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eDiscovery Daily is Three Years Old!

We’ve always been free, now we are three!

It’s hard to believe that it has been three years ago today since we launched the eDiscoveryDaily blog.  We’re past the “terrible twos” and heading towards pre-school.  Before you know it, we’ll be ready to take our driver’s test!

We have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 575%!  Our subscriber base has grown over 50% in the last year alone!  Back in June, we hit over 200,000 visits on the site and now we have over 236,000!

We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful posts about eDiscovery trends, best practices and case law.  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, Ride the Lightning, Litigation Support Guru, Complex Discovery, Bryan College, The Electronic Discovery Reading Room, Litigation Support Today, Alltop, ABA Journal, Litigation Support Blog.com, Litigation Support Technology & News, InfoGovernance Engagement Area, EDD Blog Online, eDiscovery Journal, Learn About E-Discovery, e-Discovery Team ® 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!

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

Rodney Dangerfield might put it this way – “I Tell Ya, Information Governance Gets No Respect”

Is it Time to Ditch the Per Hour Model for Document Review?  Here’s some food for thought.

Is it Possible for a File to be Modified Before it is Created?  Maybe, but here are some mechanisms for avoiding that scenario (here, here, here, here, here and here).  Best of all, they’re free.

Did you know changes to the Federal eDiscovery Rules are coming?  Here’s some more information.

Count Minnesota and Kansas among the states that are also making changes to support eDiscovery.

By the way, since the Electronic Discovery Reference Model (EDRM) annual meeting back in May, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.

When it comes to electronically stored information (ESI), ensuring proper chain of custody tracking is an important part of handling that ESI through the eDiscovery process.

Do you self-collect?  Don’t Forget to Check for Image Only Files!

The Files are Already Electronic, How Hard Can They Be to Load?  A sound process makes it easier.

When you remove a virus from your collection, does it violate your discovery agreement?

Do you think that you’ve read everything there is to read on Technology Assisted Review?  If you missed anything, it’s probably here.

Consider using a “SWOT” analysis or Decision Tree for better eDiscovery planning.

If you’re an eDiscovery professional, here is what you need to know about litigation.

BTW, eDiscovery Daily has had 242 posts related to eDiscovery Case Law since the blog began!  Forty-four of them have been in the last six months.

Our battle cry for next September?  “Four more years!”  🙂

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.

Court Awards Sanctions, But Declines to Order Defendants to Retain an eDiscovery Vendor – Yet – eDiscovery Case Law

In Logtale, Ltd. v. IKOR, Inc., No. C-11-05452 CW (DMR) (N.D. Cal. July 31, 2013), California Magistrate Judge Donna M. Ryu granted the plaintiff’s motion to compel responses to discovery and awarded partial attorney’s fees as a result of defendants’ conduct.  The judge did not grant the plaintiff’s request to order Defendants to retain an eDiscovery vendor to conduct a thorough and adequate search for responsive electronic documents, but did note that the court would do so “if there are continuing problems with their document productions”.

Case Background

The plaintiff, a shareholder in pharmaceutical company IKOR, Inc. (“IKOR”), a filed suit against the defendant and two of its officers, Dr. James Canton and Dr. Ross W. Tye, accusing the defendant of misrepresentations to induce the plaintiff to invest, breach of fiduciary duties, breach of contract, and breach of the implied covenant of good faith and fair dealing. The defendant brought counterclaims for breach of a licensing agreement, theft of intellectual property, and interference with prospective economic advantage.

In the motion to compel, the plaintiff sought to compel the defendants’ compliance with a prior court order to compel the production of all responsive documents as well as to compel production from Dr. Canton, who objected to several of Plaintiff’s discovery requests.  The plaintiff contended that Defendants’ document productions were incomplete and that they “failed to adequately search for all responsive electronic documents”, asserting that all three defendants had produced a total of only 121 emails, 109 of which were communications with the plaintiff (including only three pages in response to a request seeking all documents relating to the defendant’s communications with a company run by three of IKOR’s principals. The “dearth of responsive documents, as well as the lack of emails from at least one key individual”, caused the plaintiff to “raise concerns about the quality of Defendants’ document preservation and collection efforts” and express concerns about possible “evidence spoliation through the deletion of emails”. The plaintiff also contended that Dr. Canton waived his objections by failing to serve a timely response.

Judge’s Ruling

Judge Nyu agreed with the plaintiff’s, noting that “Given the paucity of documents produced by Defendants to date, as well as counsel’s own acknowledgment that Defendants’ productions have been incomplete, the court shares Plaintiff’s concerns about the inadequacy of Defendants’ search for responsive documents. Defense counsel has not been sufficiently proactive in ensuring that his clients are conducting thorough and appropriate document searches, especially in light of obvious gaps and underproduction. Under such circumstances, it is not enough for counsel to simply give instructions to his clients and count on them to fulfill their discovery obligations. The Federal Rules of Civil Procedure place an affirmative obligation on an attorney to ensure that a client’s search for responsive documents and information is complete.”  She also agreed with the plaintiff regarding Dr. Canton’s objections, since he “offered no reason for his late responses”.

Judge Nyu ordered the defendants to “produce all remaining responsive documents by no later than August 26, 2013”, noting that “if there are continuing problems with their document productions, the court will order them to retain the services of an e-discovery vendor”.  Judge Nyu also granted attorney’s fees for the plaintiff’s activities “as a result of Defendants’ conduct”, albeit at a reduced amount of $5,200.

So, what do you think?  Was the sanction warranted?   Should the judge have ordered the defendants to retain an eDiscovery vendor?  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.

Is it OK for an eDiscovery Vendor to Work on Both Sides of a Case? – eDiscovery Best Practices

A few weeks ago, we covered a case where the plaintiffs’ motion to compel the defendant to meet and confer to establish an agreed protocol for implementing the use of predictive coding software was dismissed (without prejudice) after the defendants stated that they were prepared to meet and confer with the plaintiffs and their non-disqualified ESI consultants regarding the defendants’ predictive coding process.  The sticking point may be the ESI consultant in dispute.

As reported by Victor Li in Law Technology News (Judge Refuses to Disqualify EDD Vendor for Playing Both Sides), the defendant in Gordon v. Kaleida Health is taking its fight to the U.S. District Court to have eDiscovery vendor D4 Discovery disqualified from working on the case on behalf of the plaintiffs.  In their initial objection on June 5 and their July 12 filing, Kaleida Health claimed that New York Magistrate Judge Leslie Foschio erred and that D4 should have been disqualified.  As the article notes, “Kaleida’s attorneys at Nixon Peabody had decided to use predictive coding to go through its gigantic cache of 300,000 to 400,000 emails, and had hired D4 (in 2010) to provide scanning and coding services. In 2011, D4 entered into a contract to provide e-discovery consulting services to the plaintiffs. Despite D4’s representation that its consultants had not been involved in the project for Nixon Peabody, Kaleida and Nixon Peabody objected.”

In his ruling, Foschio ruled that there was no conflict of interest for reasons including:

  • D4’s involvement with Kaleida was limited to scanning and coding documents;
  • Kaleida failed to show that D4 had access to any confidential information;
  • D4’s duties to Kaleida were “a routine clerical function” (similar to photocopying documents) while services provided to the plaintiffs were “requiring expert knowledge or skills”;
  • D4 had only been hired to code objective information into assigned fields and was not asked to identify substantive case issues or make subjective decisions about the documents;
  • D4 had actually subcontracted its work for Kaleida to Infovision 21.

Conversely, Kaleida and its attorneys at Nixon Peabody argued that there was a confidential relationship with D4 and that D4 had access to sensitive information, arguing that the plaintiffs’ attorneys at Thomas & Solomon spoke directly to Amir Karahasanovic, the D4 employee who had handled the Kaleida job, violating that confidential relationship.

Li’s article also quotes Electronic Discovery Reference Model (EDRM) co-founder George Socha (a thought leader interviewee on this blog for the past three years), who referenced the EDRM’s Model Code of Conduct (our previous post about it here) as a means to encourage vendors to avoid these types of situations.  In Guideline 9 of Principle 3 (Conflicts of Interest) of the code, it states “Service Providers should not proceed with an engagement where one or more conflicts have been identified until those conflicts have been resolved and the resolution is adequately memorialized to the satisfaction of all parties involved.”

So, what do you think?  Are there some services or situations where it’s acceptable for an eDiscovery provider to work on both sides of a case?  Or should providers only do so if both parties agree?  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.

Adam Losey of IT-Lex.org – eDiscovery Trends, Part 2

During our recently concluded thought leader interview series, I had intended to line up at least one more interview – with Adam Losey, president and editor-in-chief of IT-Lex.org, a technology law not-for-profit educational and literary organization and an attorney at Foley & Lardner LLP.  Adam also served as an adjunct professor at Columbia University, where he taught electronic discovery as part of Columbia’s Information and Digital Resource Management Master’s Program.  Under the idea of “better late than never”, I was finally able to speak to Adam and get his thoughts on various eDiscovery topics.  Enjoy!  🙂

Like his dad, Ralph Losey, Adam has a lot to say.  Yesterday was part 1 of the interview.  Here is part 2.

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

At IT-Lex, we have a cash prize writing competition.  The deadline is May 1.  The winners not only receive $5000, $1000 and $500 cash prizes, but they also will be published in an academic journal that we will begin to publish from the top three articles and other submissions.  The winners also become members of IT-Lex, if they are willing to do the accompanying work.  We have Friends, Partners and Members.  Anybody can be a Friend of IT-Lex for free by registering, which gives you discounts on our conference, on partner products (if they wish to offer them).  You also get the bi-weekly email blast, you can download the journal, and you can watch our videos.  It’s all free.  Our Partners support us financially and they get advertising rights for that.

But, Members are really the core of the organization.  You can’t buy membership, there’s no cost associated with it – you just have to agree to work, have the necessary credentials, and help drive our not-for-profit mission.  There are no honorary memberships.  It includes people like Craig Ball and Jay Grenig at Marquette Law, Maura Grossman, Bill Hamilton, Ron Hedges, Browning Marean, etc.  It’s a bunch of folks that are pretty well established and everybody has agreed to take on a job.  It’s similar to a law review setup – we have managing articles, research and symposium departments.  And, they handle a typical law review process in screening articles that we get for the competition.  But, the big “carrot” that I’m hoping for the winners isn’t the money, it’s receiving an invitation to become a member.  So, they get to join a group of well known, well learned technology lawyers and collaborate academically with them and that should help those winners “kick start” their careers.  You can call us the technology law Kickstarter.  Winners also get to present at our first annual conference, called Innovate, on October 17 and 18 in Orlando.  We’re capping attendance at 200.  There will be quite a group of judges and eDiscovery experts there.  There will be some topics that you don’t typically see at most eDiscovery conferences and the winners of the writing competition will get to present their paper at a panel session.

Thanks, Adam, 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.

 

Adam Losey of IT-Lex.org – eDiscovery Trends, Part 1

During our recently concluded thought leader interview series, I had intended to line up at least one more interview – with Adam Losey, president and editor-in-chief of IT-Lex.org, a technology law not-for-profit educational and literary organization and an attorney at Foley & Lardner LLP.  Adam also served as an adjunct professor at Columbia University, where he taught electronic discovery as part of Columbia’s Information and Digital Resource Management Master’s Program.  Under the idea of “better late than never”, I was finally able to speak to Adam and get his thoughts on various eDiscovery topics.  Enjoy!  🙂

Like his dad, Ralph Losey, Adam has a lot to say.  So, today is part 1 of the interview.  Part 2 will appear tomorrow.

What were your general observations about LTNY this year and how it fits into emerging trends?

Well, I’d never been to a LegalTech before, so I saw it with “virgin eyes”, I guess you could say.  It was very busy and a bit overwhelming, because there is almost no way you can do everything you want to do there.  My overall impression is that it was very well done.  Everybody at ALM in setting it up, all of the booths set up by the vendors – it was just very, very well done and, frankly, reinforces the idea of how much money is in this industry.  That there would be an event of that size and so much of the effort and money put into it was a very palpable representation of the prevalence of the eDiscovery and legal technology industry that I hadn’t seen before.  That’s my general overview.

Specifically, I was a little surprised that a lot more of the vendors don’t turn over the controls to attendees more.  I wrote an article in Law Technology News (10 Tips for LegalTech Vendors, which was discussed in this blog here) and, in it, I discuss how I think that most vendors could use the time more productively by getting you to use the tool that they have instead of talking about it generally.  My real goal for the show was to play with a lot of these tools and my expectation was that everyone would have tools available to “click around” in.  But, I was wrong.  While some vendors did, most did not.  I would like to see more vendors in the future with terminals with something like the Enron data set that is widely used and have the tool set up where you can just “have at it” and play with it.

Of course, I’m a computer dude, I’ve built computers for fun and I did some basic programming, so you can put me in front of something and I can figure it out fairly quickly.  I can understand that it can be dangerous with a lot of folks to “plop” them in front of an interface and expect them to figure it out with no training.  Then again, that should be the goal of anybody’s product, to be so intuitive that even somebody that’s not familiar with it can “plop” in front of it and get going with minimal guidance.  Honestly, I don’t understand how you can make a good decision without test driving; otherwise, if you just listen to a general spiel, everyone will give you the same spiel.  No one is going to sit you down and say “my product is terrible, don’t buy my product”.  You can hear about a great software solution or technology, the PowerPoint looks great, the sales people are wonderful and the price is right, but nobody really vets it thoroughly and you wind up being very disappointed.  The day-to-day end users need to be part of the process in figuring out what they are going to use.

If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?

From reading the news and talking with colleagues, I have a “macro” thought and some “micro” thoughts, which are mostly anecdotal from my personal experience.  My “macro” thought is a continuation of the same, more acceptance rather than introduction of the use of predictive coding (or technology assisted review, computer assisted review, whatever you want to call it).

In addition, I think that there is going to be a lot more emphasis on information security.  Anecdotally, you see a lot of data breaches and people are starting to take it pretty seriously.  I would include information security and privacy in the realm of eDiscovery even though many wouldn’t.  But, you run the risk of stepping on a really big landmine if you don’t have somebody looking out for you on that end, doing everything from making sure you comply with the CAN-SPAM act to making sure you’re meeting the data security requirements in the Gramm-Leach-Bliley Act.  Folks are starting to realize that there are significant financial consequences for not doing it right, such as getting sued.  Here’s a good example.  You’re recording this interview and I gave you consent to do so, but if you were recording it without consent in California, I would have a cause of action against you (according to the California Invasion of Privacy Act) where I could recover a significant amount of money without showing any damages, just because they have a specific statute that allows you to do that.  This is significant, in that if you recorded my call, even if it was illegal, it wouldn’t necessarily make sense for me to sue you over that, if you didn’t do something harmful, like put it on the Internet. Privacy legislation is out there where you don’t need to show any damages to receive compensation.  That makes people pay more attention to it, and motivates the Plaintiffs’ bar to sue.

Anecdotally, I’m seeing the members of the judiciary that aren’t the “eDiscovery rock stars” that we all know becoming a lot more eDiscovery savvy through education and dealing with the issues regularly.  Before, judges weren’t necessarily familiar with eDiscovery issues because those issues hadn’t been argued before them.  Now, I’m seeing more familiarity with it.  I’m also seeing more clients drawing a line on undue burdensomeness, and I am very willing to say to a Judge on behalf of a client  “no, we’re not going to spend $1 million on discovery just because opposing counsel asked for everything under the moon, it’s too burdensome and we’re going to quantify why it is overly burdensome, and ask that if they want the moon they have to pay for it”.  And, the judiciary has, in accordance with the rules, been receptive to those kinds of undue burden arguments.  And, I expect to see more litigation on that, with people “drawing lines in the sand” as to how much they will spend on discovery.

I’m also seeing more state rules changed to accommodate eDiscovery, especially rules that allow “clawback” orders.  Illinois just passed a rule allowing “clawback” orders, similar to the Federal “clawback” provision.  That’s kind of odd, because there is a conflict of law issue there, where the Federal “clawback” rule allows the Federal court to make an order effective against other Federal courts and state courts (the clawback rule in the Federal Rules of evidence was actually implemented by Congress).  The state court equivalent in Illinois allows the state court to make a “clawback” order effective against other courts.  But, a state court can’t do that against a Federal court, but the rule “allows” them to do so.  As a matter of law, I don’t think a state court can place a protective order that would be binding against a Federal court, it runs afoul of a couple hundred years of case law.

Also, Florida adopted new rules, effective last September.  I think it should be a big goal for those drafting state rules to provide clear guidance to trial courts to help them in addressing these issues, because they’re tough issues.  Trial courts deal with a high volume of cases with very limited resources and they can’t take a couple of days to “chew on” eDiscovery textbooks, so I think state courts appreciate clear guidance in state rules and I think you’re going to see a lot more states go the way of Florida and pass eDiscovery rules.  I just had a hearing in Florida that was governed by the new rules – it would have been a lot more problematic without those rules.

More from Adam tomorrow!

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 Daily Is Thirty! (Months Old, That Is)

Thirty months ago yesterday, eDiscovery Daily was launched.  It’s hard to believe that it has been 2 1/2 years since our first three posts that debuted on our first day.  635 posts later, a lot has happened in the industry that we’ve covered.  And, yes we’re still crazy after all these years for committing to a daily post each business day, but we still haven’t missed a business day yet.  Twice a year, we like to take a look back at some of the important stories and topics during that time.  So, here are just a few of the posts over the last six months you may have missed.  Enjoy!

In addition, Jane Gennarelli has been publishing an excellent series to introduce new eDiscovery professionals to the litigation process and litigation terminology.  Here is the latest post, which includes links to the previous twenty one posts.

Thanks for noticing us!  We’ve nearly quadrupled our readership since the first six month period and almost septupled (that’s grown 7 times in size!) our subscriber base since those first six months!  We 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.  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.

George Socha of Socha Consulting LLC – eDiscovery Trends

This is the seventh of the 2013 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends?
  2. If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is George Socha.  A litigator for 16 years, George is President of Socha Consulting LLC, offering services as an electronic discovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support. George has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; in 2011, he and Tom Gelbmann converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and Tom Gelbmann launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle and there are nine active projects with over 300 members from 81 participating organizations.  George has a J.D. for Cornell Law School and a B.A. from the University of Wisconsin – Madison.

What are your general observations about LTNY this year and how it fits into emerging trends?

First of all, this year’s show has a livelier feel to it after a few years where it was feeling a bit flat, no doubt probably due to the economy.  The show has more “spark” to it, which is good not just for this conference but also for the industry and where it’s at and where it’s going.

As for the curriculum, if last year was the year of TAR/CAR/Predictive Coding, so was this year.  It’s also the year of “big data” – whatever “big data” means – and it may or may not be the year of information governance – whatever that means. I think a lot of what we see continues to focus on the same underlining set of issues, that providers are being ever more creative with the packages of the services, software and the capabilities they are offering.  They are trying to figure out how to get those offerings in front of the consuming audience with a compelling story addressing the question of why should you go the extra step and use what they have to offer instead of doing things as you always have done them.  Predictive coding is still more discussion than action, but it is interesting to hear the different opinions.  I moderated a panel with two trial lawyers who are head of their eDiscovery practice groups, who talked about the processes they now go through with clients where discussing predictive coding, to determine whether it’s appropriate for a given case.  The two attorneys were discussing the benefits of CAR, the drawbacks, how much extra it is likely to cost, how much it is likely to save and whether it is likely to even save anything.  This is a discussion that didn’t happen much a year ago and hardly at all two years ago.  To place this in context, however, I have worked with one corporation that has been doing what we now call Computer Assisted Review since 2003 to my direct knowledge and, I am told, since 2000.  CAR is not new in terms of techniques, rather it is new in terms of its packaging and presentation and “productization”.

If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?

If you look at the eDiscovery industry, what the software providers have been developing and the skills and expertise that the service providers and law firms have been building up over the years, they are amassing a powerful set of capabilities that until now has been focused on one pretty narrow set of issues – eDiscovery. I see people starting to take those tools, techniques and experience and beginning to point them in new directions far beyond just eDiscovery, because most of what we deal with in eDiscovery applies in other areas as well.  For example, I see a turn toward broader information governance issues, such as how you get your electronic house in order so that things like eDiscovery become less of a pain point, and how do you do a better job or figuring out what is and what isn’t a record, and how can you get rid of content you been holding onto for years.  These issues extend beyond eDiscovery.  They include what you do to identify compliance challenges, and monitoring whether you are meeting those challenges in an effective fashion.  You could use the same technologies and approaches to improve how you manage your intellectual property assets, essentially pointing the EDRM framework in a new direction.  I think we are on the brink of what could be an enormous of expansion of uses of these capabilities that have been developed in a niche area for some time now.

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

With regard to EDRM, we are approaching our tenth year.  We are looking to that milestone and asking ourselves what EDRM should be today, what it should be tomorrow, and what can we do to improve what we do and how we do it.  We are going to shift to smaller working groups focused on more targeted projects with a shorter delivery cycle.  You can see the beginnings of that in some of our recently published deliverables.

The Computer Assisted Review Reference Model (CARRM) (our blog post about CARRM here) was our first outcome using this process and the second was the EDRM Talent Task Matrix (our blog post about it here) that we published on Monday.  For now, the Talent Task Matrix consists of a diagram that helps explain the concept as well as an accompanying spreadsheet which is available in Excel format (XLSX) or Adobe Acrobat (PDF) format that anyone can download.  We are looking for comments and feedback on the matrix and anticipate that it will fill a need and a gap that are not otherwise being addressed.

With regard to Apersee, providers continue to add information about themselves and we continue to add features.  In the past year, we replaced the search engine with a faceted search mechanism that is simpler to use.  We added an Event Calendar with links to Apersee providers. We added in a Press Release section which works in much the same way.  We’re looking to develop two additional sections which take specific types of content associated with providers and make that available within the application.  The underlining notion is to better help consumers evaluate providers on many dimensions, with an easily followed structure to the content available through the site.

Finally, we added the ability for consumers to submit Special Requests, so that if in looking for a provider and searching through the website they do not find the result they need, they always can submit a special request to us through the click of a button.  We reformulate the message and send it out to about 2,700 people in the provider community.  Unless you choose otherwise, the request is totally anonymous.  Typically, we get back 20 to 40 relevant responses within the first few hours, which usually is more information than the requestor can handle.  The responses from the request system have been very positive.

Thanks, George, 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.

10 Tips for LegalTech Vendors – eDiscovery Best Practices

We’ve mentioned Ralph Losey from Jackson Lewis several times on this blog, including last year’s thought leader interview at LegalTech New York and our interview with him again this year, which will be published on March 1.  We’re discussing another interesting article from Losey, but this time it’s Adam Losey.  His article 10 Tips for LegalTech Vendors, that appeared in Law Technology News has some interesting tips that all vendors (especially those exhibiting at trade shows) should bear in mind.  Here are his tips, along with some of my comments:

  1. Hand over the mouse. As Losey notes, “If you get time in front of potential clients to demonstrate a product, give them the mouse. Let attendees try your tools, with you serving as their guide.”  That sounds great in theory.  It has been my experience, however, that most attendees that stop by and request a demo are reluctant to “drive” right there at the show (believe me, I’ve offered).  Giving them the ability to “test drive” the product for free in their offices after the show tends to get a better response, in my experience.
  2. Add value. Losey advocates more “than just delivering high-quality work product and hyper-responsive client service”.  There are plenty of ways to do this.  For example, helping a client out by directing them to the right vendor that provides a service that you don’t can be just as helpful as the services that you provide for them.
  3. Be humble and keep innovating.  Especially in the ever-changing eDiscovery industry, it’s important to continue to adapt.  That doesn’t just mean offering the latest “buzzword” technology, it also means providing a mechanism for clients to request features and enhancements and addressing those within rollout updates.
  4. Don’t bad-mouth the competition.  Needless to say, you should never do that.  If a client or prospect asks you to compare your solution to another, it’s always best to point out what your solution does well, or what it offers that is unique, not what (you think) the competition does poorly.
  5. Share. In essence, Losey reiterates that here: “Show me why you are the best, not why everyone else is the worst.”  This enables eDiscovery practitioners to draw their own conclusions and share their knowledge with colleagues, which carries more weight than if it came from the vendor, who has a vested interest.
  6. Stop pushing unnecessary services.  Doing so may net a little more business in the short run, but can cost long-term business when the client becomes more educated and realizes that those costs are unnecessary and dumps you.  It’s better to be flexible enough to provide just the services the client needs – they will appreciate it and want to do business with you again.
  7. Leave the legal work to the lawyers.  The vendor’s responsibility is to provide the attorney information regarding the handling of ESI necessary to make an informed decision, not to make that decision for the attorney.
  8. Reach out to new lawyers.  Great point!  As Losey notes, new lawyers are the ones handling eDiscovery at most firms, so reaching out to them as law students is a great way to establish a foothold.
  9. Let me export a privilege log with a click.  I would extend this to production logs, exception logs, etc.  It should be a no-brainer to select the documents you want, the fields you want on the report, click a button and export to Excel.
  10. Let me kick the tires on a case for free.  Clients always understand an application better when working with their own data, as opposed to a demo database.  That’s why (shameless plug warning!) CloudNine offers a 100% No-Risk Trial Offer on OnDemand®, so that our clients can try it with their own data (even as much as 100 GB or more), at no risk.  What better way to get them to try your product?

So, what do you think?  How do your vendors stack up?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. — Happy 84th Birthday, Dad!

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.

Blind Reliance on Vendor for Discovery Results in Sanctions – eDiscovery Case Law

In Peerless Indus., Inc. v. Crimson AV, LLC, No. 1:11-cv-1768 (N.D. Ill. Jan. 8, 2013), Illinois Magistrate Judge Susan E. Cox sanctioned the defendant for a “hands off approach” to discovery by relying on a vendor for conducting the discovery from a closely related non-party to the suit.  The opinion and order can be downloaded here.

The plaintiff sued the defendant and its managing director, Vladimir Gleyzer, in a patent infringement case and filed two motions: 1) a motion to compel the deposition of Tony Jin, and 2) a renewed motion for sanctions.

Motion to Compel Deposition

Jin, the president of China-based Sycamore, was found in a previous ruling to be “principal of both Crimson and Sycamore and that he exercise[d] a considerable amount of financial and managerial control over both companies”, with much of basis for the decision coming from the testimony of Gleyzer himself.  Based on a five-factor test to determine whether Jin was a managing agent, Judge Cox determined that “Mr. Jin appears to satisfy nearly every factor”, granted the plaintiff’s motion to compel the deposition and ordered it to be conducted in the Northern District of Illinois, not in China.

Motion for Sanctions

As for the plaintiff’s renewed motion for sanctions, it was the 30(b)(6) deposition of Gleyzer that made it “clear that defendant did not conduct a reasonable investigation regarding Sycamore’s document production or Sycamore’s document retention for purposes of this litigation.”  Gleyzer “was apparently unable to answer questions about Sycamore’s computer and backup systems, what searches were performed, which employees had relevant information, whether a document hold had been implemented, or whether employees at Sycamore were even contacted regarding plaintiff’s document request.”

So, why was the defendant’s 30(b)(6) deponent unable to answer such basic questions?  As noted in the order, “What is evident from Mr. Gleyzer’s deposition, however, is that defendants took a back seat approach and instead let the process proceed through a vendor.  Mr. Gleyzer testified that there was a process outlined ‘I guess by the vendor’ so the vendor provided instruction to Mr. Jin on how to collect documents.  Crimson, or at least Mr. Gleyzer himself, then had no part in the process of obtaining the requested discovery or of determining how Sycamore managed their documents and what might be relevant to plaintiff’s requests.”

Judge Cox stated: “Such a hands-off approach is insufficient.  Because of the control or ‘close coordination’ between the two companies, defendants were required to produce the requested information.  Defendants cannot place the burden of compliance on an outside vendor and have no knowledge, or claim no control, over the process.”

Sanctions Granted

As a result, Judge Cox granted the motion for sanctions and instructed the plaintiff to “submit a bill of costs for the preparation for the motion of sanctions” by January 31 – which they did, for $16,408.  The defendant has appealed the ruling.

Using vendors for various stages of discovery is common, but that doesn’t excuse the producing party from being fully knowledgeable about the process that took place.  What’s interesting is how the defendant was sunk by its own 30(b)(6) witness, who is also a named party in the suit.  For some best practices regarding preparing your 30(b)(6) witness, click here.

So, what do you think?  Were the sanctions appropriate?  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.

Five Reasons to Outsource Litigation Support – eDiscovery Best Practices

When you’re Jackson Lewis and your firm’s national eDiscovery counsel is noted eDiscovery expert and founder of the new Electronic Discovery Best Practices (EDBP.com) (as well as previous thought leader interviewee on this blog) Ralph Losey, it would make sense that you would want to handle all of your litigation support work in house.  Right?  Wrong.

As Losey writes in the Law Technology News article Five Reasons to Outsource Litigation Support, in June, Jackson Lewis “decided to outsource to a vendor all of our nonlegal electronic data discovery work that our litigation support department had been providing to our clients.”  Losey identifies five reasons “[b]ased on our experience” why your organization should consider outsourcing.

  1. Core Competency: Losey asks the question “Why should you own and operate a nonlegal e-discovery business within your walls under the guise of a litigation support department?”  Collection, forensic analysis, processing, database creation and other related tasks are highly technical, nonlegal tasks that are the core competency of eDiscovery vendors, not law firms.  Losey notes that aside from the outsourcing of document review, the eDiscovery market is not “engaged in the practice of law”.
  2. Complexity: Losey notes that eDiscovery work “is not equivalent to making copies, as some lawyers think, and should not be done in-house, especially when there are so many good companies that specialize in this kind of work.”  Would you go to a general practitioner for heart bypass surgery?  Some tasks are best performed by specialists.
  3. Cost Savings: Keeping a litigation support business staffed with qualified people and current with hardware and software technology is expensive – it also adds considerably to firm overhead.  Losey notes that you “cannot give lawyers yesterday’s technology and expect them to compete.”  Would you give your attorneys out of date books on state and federal statutes for practicing law?  He also says “you can leverage your mass buying power and negotiate a low rate for all of your clients” that use your selected vendor.  Frankly, I’m surprised more firms don’t consider this – it’s a win-win for all as many vendors are willing to discount services for continual business.
  4. Risk: Losey states that “[m]istakes can happen, especially when a firm is operating outside of its core competency” and that firms often build the risk into their rates, which can penalize clients who don’t use the nonlegal services.  Again, giving the work to the organization best qualified to perform the work – the eDiscovery vendor – only makes sense.
  5. Ethics: The Comment to ABA Model Rule of Professional Responsibility 5.7 says, “When a lawyer performs law-related services or controls an organization that does so, there exists the potential for ethical problems.”  Just because “everyone does it” doesn’t make it right.  Losey notes that some ethical issues can be raised by outsourcing as well, but that’s true of any profession and that Jackson Lewis uses “whatever vendor the client wants” with direct billing from vendor to client.  Most vendors like that arrangement as well, it streamlines on time payment of invoices to the vendor for work performed.

So, what do you think?  How does your organization handle litigation support?  Do you outsource it or do you handle it in house?  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.