Close
Enter your
text here

eDiscoveryDaily

The Challenges of Modern Discovery – CloudNine Webinar

In the past, attorneys relied on printed pages and forensic imaging to produce and review traditional documents. Neither method is capable of telling the whole story. By treating data as documents, legal teams are unable to draw context from metadata, families, and threads. Static documents also don’t permit the deduplication or isolation of messages at the individual level. These shortcomings lead to slowed review speeds, excessive redactions, and the loss of relevant information.

Since then, the eDiscovery landscape has broadened to encompass modern data types such as text, geolocation, and social media data. When exported by other eDiscovery providers, the data is displayed in unwieldy spreadsheets and JSON files. Lawyers who opt to export modern data face many of the same challenges as they would with traditional discovery measures. As an alternative, a lawyer may try to produce modern ESI in the form of screenshots. Screenshots are mistakenly viewed as an easier production form because they offer clear images of conversations and provide details such as contact names and messaging times. However, several judges have rejected their admission in court due to authenticity concerns. Nowadays, it’s very easy to fabricate text conversations.

As the amount of modern ESI grows, developing an efficient and defensible discovery process becomes paramount. Rob Lekowski and Rick Clark from the CloudNine team joined Kevin Thompson from the Chicago Bar Association to discuss how CloudNine ESI Analyst uniquely tackles the pitfalls of modern discovery. Rob and Rick also provided insight into common questions such as:

  • How should legal teams deal with deleted documents?
  • What are the estimated costs and duration times for small, medium, and big cases?
  • Can you still collect evidence with CloudNine ESI Analyst if you don’t have access to the physical device?
  • How should an attorney negotiate keyword searches with opposing counsel?

To learn how to process and review modern data types in a single platform, watch the webinar here.

CloudNine’s LegalWeek 2022 Recap

Last week, the CloudNine team visited New York City to provide virtual and in-person demos during LegalWeek 2022. Rick Clark, Robert Lekowski, Clint Lehew, and Jess Moore were able to share the capabilities of CloudNine ESI Analyst with over 50 attendees.

As the industry’s only near-native investigative platform, CloudNine ESI Analyst simplifies the discovery of mobile, chat, social, and geolocation data from collection to production. Through our platform, users can filter, search, and tag items at the individual level. Messages can also be viewed through our 24-hour thread feature which increases review speeds by permitting the numbering, tagging, and production of individual messages while displaying the full context of a conversation. The key difference between ESI Analyst and traditional review is our way of processing modern data. Traditional review turns all data into documents without providing sufficient means for filtering and searching conversations. Each message or thread must be reviewed page by page. By rendering messages and media inline, ESI Analyst allows legal teams to piece evidence together at a faster rate.

During LegalWeek, the CloudNine team was able to speak to our clients directly and learn how our platform changed their tactics on approaching data and case strategies. Clients like Phil Hodgkins raved about the user-based pricing and clarity that ESI Analyst offers in telling the whole story. While conducting an internal investigation, Phil’s team found that ESI Analyst saved time and yielded better insights than two traditional review platforms. Since then, Phil has encouraged lawyers to stop cramming mobile data into document-based spaces.

“If [our clients] start talking about mobile data [and getting] into the nuts and bolts of a laptop or any device, we immediately start talking about your tool. It allows you to gain insights much more quickly than putting the data into a typical review space” – Phil Hodgkins, Director of Data Insights and Forensics at Kroll. To learn more about Phil’s experiences with ESI Analyst, click here.

Missed out on CloudNine’s LegalWeek demos? Book a demo today to learn how our software simplifies and accelerates modern data discovery.

Inaugural Symposium on eCrime – Dealing with Multiple Data Sources

Studies show that the average person generates about 100 megabytes of data per minute. While most people leverage technology for work and personal activities, it can also be a tool for criminal offenses. On February 28, 2022, the Henry C. Lee Institute of Forensic Science held a virtual symposium on e-crime. The symposium covered topics such as cell phone forensics, email investigations, and deep fakes. CloudNine Senior Director Rick Clark was featured on a panel alongside Amber Schroader, CEO of Paraben Software, and Christa Miller, managing editor at Forensic Focus. The panel addressed how data from multiple sources can aid an investigation or discovery workflow.

Panel Discussion Points:

  • Concerns from stakeholder perspectives (particular focus on HR, legal, and IT teams)
  • Case studies involving modern data in criminal cases
  • Data privacy and ownership
  • The “human” element of the generation and interpretation of data

Managing multiple data sources doesn’t have to be stressful. To address your concerns in anticipation of your next investigation, click here.

Discover the Power of ESI Analyst During LegalWeek 2022

The past two days have been a blast for the CloudNine team. From now until Friday, March 11, CloudNine is offering in-person and virtual demos while we visit New York during LegalWeek 2022. We would love to see you there as we reconnect with long-time clients and welcome new faces. The CloudNine team is also eager for the opportunity to showcase our latest eDiscovery innovation, ESI Analyst.

Modern discovery is more than documents, it’s about telling the story. Nowadays, emails and Microsoft Office files aren’t enough to piece a narrative together. Large amounts of information can be obtained from financial transactions, geolocation data, social media activity, text messaging, and more. Through customer feedback and client experiences, we recognized how taxing modern data types could be without the right tools. As an emerging solution for modern investigations, ESI Analyst uniquely offers users the ability to ingest and investigate multiple data sources within a single platform. CloudNine’s recent acquisition of ESI Analyst allows us to provide our customers with an in-depth solution for collecting, processing, and reviewing modern data.

Ready to learn more about our latest updates and solutions? There’s still time to schedule a demo. Virtually or in-person, our team is excited to provide demonstrations on the latest integration between CloudNine Review and ESI Analyst. Meetings will also feature updates on CloudNine Review’s other integrations with LAW, Concordance, and Explore via CloudNine’s Discovery Portal. Click here to book a demo before the end of LegalWeek. Or click on the banner below to request a virtual demo later this month.

Managing the Unpredictability of eDiscovery Costs

Client fees are the lifeblood of the legal industry which means unpredictability isn’t congruent to the financial stability of a successful law firm. This means your eDiscovery document review solution can be as much of a liability as it is an asset when striving to remain profitable.

As every case differs in the volume and type of data collected, processed, and reviewed, the costs associated with it can be unpredictable. Without a balanced and consistent cost structure, the result can lead to an undesirable profit loss.

When eDiscovery was first utilized in the late 1990s, it was only in special cases involving email correspondence. Today, the American Bar Association (ABA) estimates that eDiscovery accounts for more than 80% of costs.  That translates roughly to $42 billion a year, with 70% of costs directly associated with document review.

Today’s eDiscovery has evolved further to include device data derived from multiple sources which can quickly inflate expenses and severely impact your operating budget.

At CloudNine , we are dedicated to guiding you towards eDiscovery cost recovery through our streamlined and optimized data solutions; read on for more of our tips to getting to the truth and your revenue goals more efficiently.

Get to The Truth Faster: The Biggest Challenges to Profitable eDiscovery

Controlling eDiscovery costs and charging your clients appropriately comes with certain challenges.

eDiscovery Insourcing vs Outsourcing: The profitability between these two options isn’t always black and white. There are a variety of factors when considering if outsourcing eDiscovery is the right choice for you, including:

  • What pricing models do vendors offer?
  • Are there additional fees?
  • How do hosting costs change over time?
  • Does the vendor own their technology or do they lease it?
  • What’s the full extent of capabilities the vendor has to offer?

By understanding the hidden costs of outsourcing, you can determine if it will allow you to balance cost and functionality effectively.

Delays in Court Proceedings: According to an article in the Washington Post, district attorneys are facing some of the longest case backlogs in living memory due to the COVID-19 pandemic. These delays mean more costs for longer hosting and storage times for important eDiscovery data, especially when being billed by the gigabyte.

Unpredictable Timing: The Sixth Amendment to the U.S. Constitution guarantees a person accused of a crime the right to a speedy trial. That means by federal law, a criminal case must proceed to trial within 70 days of indictment. However, felony trials can sometimes linger for well over a year.  The unpredictability of time between indictment and trial means costs can run higher than expected.

Managing Multiple Vendors and/or Systems: With many vendors specializing in different features and functions, it’s difficult to find a one-stop shop for all your eDiscovery solution needs. To compensate, you’ll need to engage with different vendors resulting in more contracts, more fees, and more time wasted learning how to operate the different systems.

By using a single solution to collect and assemble multiple modern data types, you can better retain the relevant context and timeline to tell the whole story. Putting together all the pieces of the puzzle becomes simpler, faster, and more strategic.

Making eDiscovery Costs More Predictable: A consistent cost recovery model can help predict and recuperate many eDiscovery expenses, but you’ll want to evaluate the pros and cons to identify the model best suited for your firm.

Examples of common cost recovery models include:

Billable Hours: The majority of law firms traditionally charge clients the billable hours they spend performing processing and project management. This model results in the least amount of pushback from clients as they’re paying strictly for the attorneys’ time. However, this can become less profitable if your law firm is forced to host its eDiscovery data long-term due to delays in court proceedings.

Billable Hours + Hosting Fees: To compensate for increased expenses, your law firm can add hosting fees to billing statements in addition to billable hours. However, clients often push back as they may not view hosting fees as actual legal work. These fees, usually charged per gigabyte, can help you recoup eDiscovery costs, but only if the client is willing to pay.

Third-Party Vendor Style: Another option for cost recovery is to invoice your clients with line items similar to how a third-party eDiscovery vendor would operate. You can include billing for individual items such as:

  • The number of gigabytes processed
  • The volume of data hosted
  • Any analytics applied to the data
  • Any licensing fees for software used

While some clients may be familiar with this model based on their experience with eDiscovery vendors, others may balk at these types of expenses. Learn more about how to optimize your eDiscovery cost recovery by downloading our eBook: Optimize eDiscovery Cost Recovery: 6 Steps to Make Your Review Process More Profitable.

Streamline with CloudNine. Optimize eDiscovery in Minutes.

As a proven leader in eDiscovery, CloudNine has provided innovative data collection and review solutions for hundreds of law firms and legal service providers since 2002.
Regardless of the type of cost recovery model you choose, CloudNine’s eDiscovery platform delivers a complete and flexible suite of solutions at a predictable and affordable price.

Some of the benefits include:

  • SaaS Hosting for All Data – CloudNine’s SaaS offering allows analysis and review of all modern data types to include email, text messages, corporate chat applications, and geolocation.
  • Data and Storage Control – Right-size your data by culling it upfront to reduce your storage needs and control your costs.
  • User-Friendly Solutions – Every CloudNine solution is easy to use and operates on a self-service basis including smartphone collection data.
  • Dedicated Support – Our services teams are always available if you need additional support.
  • Flexible Storage – Optimize your spending whether you choose our all-in storage option or choose to pay for storage as needed.
  • Low Overall Pricing – Get predictability and affordability without compromise and leverage the features you need without paying for the ones you don’t.

Improve and optimize your eDiscovery by simplifying and streamlining the process. You’ll make it easier on your clients and more profitable for your firm.  Reach out and book a demo to  learn how CloudNine can make your eDiscovery most cost-efficient.

Perin Discovery Streamlines Workflow Through ESI Analyst: CloudNine Podcasts

For legal teams, the race to production may seem never-ending. The journey begins with some data mapping to discern who owns the data and where it is located. Once the identification process is successful, legal teams are often stopped by the first roadblock. They need to find a vendor that can collect modern data types such as text messages, tweets, and videos. After the data is collected, another roadblock stands in the way. A second vendor is needed to carry out review and production. Stopping and restarting between each step is frustrating and time-consuming, yet few LSPs offer means for a continuous workflow.

Recognizing this issue, Peter Smith and Erin Perczak launched Perin Discovery to provide a one-stop shop for both digital forensics and eDiscovery. The co-founders joined Rick Clark for our 360 Innovate Podcast to explain how they leverage ESI Analyst to engage their clients in a smooth workflow. To learn how our platform has improved their data and case strategies, visit this link: https://cloudnine.com/webcasts/perin-discovery-podcast/?pg=ediscoverydaily/collection/perin-discovery-streamlines-workflow-through-esi-analyst-cloudnine-podcasts

Kroll Leverages ESI Analyst for Case Insights: CloudNine Podcasts

Without the right tools, sorting through a large dataset is akin to stumbling in the dark. Before deep-diving into voluminous data, legal teams need to know what to look for. The sooner those insights are found, the better. For years, attorneys uploaded data to traditional review platforms to win their clients and firm a head start. Since the platforms offered minimal searching tools, attorneys meticulously combed through mobile device data text by text. This process is not only time-consuming but also inefficient. Valuable case insights are easy to miss when hidden amongst other information.

CloudNine Senior Director, Rick Clark, kicks off the new 360 Innovate Podcast through an interview with Phil Hodgkins, Director of Data Insights and Forensics at Kroll. As a growing global practice, Kroll is well-versed in managing data-heavy projects involving compliance, investigations, and litigations. While conducting an internal investigation, Kroll learned how ESI Analyst’s capabilities surpassed those of two traditional review platforms. Through its various identification and visualization features, ESI Analyst yielded larger insights at a much faster rate. To learn how the Kroll team utilized ESI Analyst to strategically navigate through a broad dataset, visit this link: https://cloudnine.com/webcasts/kroll-innovate/?pg=ediscoverydaily/searching/kroll-leverages-esi-analyst-for-case-insights-cloudnine-podcasts

Generate More Revenue For Your Law Firm with Modern eDiscovery

One of the biggest challenges for any business is discovering new revenue streams once your growth reaches its zenith. For most law firms, this creates a welcome opportunity to offer new and better solutions while bringing more revenue into the organization.

As technology evolves, so does the diversity of new data types.  By expanding your firm’s ability effectively and accurately collect and analyze emerging data types, you create new opportunities to meet the changing needs of your clients.

Hit the eDiscovery Bullseye: The Latest Trends in Data Types

Electronically stored information (ESI) evolves every time new software is created. Whether it’s an updated version of current data or an entirely new data type, ESI is constantly changing.

To operate successfully, your law firm needs the ability to effectively process these modern data types. Consider the following statistics from two popular messaging applications – Microsoft Teams and Slack:

  • Teams has 145 million daily active users
  • Teams is used by more than 500,000 organizations as their default messaging platform
  • Slack has 10 million daily active users
  • Slack is used by 43% of Fortune 100 businesses

The sheer volume of modern data users creates an unmatched treasure trove of data vital to your client’s litigation. Other popular communication platforms like Google Meet, Zoom, GoToMeeting, and WhatsApp also contribute to the unparalleled growth of modern data types.

However, only recently have legal professionals begun to see the benefits of reviewing these data types since their reliance on traditional data types was easy and typically, sufficient.

Everyone in the legal profession can benefit from the ability to collect and analyze messages and metadata from communication platforms.  However, law firms and forensics companies in particular now understand the true value of other modern data like computer activity, geolocation, and financial transactions because it’s critically important to the success of their investigations.

Read a case study to learn how CloudNine is helped reconstruct conversations across multiple file types.

Why Modern Data Doesn’t Work Well with Traditional eDiscovery Platforms

Traditional data is typically straightforward in the form of Word documents, spreadsheets, and emails converted into PDF. The biggest issue with collecting and analyzing modern metadata on a traditional eDiscovery platform is compatibility.

Modern data transmitted by web clients and web servers is usually found within JavaScript Object Notation (JSON) files. JSON files are the preferred format for almost every public web service available today, including Teams and Slack.

HTML is another popular file type used by websites and social media applications like Facebook and Twitter to create individual pages.

JSON and HTML cause problems with traditional eDiscovery because traditional platforms cannot extract the content and metadata and organize it into an easy-to-review format. The result is usually very difficult to read, let alone review for eDiscovery.

Another challenge is simply the cost. In Zubulake v USB Warburg, the courts found the defendants were required to provide all relevant data files related to the case at their own expense. If your client is a large corporation, this could mean a large volume of devices to be collected for eDiscovery, which will naturally raise costs.

Tip the Scales of Justice with a Modern eDiscovery Platform

As applications like Teams and Slack make modern data more common, it has become more acceptable to be used in litigation. In the past, attorneys would argue to have modern data dismissed, and more often than not, the judge would allow it. Today’s judges have a better understanding of the value of emerging data so they require it for eDiscovery.

Modern eDiscovery platforms can collect a variety of modern data and accurately prepare it for review. Data types under this umbrella include:

  • Communication from messaging applications
  • File sharing applications
  • Metadata from video conferences
  • Mobile messaging including text, SMS, and MMS
  • Computer activity including the movement and alteration of files
  • GeoLocation
  • Social media posts
  • Financial transactions

In addition, by leveraging a modern data review platform, you can collect communication across multiple applications and devices. Based on the metadata, you can create pristine communication threads that flow from one platform to another, giving you a more complete picture and the context to understand how people were behaving and why. That simply isn’t possible in a traditional eDiscovery platform.

Stay up to date on how CloudNine is revolutionizing eDiscovery by signing up for our regular eDiscovery updates and best practices.

How Law Firms Use Modern eDiscovery to Offer Better Solutions

When you have the ability to review modern data, you can manage your case more effectively and efficiently by consolidating the workflows of multiple processes using a single SaaS platform.

  • Early Case Assessment. With CloudNine’s people and platforms, you are enabled to collect, cull, process and organize large amounts of modern data, to provide the needed insight to your case investigations to predict costs more accurately.
  • Unified Review Workflows. A simplified and consolidated workflow allows you to process, sort, review, tag, and produce traditional and modern data quickly and accurately.
  • Higher Level of Data Organization. By leveraging the metadata and conversation content, you can analyze and review all data types easier and more efficiently. This “Data NOT Documents” approach allows you to quickly narrow in on key conversations faster than traditional document review.
  • Context to Understand the Whole Story. Following digital conversations across multiple platforms along with computer activity, geolocation, social media and financial transactions, you create a more complete narrative to add the context needed to understand the whole story.

With these benefits, you can now demonstrate maximum efficiency and offer unparalleled service to your clients.

Your clients are looking to you to provide the best legal advice and management of their data, regardless of data types, modern or traditional.

By offering a solution giving them equal access to both traditional and modern data types with CloudNine eDiscovery solutions. Request a free demo and let us show you how CloudNine can help you generate more revenue while better preparing your clients for litigation.

Four Times Self-Collection Went Wrong

Per FRCP Rule 26(g), attorneys must sign discovery requests, responses, and objections. To the best of the attorney’s knowledge, the signature certifies three factors: 1) the document is compliant with existing rules and regulations; 2) it has no improper purpose such as slowing litigation; 3) it is not unreasonably burdensome to the producing party. This may become an issue if your client opts for self-collection. If counsel does not oversee or supervise the collection process, they have violated the rule and will be sanctioned accordingly. [1] During self-collection, custodians are responsible for identifying and gathering potentially relevant ESI on their own. When conducted carefully, self-collection may be adequate and cost-effective for small cases. However, there are several risks involved. The client may lose valuable metadata if their collection is done incorrectly. Additionally, they may purposely or accidentally omit incriminating evidence. Overall, if the self-collection process is not defensible and well-documented, the evidence will be rejected, and sanctions will follow. [2]

Self-Collection Cases and Sanctions

  • EEOC v. M1 1500 Group is a well-known age discrimination case in which two of the defendant’s employees collected ESI without any counsel supervision. Counsel signed the discovery response despite their hands-off approach. The plaintiffs moved to compel after counsel admitted to their negligence and the defendants produced less evidence than expected. Judge Matthewman granted the defendants a second chance but required both parties to collaborate in a robust meet and confer. The court also issued sanctions and advised counsel to seek the assistance of an ESI vendor. [3]
  • Over a year after the case ended, Green v. Blitz reopened once the court discovered that the defendant destroyed and omitted relevant email evidence. Only one employee oversaw the collection process, and he described himself in court as “computer illiterate.” After confirming the relevance of the missing emails, the court imposed civil contempt sanctions worth $250,000. The defendants also faced a $500,00 purging sanction unless they provided a copy of the order to all litigants who filed against them within the past two years. As the final sanction, Blitz USA was ordered to file a copy of the order when filing any lawsuit within the next five years. [4]
  • Nat’l Day Laborer Org. v. U.S. Immigration and Customs Enforcement Agency involved various government agencies who lacked a uniform collection plan. The agencies also failed to properly document their differing collection processes. Consequently, the agencies were sanctioned for relying too heavily on self-collection. They were also reprimanded for their undocumented and uncoordinated efforts.
  • In Suntrust Mortgage Inc. v. AIG United Guaranty Corp., the defendant chose not to seek the help of any forensic experts or ESI vendors. One employee was in charge of the identification and collection process. By copying and pasting different emails together, the employee tampered with the evidence before production. The fabrication resulted in court issued financial sanctions. [2]

Avoid self-collection pitfalls by utilizing CloudNine’s Collection Manager, a breakthrough extraction solution for Office 365 emails and OneDrive files. To learn more information or request a demo, visit: https://cloudnine.com/ediscovery-software/cloudnine-collection-manager/

[1] Gretchen E. Moore, “The Perils of Self-Collection of Electronically Stored Information,” The National Law Review, April 28, 2021.

[2] FindLaw Attorney Writers, “Self-Collection: The Good, the Bad, and the Ugly,” FindLaw, June 20, 2016.

[3] Kelly Twigger, “Beware of the Perils of Allowing Self-Collection,” eDiscovery Assistant, July 9, 2020.

[4] Peter Vogel, “Another Trap is Sprung: The Danger of Self-Collection,” Foley & Lardner LLP, June 20, 2011.

How to Redact Without Regrets

Safeguarding a client’s personal information is an important responsibility. Redactions protect client privacy by obscuring confidential, privileged, non-responsive, and personally identifiable information from relevant documents. [1] Though important, redactions are a time-consuming part of the review process, especially when done manually. To save time, legal teams should conduct an initial assessment of what, when, and where redactions should be placed. As a first step, examine the nature of the case and discovery. In other words, identify the tools and file types that will be included in the review process. When considering which redaction tool to use, refer back to the guidelines set by the ESI protocol and protective order. The sophistication of both parties can also impact the accessibility of digital redaction technology. [2] Overall, redactions should not be taken lightly. Mistakes often embarrass or endanger the client’s safety. Other ramifications may include waived attorney-client privilege, malpractice lawsuits, suspension, and even disbarment.

Redaction Failures

  • In January 2019, Paul Manafort’s pleadings were filed as PDF documents containing portions of blacked-out text. By copying and pasting the PDF into a different text document, people were able to see the improperly hidden text. Consequently, the court learned of Manafort’s exchanges with Konstantin Kilimnik, an alleged Russian intelligence agent.
  • In a 2018 legal battle with an app called Six4Three, Facebook’s lawyers failed to obscure sensitive information from a PDF file. The mistake revealed that Facebook considered giving user data to Six4Three in exchange for financial compensation.
  • In August 2018, the United States Postal Service was tasked with producing a civilian personnel file of Congresswoman Abigail Spanberger. In compliance with the Freedom of Information Act, USPS successfully produced the file but failed to redact any of her personal information. Information disclosed in the file included Spanberger’s SF-86 security clearance application, social security number, and responses to personal background questions. [3]

Redaction Mistakes to Avoid

  • Don’t simply change the font to white. Though the words look like they have disappeared, they can be seen when highlighted.
  • Don’t hide black text with black highlights. Similar to the white font problem, black highlight looks like it hides black text. However, the information will show when a mouse is clicked and dragged over it.
  • Don’t forget about the metadata! Metadata from word-processing programs contains information about text changes and deletions. Unless purged from the document, this information can be found even after the file is re-saved or converted to a PDF.
  • Don’t rely on Adobe Acrobat edits to black-out or remove text. These edits can be removed if the information is copied and pasted into a different document. [4]

[1] Rachel Teisch, “Death, Taxes, and Redaction Blunders,” EDRM, February 4, 2022.

[2] Clara Skorstad, “Right on Redactions,” JD Supra, November 4, 2020.

[3] “Getting Redactions Right Matters Now More Than Ever,” Warner Norcross + Judd, November 12, 2019.

[4] “Best Practices: Redaction of Information,” United States District Court, Southern District of Alabama.