annual ASU-Arkfeld eDiscovery and Digital Evidence Conference, hosted by Arizona State University and noted eDiscovery expert Michael Arkfeld.

The conference will be held next week, March 12-14 at the Sandra Day O’Connor College of Law / Armstrong Hall at Arizona State University in Tempe, Arizona.  As the downloadable brochure states, the conference will be “[f]ocusing on the practical issues affecting the discovery and admission of electronic information.  Attendees will be participating with thought leaders and practitioners of eDiscovery on issues impacting legal professionals locally, nationally, and globally.”

The conference will include:

  • noted eDiscovery judges, including Shira A. Scheindlin (who will be giving the keynote address on the first morning), John Facciola, and Craig Shaffer;
  • knowledgeable in-house counsel and eDiscovery specialists, including Robert Amicone from Office Depot, Tom Morrissey from Purdue Pharma and Kit Goetz from Qualcomm;
  • distinguished outside counsel, including Robert Singleton from Squire Sanders, Mark Sidoti from Gibbons, Joy Woller from Lewis Roca Rothgerber, Maura Grossman from Wachtell, and Ariana Tadler from Milberg and;
  • dedicated litigation support professionals including Tom O’Connor, Steven Goldstein, and Anne Kershaw.

Topics run the full range of the eDiscovery life cycle – from information management strategies to dispose of “zombie data” (I like that term) to meet and confer, preservation, collection, data analytics and technology assisted review, production formats, eDiscovery for criminal cases and cross-border issues and eDiscovery project management best practices.  You can earn up to 15 hours of CLE credit for attending.

It’s too late for early bird pricing, but regular attendees can still register prior to the show for $595.  Government, non-profit and paralegal registrants can do so for $345; if you’re a student, it only costs $95 to attend.  Those rates are $695/$395/$115, respectively, if you wait until the day the show starts.  Discounted group rates are also available.  You can register for the conference online here.

So, what do you think? Do you plan to attend the program, or perhaps one of the other programs next week? 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.