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MAJOR Announcement from EDRM!: eDiscovery Trends

After over 11 years establishing itself as the leading standards organization for the eDiscovery market, EDRM has been acquired!

As they announced in their press release here yesterday, Duke University School of Law has acquired EDRM.  The release stated: “The move advances the missions of both organizations. For EDRM, Duke provides an institutional home with a large and respected organization, ensuring the continued vitality of EDRM. Duke Law and its Center for Judicial Studies gain resources that expand the center’s involvement in electronic discovery and information governance in support of its mission to promote better understanding of the judicial process and to generate ideas for improving the administration of justice.”

“This agreement sets the stage for an expansion of EDRM efforts in industry education and standards,” stated Dean David F. Levi in the press release. “E-discovery is a major component of today’s litigation practice, and EDRM provides valuable resources to educate not only experienced practitioners, but also law students and new lawyers about practical discovery problems they will encounter. This acquisition is also an important step in Duke’s continued efforts to bring together the judiciary, legal practitioners, educators and government organizations to advance the understanding of the judicial process and improve the complex processes in the administration of justice.”

“We are proud of the significant impact EDRM has made on education and practices in electronic discovery and information governance since 2005,” stated George Socha, co-founder of EDRM. “The achievements of EDRM are a direct result of the hard work of many legal and technology practitioners whose efforts and expertise have improved e-discovery and information governance practices and ultimately the judicial process. Tom Gelbmann and I extend to each of them our sincere appreciation, and we encourage continued participation in this exciting next phase with Duke Law.”

Socha will remain with EDRM after the acquisition. EDRM co-founder Gelbmann plans to work with Duke Law for the transition of EDRM programs and will retire later this year. “We are fortunate,” stated Levi, “that Tom Hnatowski, former chief of the Magistrate Judges Division of the Administrative Office of the United States Courts, agreed to join the Judicial Studies Center to manage day-to-day operations running EDRM. Tom brings a wealth of experience and a unique perspective to the improvement of the administration of justice with his many years working with U.S. magistrate judges, the front-line judicial officers who handle discovery issues on a daily basis.”

An email providing details was sent to all EDRM members on Tuesday evening in advance of Wednesday’s public announcement.  In a follow-up response to queries from EDRM members, Socha noted that the “good work” being performed on existing projects “will continue under Duke Law.  Not only will it continue, but we hope to be able to expand it.”  And, he also indicated that “EDRM under Duke will continue to be open to existing members’ contributions”, which “always have been at the core of what has made EDRM successful – indeed, of interest to anyone.”

Hopefully, it sounds as though the acquisition will enable EDRM to continue to provide useful standards models and mechanisms to the industry, even though the day-to-day leadership will change.  As an EDRM Education partner, eDiscovery Daily will certainly continue to provide eDiscovery news and analysis as we always have and will certainly make our readers aware of new deliverables from the EDRM community.

From a personal standpoint, I’m certainly glad to see that George Socha will remain with EDRM, even as he continues in his new role at BDO.  I’m also certainly sad to see Tom Gelbmann retire soon as I have thoroughly enjoyed working with him as a colleague within EDRM through the years – he is truly as nice a guy as there is and I will miss working with him.  Nonetheless, it certainly sounds as though George and Tom found a good new home for the organization that they created 11 years ago – one that should enable it to continue to thrive for years to come.

So, what do you think?  Will the acquisition of EDRM be a good thing for the eDiscovery industry?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Considering All of the Considered TAR Responses: eDiscovery Trends

Our webinar panel discussion conducted by ACEDS a couple of weeks ago has generated some interesting discussion and debate over the past week or so about the content of the webinar, what it should have covered and what it was intended to cover.

The webinar panel discussion, titled How Automation is Revolutionizing eDiscovery was sponsored by CloudNine and presented on August 10 (here is a link to last week’s blog post with an embedded video of the webinar).  Our panel discussion provided an overview of eDiscovery automation technologies and we took a hard look at the technology and definition of TAR and potential limitations associated with both.  Mary Mack, Executive Director of ACEDS moderated the discussion and I was one of the panelists, along with Bill Dimm, CEO of Hot Neuron and Bill Speros, Evidence Consulting Attorney with Speros & Associates, LLC.

On the next day, ACEDS published A Considered Response from Gordon Cormack, which was a letter from Gordon Cormack, Professor with the School of Computer Science at the University of Waterloo in Ontario, Canada who is an expert in the area of technology-assisted review in litigation and has co-authored several influential works with Maura Grossman, a fellow researcher at the University of Waterloo (and, before that, an attorney with Wachtell, Lipton, Rosen & Katz).  Cormack and Grossman authored the 2011 Richmond Journal of Law and Technology (JOLT) study (that I inaccurately referred to in the webinar as a “white paper” – sorry about that) titled Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, which was discussed to some extent during the webinar that both Cormack and Grossman attended.

In his letter, Dr. Cormack expressed several concerns about the content of the webinar, including their belief “that the webinar presented the false impression that we, and the courts, are resting on our laurels and that no legitimate empirical work has been done with respect to TAR.”  He provided links to several other works that have been authored by Cormack and Grossman that were not discussed during the webinar and also noted his opinion that the webinar lacked “any constructive suggestion as to how to proceed” (among other concerns he noted).

Then, last week, ACEDS also published responses from two of the presenters, Bill Speros (Reconsidering Dr. Cormack’s Considered Response) and Bill Dimm (ACEDS Commentary: Bill Dimm Responds to Gordon Cormack) where both “Bills” (Speros and Dimm) provided responses to the concerns that Dr. Cormack raised in his letter the previous week.

I feel that both Speros and Dimm made several good points in both clarifying the intended scope of the webinar and also in what we feel the webinar accomplished.  Dimm noted that “our goal was to deliver a large amount of information that is useful to a broad e-discovery audience within the confines of a 60-minute webinar” (of which about 40 minutes were devoted to TAR) and that we covered the JOLT report as extensively as we did (instead of other Cormack/Grossman works) “because it is the study that judicial opinions rely upon, and we’re not aware of any subsequent study comparing the quality (not merely the cost) of TAR results to those of human review.”

Speros identified several constructive suggestions that we felt the webinar provided, including “Clarifying the (general lack of) judicial acceptance of TAR”, “Differentiating alternative TAR techniques and technologies” and “Developing independent and valid TAR assessments”.  Speros also noted that “rather than attacking Dr. Cormack and his work, the webinar’s content spoke to the quality of the court’s interpretations [of the JOLT report] in a manner entirely consistent with thoughtful and professional analysis” – a position with which I agree wholeheartedly.

So, what is my response to Dr. Cormack’s letter?

As the other presenter in the webinar, I don’t have much to add to the responses provided by Speros and Dimm, except that they essentially reflect my own thoughts about the intent and accomplishments of the webinar.  Our goal was to challenge several industry-accepted assumptions about TAR and to take a look at the current state of acceptance of TAR, both judicially and within organizations contemplating the use of TAR.  And, I feel we accomplished that.

Nonetheless, I have tremendous respect, not just for my co-presenters, but also for Gordon Cormack and Maura Grossman and the numerous contributions that they have made to the industry through their research and various works (including the 2011 JOLT report).  I consider this to be a healthy discussion and debate among industry thought leaders and look forward to hopefully seeing that healthy discussion and debate continue.  I encourage you to view the webinar and read the commentaries by Cormack, Speros and Dimm and draw your own conclusions.

So, what do you think?  Do you have an opinion on the webinar or on the topic of TAR in general?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

It Took a While, But the Sedona Conference Has Finalized its Guide for “Possession, Custody, or Control” of ESI: eDiscovery Best Practices

A year ago in April (i.e. April 2015), The Sedona Conference® released a new public comment version of a guide designed to provide guidance to defining the phrase “possession, custody, or control” as it’s used in Federal Rules 34 and 45 (we covered it here).  Earlier this month, the final version of that guide was released.

As we noted then, Rule 34(a) and Rule 45(a) obligate a party responding to a document request or subpoena to produce “documents, electronically stored information, and tangible things” in that party’s possession, custody, or control.  But, the Rules are silent on what the phrase “possession, custody, or control” means and case law is inconsistent (across circuits and even within circuits at times).  And, determining whether ESI should be considered to be in a responding party’s “possession, custody, or control” has become more complex, with the growing popularity of technologies and trends such as social media and cloud computing.

So, The Sedona Conference Commentary on Rule 34 and Rule 45 Possession, Custody, or Control was created to provide practical, uniform and defensible guidelines regarding when a responding party should be deemed to have “possession, custody, or control” of documents and all forms of electronically stored information (ESI) subject to Rule 34 and Rule 45 requests for production.  A secondary purpose of the Commentary is to advocate abolishing use of the common-law “practical ability test” for purposes of determining Rule 34 and Rule 45 “control” of ESI, which has led to “inequitable” situations in which courts have held that a party has Rule 34 “control” of Documents and ESI even though the party did not have the actual ability to obtain the Documents and ESI.

The final 103 page PDF guide includes the following actual principles (minimally changed from the public comment version).  They are:

  • Principle 1: A responding party will be deemed to be in Rule 34 or Rule 45 “possession, custody, or control” of Documents and ESI when that party has actual possession or the legal right to obtain and produce the Documents and ESI on demand.
  • Principle 2: The party opposing the preservation or production of specifically requested Documents and ESI claimed to be outside its control, generally bears the burden of proving that it does not have actual possession or the legal right to obtain the requested Documents and ESI.
  • Principle 3(a): When a challenge is raised about whether a responding party has Rule 34 or Rule 45 “possession, custody, or control” over Documents and ESI, the Court should apply modified “business judgment rule” factors that, if met, would allow certain, rebuttable presumptions in favor of the responding party.
  • Principle 3(b): In order to overcome the presumptions of the modified business judgment rule, the requesting party bears the burden to show that the responding party’s decisions concerning the location, format, media, hosting, and access to Documents and ESI lacked a good faith basis and were not reasonably related to the responding party’s legitimate business interests.
  • Principle 4: Rule 34 and Rule 45 notions of “possession, custody, or control” should never be construed to override conflicting state or federal privacy or other statutory obligations, including foreign data protection laws.
  • Principle 5: If a party responding to a specifically tailored request for Documents or ESI (either prior to or during litigation), does not have actual possession or the legal right to obtain the Documents or ESI that are specifically requested by their adversary because they are in the “possession, custody, or control” of a third party, it should, in a reasonably timely manner, so notify the requesting party to enable the requesting party to obtain the Documents or ESI from the third party. If the responding party so notifies the requesting party, absent extraordinary circumstances, the responding party should not be sanctioned or otherwise held liable for the third party’s failure to preserve the Documents or ESI.

One change from the public comment version was to replace the word “trump” with “override”.  Hmmm, wonder why?  :o)

The remainder of the guide covers 1) the background that led to the new principles, including inconsistent interpretations of “possession, custody, or control” within the Rules, a deeper look at the “practical ability test” and effect of new technologies on the analysis and 2) a detailed look at each of the new principles with commentary.  They dropped the Appendix with case law where “possession, custody, or control” was at issue.

As usual, the Commentary is free and you can download it (both the Final and the Public Comment versions) here.

So, what do you think?  Will these new principles lead to a consistent application of “possession, custody, or control” within the courts?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

I Wouldn’t Con You, But ILTACON is Just a Week Away: eDiscovery Trends

Believe it or not, it’s almost time for another ILTACON!  ILTACON is the annual conference for the International Legal Technology Association (ILTA).  This year, it is being held in the shadow of Washington, DC in Alexandria, VA at the Gaylord National Resort & Convention Center.  And, once again, eDiscovery Daily will be covering the show!  If you’re in the DC area next week, you may want to check out a few of these sessions regarding eDiscovery and Information Governance.

Technically, ILTACON opens in 6 days with the annual golf tournament, orientation and opening reception happening on Sunday.  Oh, and every day starts with Yoga and Zumba at 6:30am!  However, the Keynote and Educational Sessions start a week from today, on Monday, the 29th.  Here are a few sessions to check out:

Monday, 08/29/2016:

Federal Rules of Civil Procedure Amendments and Their Effect on Litigation Support Strategies, 11:00 AM – 12:00 PM ET: Significant amendments to the Federal Rules of Civil Procedure became effective on December 1, 2015. How have courts interpreted and applied these new changes? Do the amendments provide the basis for corporations to change their approaches to the preservation, collection, review and production of electronically stored information? If so, have they actually changed? What opportunities do the amended rules provide for litigation support departments to educate and consult with clients and drive their e-discovery strategies? Join a panel of experts to learn more about these recent developments.  Speakers include: Eric Lieber, Director of Legal Operations & Litigation Support Toyota Motor Sales; Honorable Andrew J Peck, US Magistrate Judge of New York and Rodney Holaday, Partner Vorys, Sater, Seymour and Pease LLP.

Security and Information Governance: Together in Perfect Harmony, 4:00 PM – 5:00 PM ET: Information governance and security shouldn’t be conflicting goals. You can satisfy the goals of your clients, general counsel, knowledge managers and technologists by aligning your information governance and security policies so they complement one another and advance your firm’s strategic goals. Security policies can reinforce information governance imperatives, and good information governance should be part of your security assessments. Join us as we examine the benefits of harmonizing these two disciplines, best practices and how to identify opportunities within your organization.  Speakers include: James A. Merrifield, Records & Information Governance Manager Robinson & Cole LLP; Leigh Isaacs, Director, Records & Information Governance White & Case LLP; Terry Coan, Senior Director HBR Consulting LLC.

And, of course, you don’t want to miss the Exhibit Hall Opening Reception from 7:00 PM – 9:00 PM ET, where booths will be decorated as different countries. As always, this is a great opportunity to visit with exhibitors and tour the Exhibit Hall in a relaxed setting and hors d’oeuvres and beverages will be served.

Tuesday, 08/30/2016:

Preparing an ROI for eDiscovery Services: A Litigation Technology Operations Workshop, 11:00 AM – 12:30 PM ET: In this hands-on, interactive workshop, participants will create a simulated return on investment (ROI) analysis for e-discovery services. This collaborative exercise will highlight several different approaches to a project and expose clues to reaching your firm’s ROI goals.  Speakers include: Mary Pat Poteet, Managing Consultant; Sheila Mackay, Vice President Xerox Legal Business Services; Bret Libigs, Enterprise Accounts Relativity by kCura.

The Lean, Mean E-Discovery Machine: Project Management in Litigation Support, 1:30 PM – 2:30 PM ET: Everyone talks about project management (PM), but do litigation and practice support technologists truly know why and how it is beneficial in e-discovery? Do specific deliverables and quality check points matter, or is project management an ad hoc exercise? Three high-level e-discovery strategists will examine aspects of the business side of e-discovery, such as estimating and budgeting, and offer insight into how to measure your PM maturity, the success of your e-discovery projects, and the specific processes and workflows that have yielded successful outcomes. Learn what works — and what doesn’t — when implementing a project management program while striving to manage change in e-discovery.  Speakers include: Michael Quartararo, Director of Litigation Support Services Stroock & Stroock & Lavan LLP; Dera Jardine Nevin, Director of eDiscovery Proskauer Rose LLP; Daryl Shetterly, Director, DRS Operations Orrick, Herrington & Sutcliffe LLP.

Wednesday, 08/31/2016:

The Future of Law Firms in the E-Discovery Space: A Client’s Perspective, 3:30 PM – 4:30 PM ET: With the rise of legal service providers and more clients taking work in-house, the value chain in the e-discovery world has been somewhat disrupted. To combat this, we need to delve into clients’ long-term strategies for managing electronic discovery. Who is responsible for various tasks today? What is the plan for the future? How might these strategies effect how we work and how we’re staffed? How are firms and vendors responding to the new models? Let’s get the client’s perspective!  Speakers include: Eric Lieber, Director of Legal Operations & Litigation Support Toyota Motor Sales; Joan Washburn, Director of Litigation and eDiscovery Services Holland & Knight LLP; Thomas Biegacki, Business Development Executive Integreon; EJ Bastien, Lead eDiscovery Program Manager Microsoft Corporation.

Thursday, 09/01/2016:

How Future Technology Will Affect Litigation Support, 11:00 AM – 12:00 PM ET: A panel of e-discovery industry leaders and visionaries will discuss what future technologies will have an effect on litigation support and e-discovery. Find out what these leaders think will happen in the next few years and what you need to be ready for with the coming changes in technology.  Speakers include: Stephen Dooley, Assistant Director of Electronic Discovery and Litigation Support Sullivan & Cromwell LLP; Craig Ball, ESI Special Master and Attorney Craig D. Ball, P.C.; Jay Leib, Founder and CEO NexLP; Sheila Mackay, Vice President Xerox Legal Business Services; Dave Copps, Founder & CEO Brainspace; Brendan Hall, Vice President, Business Development Xerox Legal Business Services.

Click here for more information on registering for the conference.  Hope to see you there!

So, what do you think?  Are you attending ILTACON this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

There’s a New TAR Case Law Primer Published by The Sedona Conference: eDiscovery Best Practices

One of the major topics discussed during last month’s panel discussion at The Masters Conference and also last week during our ACEDS webinar was the debate over the current state of judiciary acceptance of technology assisted review (TAR).  Whether intentional or not, to help with that debate The Sedona Conference® has just published the Public Comment Version of a new TAR Case Law Primer.

This was a project of The Sedona Conference Working Group on Electronic Document Retention and Production (WG1).  As noted in the Preface of the Primer, it is “the product of more than a year of development and dialogue within WG1. It was originally conceived as a chapter of a larger Commentary on the use of TAR in civil litigation, but the rapid development of the case law, the volume of court decisions, and the importance of those decisions in shaping legal practice in real time required that an exposition of the case law be made available on a faster timetable than WG1’s usual dialogue and consensus-building process allowed. For that reason, the Primer strives to present the case law in as neutral a fashion as possible. It avoids making any recommendations regarding particular TAR methodologies, nor does it propose any principles, guidelines, or best practices for TAR application, independent of those suggested by the courts themselves.”

The 33 page PDF file covers several topics related to Technology Assisted Review, including:

  • Da Silva Moore: Obviously as the first case to authorize the use of TAR, Judge Andrew Peck’s Da Silva Moore ruling merits its own section as a logical starting point, with the advantages of TAR and the emphasis on process (including advice to “follow the Sedona Cooperation Proclamation model”);
  • Other Courts’ Encouragement of the Use of TAR and Additional Cases Reflecting the Parties’ Use of TAR: The Primer touches on other cases where the use of TAR was either encouraged or used;
  • Disputed Issues Regarding TAR: This is the significant portion of the Primer, touching on issues ranging from efforts by requesting parties (and by courts) to compel the use of TAR, two contradictory decisions about whether it’s OK to switch to TAR in the middle of discovery, cases that address the appropriateness of using search terms to cull the document population before applying TAR, issues associated with disclosure of seed/training/validation sets and advance court approval of the use of TAR (such as the Dynamo Holdings case, which recently had another significant opinion about the results of the TAR process, despite cooperation between the parties).

The Primer also provides a review of evolving views of TAR and the state of international adoption, with discussion of both the Pyrrho Investments and Brown v BCA Trading cases.  The final section is an Index of Cases (at least those covered in the Primer).

The Conclusion section (just before the Index of Cases) offers this conclusion:

“While the case law reflects a broad consensus that TAR is an acceptable search and review methodology, certain issues regarding the details of its use remain unresolved. The general principles set forth in the cases discussed in this Primer should provide useful guidance to courts and parties seeking to use TAR to achieve the goals of Federal Rule 1 (the just, speedy, and inexpensive resolution of legal proceedings) and Rule 26(b)(1) (proportionality). The Bench and Bar should continue to actively monitor research and case law developments in this area.”

You can download the Primer here.  The Sedona Conference encourages Working Group Series members and others to spread the word and share this link so they can get comments in before the public comment period closes on October 15, 2016 (consider the word spread!). Questions and comments regarding the Primer may be sent to comments@sedonaconference.org.

So, what do you think? What do you consider to be the state of judicial acceptance of TAR?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 an Interesting Interview Conducted Using a Cool Conversation Tool: eDiscovery Trends

If you regularly read sites that discuss legal technology and other important issues for the legal profession, you’re certainly familiar with the site Above the Law, which takes a behind the scenes look at the world of law and covers it on several levels, including big law, small firms, law schools, finance, CLE and, of course, eDiscovery.  Regarding eDiscovery, their latest interview gives you an opportunity to learn more about our company, CloudNine.

In Simplicity And eDiscovery? A Conversation With CloudNine’s Brad Jenkins, written by Zach Abramowitz, our CEO and co-founder discusses the evolution of our company (we’ve been around probably longer than you realize – over 13 years), the challenges of competing in a crowded eDiscovery market and, especially, the challenges of competing in that market without the benefit of outside funding from an investor or venture capital firm.  Brad also discusses our value proposition and how our approach to security is different from other SaaS eDiscovery automation providers in the market, among other things.  If you want to learn more about us as a company, this is a good opportunity to hear it from the guy (well, one of two guys) who started it all.

Another notable aspect of the interview is how it has been (and still might be being) conducted.  Abramowitz is using a mechanism called ReplyAll, which enables you to invite other writers or interesting guests to your site for interviews, roundtables, stories and debates.  So, it’s really a mechanism that facilitates conversations online.  Having commented on a couple of conversations started via ReplyAll, it’s a great way to manage discussions with a limited or (conceivably) unlimited number of participants.

When I mentioned that the interview still might be being conducted, that’s conceivably possible.  When the interview “began” on Tuesday’s article, Abramowitz had asked Brad a few questions, to which he responded.  If you checked yesterday morning, there was another question out there and, later in the day, another response from Brad.  So, the interview may still be going on as we speak!  :o)

So, what do you think?  Have you participated in an online discussion using ReplyAll?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 New Twist to Text Overlays on Image-Only PDF Files That Can Be Even More Problematic: eDiscovery Best Practices

Remember when we discussed the issue of text overlays on image-only PDF files (typically represented as Bates numbers) and the problems they cause?  Well, we found a variation to the issue that is even more of a problem.

Here’s a recap of the issue we identified a couple of years ago.  The client was using the Discovery Client that allows clients to upload their own native data for automated processing and loading into new or existing projects into our CloudNine platform.  The collection was purported to consist mostly of image-only PDF files, which is one way to create PDF files (click back to the old post for more info on both ways to do so).

Like many processing tools, such as LAW PreDiscovery®, CloudNine was programmed back then to handle PDF files by extracting the text if present or, if not, performing OCR on the files to capture text from the image.  Text from the file is always preferable to OCR text because it’s a lot more accurate, so this is why OCR is typically only performed on the PDF files lacking text.

After the client loaded their data, we did a spot quality control check (like we always do) and discovered that the text for several of the documents only consisted of Bates numbers.

Why?

Because the Bates numbers were added as text overlays to the pre-existing image-only PDF files.  When the processing software viewed the file, it found that there was extractable text, so it extracted that text instead of OCRing the PDF file.  In effect, adding the Bates numbers as text overlays to the image-only PDF rendered it as no longer an image-only PDF.

As a result of this issue a couple of years ago, we added logic to the processing engine of CloudNine to perform OCR if there is minimal text per page (to account for the scenarios where there is only a Bates number).  Therefore, the content portion of the text would still be captured, so it would be available for indexing and searching.  Problem solved, right?

For the most part, yes.  Until a couple of weeks ago, where we ran into the situation again on a few PDF files.  Again, these files only generated the Bates numbers during processing.  What made them different?

Ever hear of a watermark?  These documents were stamped DRAFT via a light gray watermark on the PDF file.  Then, they were Bates stamped with the Adobe Acrobat Bates Numbering functionality.

Evidently, because of the watermark, the document image and the text overlaid Bates number were on separate levels of the PDF.  The processing tool failed to pick up the text because it essentially couldn’t find it.  Our production team ultimately had to re-generate the PDF files (by printing them back to PDF) and then OCR them.  That’s one reason why it’s good to have a team in place – to handle anomalies like that which occur.

As we noted a couple of years ago, if you haven’t applied Bates numbers on the files yet (or have a backup of the files before they were applied – highly recommended) and they haven’t been produced, you should process the files before putting Bates numbers on the images to ensure that you capture the most text available.  And, if opposing counsel will be producing any image-only PDF files, you will want to request the text as well (along with a load file) so that you can maximize your ability to search their production.  Doing so will save you additional processing charges.

Of course, your first choice should be to receive native format productions whenever possible – here’s a link to an excellent guide on that subject.

So, what do you think?  Have you dealt with image-only PDF files with text overlaid Bates numbers?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Declines to Sanction Defendant for Deletion of Former Employee’s Email Account: eDiscovery Case Law

In Moore v. Lowe’s Home Centers, LLC, No. 14-01459 (W.D. Wash., June 24, 2016), Washington District Judge Robert J. Bryan denied without prejudice the plaintiff’s Motion for Sanctions for Defendant’s Willful Spoliation of Evidence for deleting her email account after she was terminated, finding a lack of duty preserve or bad faith on the defendant’s part and minimal (if any) prejudice to the plaintiff.

Case Background

In this case involving allegations of unlawful employment practices by the defendant, the plaintiff (employed at the time by the defendant) emailed the defendant’s Human Resources department and other management about her concerns “on at least eleven occasions, articulating concerns about, inter alia, other employees ‘gang[ing] up’ on her, ‘glaring and…nonverbal harassment,’ and criticism of Plaintiff’s frequent restroom use during pregnancy”. At least on one occasion, one of the defendant’s employees sent correspondence to HR suggesting that the plaintiff might sue. The defendant ultimately terminated the plaintiff in February 2013 and the defendant’s “Legal Counsel was allegedly present for at least one meeting where Plaintiff’s termination was discussed.”

On April 25, 2013, the plaintiff’s attorney demanded that the defendant produce the plaintiff’s personnel file, which, according to the Court, formally placed the defendant on notice of potential litigation.  However, according to the defendant, the plaintiff’s email account was deleted on March 30, 2013 as part of a nightly-scheduled exchange task, which automatically deleted employees’ accounts on a certain date following their termination unless the defendant intervened, for example, when there was a Legal Hold.  The defendant allegedly limited its management and HR employees to 50MB of storage capacity in their inboxes, requiring employees to regularly clean out their inboxes manually or with automatic settings.  HR employees had deleted emails from the plaintiff that they acknowledged included emails that the plaintiff produced in discovery.  The plaintiff filed a Motion for Sanctions for Defendant’s Willful Spoliation of Evidence, requesting terminating sanctions.

Judge’s Ruling

Judge Bryan stated that the “parties’ briefing focuses on four issues, which are the focus of the undersigned’s analysis: (1) Defendant’s duty to preserve; (2) whether Defendant acted willfully or in bad faith; >(3) prejudice to Plaintiff; and (4) the appropriate sanction.”  Taken in turn, Judge Bryan ruled that:

  1. “Based on the parties’ submissions, Defendant did not have a duty to preserve Plaintiff’s emails prior to their deletion. Most of Plaintiff’s emails to HR and management do not raise ‘potential claims,’ but rather raise Plaintiff’s concerns about workplace gossip and challenging relationships.”;
  2. “Defendant was not on notice of potential litigation and had no duty to preserve Plaintiff’s emails until April 25, 2013, so Defendant did not act in bad faith by deleting Plaintiff’s emails, especially where there is no evidence that Defendant deleted them in violation of Defendant’s Records Management Policy or its own consistent records practice.”;
  3. “Even if Defendant willfully violated its duty to preserve Plaintiff’s emails, Plaintiff suffers only minimal prejudice, if any. Plaintiff produced eleven emails that substantiate much of the factual basis for most of her claims.”; and
  4. “Because Plaintiff asks only for the sanction of default, a request the Court denies, other remedies need not be addressed.”

As a result, Judge Bryan denied without prejudice the plaintiff’s Motion for Sanctions for Defendant’s Willful Spoliation of Evidence.

So, what do you think?  Should the duty to preserve have been earlier?  If so, would that have changed the result?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 is Where You Can Catch Last Week’s ACEDS Webinar: eDiscovery Trends

Our webinar panel discussion conducted by ACEDS last week was highly attended, well reviewed and generated some interesting discussion (more on that soon).  Were you unable to attend last week’s webinar?  Good news, we have it for you here, on demand, whenever you want to check it out.

The webinar panel discussion, titled How Automation is Revolutionizing eDiscovery was sponsored by CloudNine.  Our panel discussion provided an overview of eDiscovery automation technologies and we took a hard look at the technology and definition of TAR and potential limitations associated with both.  Mary Mack, Executive Director of ACEDS moderated the discussion and I was one of the panelists, along with Bill Dimm, CEO of Hot Neuron and Bill Speros, Evidence Consulting Attorney with Speros & Associates, LLC.

Thanks to our friends at ACEDS for presenting the webinar and to Bill Dimm and Bill Speros for participating in an interesting and thought-provoking discussion.  Hope you enjoy the presentation!

So, what do you think?  Do you think automation is revolutionizing eDiscovery?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Happy Anniversary to my wife (and the love of my life), Paige!  I’m very lucky to be married to such a wonderful woman!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Has a New Look!: eDiscovery Redesign

If you’ve been reading our blog the past couple of days, you may have noticed that our blog has a new look.

After nearly 6 years and over 1,450 posts, we decided it’s time to freshen our look.  So, our new site has a fresher look, larger fonts for easier reading of the posts, even easier to read than our last redesign back in January 2015.  We hope you like it!

Though we’ve updated the look, we’ve maintained the overall functionality within the blog to preserve the easy ability to look up topics by category or by month and we’ve preserved the search box to enable you to search for any topic you desire to find.  Most importantly, we’ve preserved the entire catalog of posts so that the entire knowledge base that we have built over the last 5 years, 10 months and 25 days (but who’s counting) is still available.  It’s all still there for you, including the almost 500 eDiscovery case law posts covering over 330 cases.

Naturally, when you migrate posts and change layouts, there are going to be a few hiccups.  So, if you see a page that has formatting issues, missing images or get an error when trying to navigate to a particular page, please feel free to drop me a line at daustin@cloudnine.com and let me know about it.  I would appreciate it.

By the way, this redesign is part of a larger redesign of our overall company site at CloudNine to better align our message with the offerings we provide (don’t worry, those haven’t changed).  We’ve redesigned our site to make it easier to get information about us, with a lot more information accessible from the main page.  So, whether you want to understand what we do, understand the professional services we provide, get a sense of some of the clients we’ve assisted and supported, find out about our news and events, find out what clients are saying to us or get to our blog (obviously!), you can get that information from the main page.  Of course, you can also get a free trial of our software.  Navigation to other areas is more intuitive as well.

Even our default domain has changed!  Our new site is cloudnine.com/ – we’re The eDiscovery Automation Company! (our old url – www.cloudnincloudnine.comm – still works too).  And, it looks sharp!  (at least we think so…)

A lot of hard work has gone into the site over the past several months from strategic planning to design to creating a pilot site for demonstration at the ACEDS conference this year to actual development of the new site.  Thanks to all who helped make this site happen and provided feedback along the way, from media members to clients, friends and other advocates.  We also want to thank industry analysts like Gartner, Blue Hill Research, Inside Counsel, 451 Research and KM World for their coverage this year as well – we really appreciate it!

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