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eDiscoveryDaily

Laura Zubulake, Author of “Zubulake's e-Discovery” – eDiscovery Trends

This is the fifth 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 Laura Zubulake.  Laura worked on Wall Street for 20 years in institutional equity departments and, in 1991, authored the book The Complete Guide to Convertible Securities Worldwide. She was the plaintiff in the Zubulake vs. UBS Warburg case, which resulted in several landmark opinions related to eDiscovery and counsel’s obligations for the preservation of electronically stored information. The December 2006 amendments to the Federal Rules of Civil Procedure were influenced, in part, by the Zubulake case. Last year, Laura published a book titled Zubulake’s e-Discovery: The Untold Story of my Quest for Justice, previously discussed on this blog here and she speaks professionally about eDiscovery topics and her experiences related to the case.

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

{Interviewed the second day of the show}  The crowd is similar in size to last year’s conference.  As always, there is that buzz of activity. There is a diversity of speakers and panels.  The Judge’s panels should be informative as usual,  Ted Olsen’s keynote was an interesting and different introduction to the conference.  I’m also looking forward to the Thursday Closing Plenary Address on cyber security by Mary Galligan from the FBI.  As far as trends are concerned, based on the agenda it is clear that information governance is becoming more of an important topic.  Cyber security is also more of a focus.    Next year, I think cyber security, information governance, and big data will continue to be trends.  I think that by next year, predictive coding will be less of a hot topic.

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

At this point, I think that predictive coding has moved along the learning curve. Personally, I like to use the word algorithms with regard to predictive coding.  For years, algorithms have been used in government, law enforcement, and Wall Street.  It is not a new concept.  I think there will be an increasing acceptance of using them.  A key to acceptance will be to get cases where both parties agree to use algorithms voluntarily (instead of being forced to use them) and both sides are comfortable with the results.

As for the next big thing, as I said earlier,  there will probably be increased attention on information governance.  As the eDiscovery industry matures, information governance will become more of a focus for corporations.  They will realize that, while they have legal obligations (with regard to electronic information), they also need to proactively manage that information. This will not only mitigate costs and risk but also leverage that information for business purposes.  So far, I have found the panel discussions regarding information governance to be most interesting.

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

My goal this past year was to publish my book.  Reviews have been  good and I’m very thankful for that – especially given that I worked on it for several years.  The feedback has been rewarding in two aspects.  First, those in the eDiscovery industry are appreciating the book, because they are getting the background story to the making of the precedents.  Second, and even more rewarding to me personally, are reactions from readers who are not in the in the industry and not familiar with eDiscovery.  They appreciate the human-interest side of the story.  There are two stories in the book.  The broader audience finds the legal story interesting, but finds the human-interest story compelling.  I am also encouraged that readers are recognizing my story is really more about information governance than eDiscovery.  It was my understanding of the value of information and desire to search for it that resulted in the eDiscovery opinions.  As I state in my book, Zubulake I was the most important opinion because it gave me the opportunity to search for information.

Going forward, I will continue to market the book, plan events to market it and work towards getting more reviews in what I would call the broader media, not just in eDiscovery or legal media outlets.  Another one of my goals for this year and next year is to get back into the workforce in the area of information governance.  I think my Wall Street background and eDiscovery experiences are a perfect combination for information governance.  I also hope to use my book as a platform for my job search.

Thanks, Laura, for participating in the interview!

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

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

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.

Don Philbin of Picture It Settled – eDiscovery Trends

This is the fourth 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 Don Philbin.  Don is a nationally recognized attorney-mediator and is President and founder of Picture It Settled®, a predictive analytics tool for negotiation.  Holding both a law degree and an MBA, Don mediates individual and class matters, and he teaches courses at Pepperdine Law’s Straus Institute for Dispute Resolution.  He was one of three Texas mediators listed in the 2011 inaugural edition of The International Who’s Who of Commercial Mediation, and he was named the 2011 Outstanding Lawyer in Mediation by the San Antonio Business Journal.   He is an elected fellow of the International Academy of Mediators and the American Academy of Civil Trial Mediators.

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

This is my first LegalTech and I was kind of “bug eyed” about it.  It’s a big show.  Everyone that I’ve talked to tells me this year’s show is bigger than it has been in four years and I rode in the elevator with some of the ALM execs this morning and they were happy to see the increased attendance.  As for some of the highlights of the show so far, I went to yesterday’s keynote and enjoyed hearing Ted Olsen’s speech – he is always interesting.  I also went to a couple of eDiscovery forums that were mainly focused on housing the data and security concerns for the data.  I did walk through the exhibit hall to check out the variety of vendors and clearly most of them appear to be eDiscovery related, though there were some telecom and conferencing vendors.

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

I may not the best one to ask about that since I am not a vendor, but it looks to me like the “next big thing” would be adoption of the predictive coding technology at this point.  It seems as though the court opinions that have come through have validated the technology as acceptable.  A survey on Twitter at one of the sessions found that 48% of respondents have been involved in predictive coding or technology assisted review in the last year and one of the commentators at the session said “this is the bubble”.  So, it seems as though the development for the next year is how far it gets outside “the bubble” in terms of adoption.

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

We’re here to let people know about Picture It Settled, which is a predictive analytics tool in its own right – for the settlement negotiation process.  To support this process, we have collected data for about ten thousand cases – not just the outcomes, but also the incremental moves that people make in negotiation.  Some cases have as few as two or three rounds while others have many more – one case has at least fifty four pain staking rounds of negotiation.  We measure two dimensions of data: the dollar concession for each offer (i.e., the dollar amount each negotiating party moves from one offer to the next) and the elapsed time between the offers.  We know the right number at the wrong time is the wrong number.  People have to get used to the deal and need ample time to ensure that they are getting everything they possibly can from the other side.  Also, negotiations always expand to fit the space available.  Whether it’s deal making in Washington regarding the fiscal cliff, or settlement negotiations for a case, negotiating parties tend to go “right up to the buzzer” to make the deal.

We find that an all-day negotiation will typically take all day, so the question is “how do you pace yourself so that you can get the best deal?”  We have reverse engineered “splines” that separate the settled cases from the cases that ended in impasse. From that, we studied how successful negotiators “let out the string” in a way that kept their opponent engaged and cooperative instead of going competitive and “slamming their briefcase.” So we have developed a planning curve from the successful negotiations that can be applied to the current round.

Also, cases vary in value depending on the venue where they are filed and also by claim type.  For example, people negotiate personal injury cases differently than construction cases.  We collect the demographic data, ask whether there is insurance and the financial size of the negotiating parties.  Each of us have different risk preferences and tolerances. The scenario planning piece enables the lawyers to do a “high/medium/low/zero” assessment of the case, estimating their best case, worst case and in-between scenario. By attaching probabilities to those assessments, scenarios start to develop.  They use that tool to frame a valuation for the case.

Assuming you are going to negotiate the case and, for example, that the weighted average of the scenarios are $1.6 million, the software will plot the curve and suggest to you what you might consider in terms of offers to get from the best case scenario of perhaps $4 million if you are the plaintiff down to $1.9 million or whatever you assess to be your best alternative to a negotiated deal.  The inputs are lawyer driven, requiring their expertise.  So, this is certainly not removing the lawyers from the negotiation process; instead, it is just giving them a “scope on their gun” to “improve their aim” in negotiations.

The third component of the application is the most powerful. Based on early offers, the Settlement Prophet™ will make forecasts resembling “hurricane” projections, which take the data points on each side and project those out as many as fifth rounds to get a sense of where the opposing party might be headed. The darkest intersect point of the hurricane-type cones is the best estimate of where negotiations are headed. Armed with such data, a user can make mid-course corrections.  It is truly a data driven approach to improving your shot in negotiations.

{Editor’s Note: Don provided a demo for me of the software at the show so the comments above reflect that.  For more information about Picture It Settled and to request your own demo, click here.}

Thanks, Don, 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.

Tom Gelbmann of Gelbmann & Associates, LLC – eDiscovery Trends

This is the third 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 Tom Gelbmann. Tom is Principal of Gelbmann & Associates, LLC.  Since 1993, Gelbmann & Associates, LLC has advised law firms and Corporate Law Departments to realize the full benefit of their investments in Information Technology.  Tom has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; in 2011 he and George Socha converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and George Socha 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.

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

{Interviewed the first morning of LegalTech}  The most notable trend I have seen to lead up to LegalTech is the rush to jump on the computer assisted review bandwagon.  There are several sessions here at the show related to computer assisted review.  In addition, many in the industry seem to have a tool now some are promoting it as an “easy” button.  There is no “easy” button and, if I can mention a plug for EDRM, that’s one of the things the Search group was concerned with, so the group published the Computer Assisted Review Reference Model (CARRM) (our blog post about CARRM here).

To help people understand what computer assisted review is all about: it’s great technology and, if well used, it can really deliver great results, save time and save money, but it has to be understood it’s a tool.  It’s not a substitute for a process.  The good news is the technology is helping and, as I have been seeing for years, the more technology is intelligently used, the more you can start to bend the cost curve down for electronic discovery.  So, what I think it has started to do and will continue to do is level off those costs on the right hand side of the model.

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

I think one of the “next big things” which has already started is the whole left side of the model which I would characterize as information governance.  Information governance is on the rise and a lot of people in the industry believe that information governance today might be where electronic discovery was in about 2005 or 2006.  We need a lot of understanding, standards and education on effective approaches to information governance because that’s really where the problems are.  There are significant expenditures by organizations trying to work with too much data and not being able to find their data.  Associated with that, will be technology that will help and I also anticipate a significant increase in consulting services to help organizations develop effective policies and procedures.  The consulting organizations that can get it right and communicate it effectively will be able to capitalize on this aspect of the market.  Related to that, from a preservation standpoint, we have been seeing more software tools to help with litigation hold as more organizations get serious about preservation.

Another big trend is education.  EDRM is involved with the programs at Bryan University and the University of Florida (Bill Hamilton deserves a lot of credit for what is happening there).  I think you are going to see that continue to expand as more universities and educational facilities will be providing quality programs in the area of electronic discovery and perhaps information governance along the way.

The last trend I want to mention is a greater focus on marketing.  From a provider’s standpoint, it seems that there has been a flood of announcements about organizations that have hired a new marketing director, either overall for a specific region (west coast, east coast, South America, etc.).  Marketing is really expanding in the community, so it seems that providers are realizing they really have to intelligently go after business.  I don’t believe we saw that level of activity even two or three years ago.

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

With regard to EDRM, we had a very productive mid-year meeting where we asked our participants to help us plan for the future of EDRM.  As a result, we came up with several changes we are immediately implementing. One change is that projects are going to be much smaller and shorter duration with as few as one to five people working on a particular item to get it done and get it out to the community more quickly for feedback.  One example of that which we discussed above is CARRM.  We just announced another project yesterday which was the Talent Task Matrix (our blog post about it here).  We already have 91 downloads of the diagram and 87 downloads of the spreadsheet in less than a day. The matrix was very good work done by a very small group of EDRM folks.  We also dropped the prices for EDRM participation and there are also going to be additional changes in terms of sponsorships and advertising, so we are changing as we are gearing up for our 10th year.

Also, we’re very excited about the additions we have made to Apersee in the last six months.  One addition is the calendar which we believe is the most comprehensive calendar around for eDiscovery events.  If it is happening in the eDiscovery world globally, it’s probably on the Apersee calendar.  For conferences and webinars, the participating organizations will be listed, with a link back to their profile within Apersee.  We are also tracking press releases related to eDiscovery, enabling users to view press releases chronologically and also see the press releases associated within organization to see what they have said about themselves through their press releases.  These are examples of what Apersee is doing to build the comprehensive view of eDiscovery organizations to show what is happening, what they are doing and what services and products they offer.

Thanks, Tom, 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.

Ray Zwiefelhofer of World Software (Worldox) – eDiscovery Trends

This is the second 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 Ray Zwiefelhofer of World Software (Worldox).  Ray has over twenty years of experience within the technology and legal services market, offering professional, consulting, technology management and product solutions with an emphasis on working with AMLAW 250 & Fortune 500 organizations.  He has founded and served in President/CEO/CIO positions at software startups and as a CTO at a Fortune 500 company.  Prior to joining World Software, Ray was the Founder/CEO of nQueue a global cost recovery company where he patented and spearheaded the change from a hardware-based to software-based cost recovery model. Ray has also worked previously at include the Thomas Kinkade Network, Bowne, Imagineer, Equitrac and Diebold.

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

We felt the show has been terrific.  The traffic has appeared to be of higher quality than normal with many clients wanting a private demo and follow-up. Very typically, a post-review from prior shows included comments of the masses that just swung by to grab a pen or giveaway.  This year’s LegalTech attendees appear to be a more serious decision making audience.  The trends we saw continually popping up during the show included information governance, the cloud and big data.

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

I think the first “next big thing” will be the continued race for mobility and platform flexibility such as cloud computing. Even the largest vendors at the show announced their focus on more cloud computing initiatives. I believe over the coming years, if this trend continues at the pace it has been keeping, there will be less talk about the cloud because prospects will just assume a vendor’s company has a cloud product.  It will be standard, like back when software was ‘network capable.’  Having spent 25 years in this market, I never thought we would see this heavy motivation to move to ‘hosted computing’, but hey, it’s here, so we must embrace it or get left behind!

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

At World Software, we continue to fulfill our vision of anywhere anytime document access, on the platform of our clients’ choice.  I believe long-gone is the day when we as vendors can dictate what the client needs to run our products.  At LegalTech NY, we launched our new GX3 cloud product which completes our suite of offerings, delivering the same technology as our client-server based product (Worldox GX3 Professional,) and our ‘on-premise’ cloud solution (GX3 enterprise) which sits behind the firm’s firewall on their servers. GX3 Cloud is hosted in our data center and is offered for a low monthly fee.

Thanks, Ray, 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.

Stored Communications Act Limits Production of Google Emails – eDiscovery Case Law

In Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors. (N.D.Cal., January 23, 2013), California Magistrate Judge Paul S. Grewal granted much of the defendant’s motion to quash subpoena of Google for electronic communications sent or received by certain Gmail accounts allegedly used by employees of the defendant because most of the request violated the terms of the Stored Communications Act.

The plaintiff alleged that several of its former employees copied the plaintiff’s proprietary source code, left the plaintiff company, and used the code to found the defendant in 2006.  After receiving a production from the defendant, the plaintiff “suspected that key emails relating to the allegedly stolen code were previously deleted”; as a result, the Federal Court of Australia ordered further discovery.  The defendant filed an ex parte application for judicial assistance pursuant to 28 U.S.C. § 1782 to serve a subpoena upon Google for documents to be used in the foreign proceeding, which was granted.

The plaintiff submitted two requests to Google, as follows:

  • “Request One: Documents sufficient to identify the recipient(s), sender, subject, date sent, date received, date read, and date deleted of emails, email attachments, or Google Talk messages that contain either of the terms ‘PGP’ or ‘Optiver’ (case insensitive) sent or received between January 1, 2006 and December 31, 2007” for selected email addresses; and
  • “Request Two: Documents sufficient to show the recipient(s), sender, subject, date sent, date received, date read, and date deleted of emails, email attachments, or Google Talk messages sent or received between November 3, 2005 to December 31, 2009 that were sent to or from” selected email addresses.

The defendant moved to quash the subpoena.

Judge Grewal noted that “it is well-established that civil subpoenas, including those issued pursuant to 28 U.S.C. § 1782, are subject to the prohibitions of the Stored Communications Act (‘SCA)”, which was passed in 1986.  The SCA prohibits service providers from knowingly disclosing the contents of a user’s electronic communications.

Judge Grewal ruled that the plaintiff’s “Request One is invalid because it seeks disclosure of the terms ‘Optiver’ and ‘PGP’” and granted the defendant’s motion to quash that request.  As for Request Two, Judge Grewal ruled that it “violates the SCA insofar as it seeks the subject of the communications, but the remainder is permissible.”  Therefore, he ruled that Google was required to provide only the following: “Documents sufficient to show the recipient(s), sender, date sent, date received, date read, and date deleted of emails, email attachments, or Google Talk messages sent or received between November 3, 2005 to December 31, 2009 that were sent to or from the email addresses listed”.

So, what do you think?  Was the correct information excluded due to the SCA?  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.

Brad Jenkins of CloudNine Discovery – eDiscovery Trends

This is the first 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 Brad Jenkins of CloudNine Discovery.  Brad has over 20 years of experience as an entrepreneur, as well as 14 years leading customer focused companies in the litigation support arena. Brad also writes the Litigation Support Industry Blog, which covers news about litigation support and e-discovery companies’ funding activities, acquisitions & mergers and notable business successes. He has authored many articles on document management and litigation support issues, and has appeared as a speaker before national audiences on document management practices and solutions.  He’s also my boss!   🙂

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

Well, clearly the technology assisted review/predictive coding wave is the most popular topic here at the show.  I think I counted at least six sessions discussing the topic and numerous vendors touting their tools.  And, this blog covered it and the cases using quite a bit last year.  I’m sure you’ll hear that from a lot of the folks you’re interviewing.

Another trend that I’m seeing is integration of applications to make the discovery process more seamless, especially the integration of cloud-based collection and review applications.  We have an alliance with BIA and their TotalDiscovery legal hold and collection tool, which can export data into our review application, OnDemand®, which our clients are using quite successfully to collect data and move it along the process.  I think the “best of breed” approach between an application that’s focused on the left side of the EDRM model and one that’s focused on the right side is an approach that makes sense for a lot of organizations.

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

I’m not sure that I see just one thing as the “next big thing”.  I certainly see the continued focus on integration of applications as one big thing.  Another big thing that I see is a broadening acceptance of technology assisted review from more than just predictive coding.  For example, clustering similar documents together can make review more efficient and more accurate and we provide that in OnDemand through our partnership with Hot Neuron’s Clustify™.

Perhaps the biggest thing that I see is education and adoption of the technology.  Many lawyers still don’t actively use the technology and don’t find the applications intuitive.  We’ve worked hard to make OnDemand easy to use, requiring minimal or no training.  A lot of vendors tout their products as easy to use, but we’re backing our claim with our free no risk trial of OnDemand that includes free data assessment, free native processing, free data load and free first month hosting for the first data set on any new OnDemand project.  We feel that we have a team of “Aces” and a hand full of aces is almost impossible to beat.  So, the free no risk trial reflects our confidence that clients that try OnDemand will embrace its ease-of-use and self-service features and continue to use it and us for their discovery needs.

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

In addition to our integration success with BIA, our partnership with Clustify and our free no risk trial, we’re also previewing the initial release of the mobile version of OnDemand.  The first mobile version will be designed for project administrators to add users and maintain user rights, as well as obtain key statistics about their projects.  It’s our first step toward our 2013 goal of making OnDemand completely platform independent and we are targeting a third quarter release of a new redesigned version of OnDemand that will support that goal.

Thanks, Brad, 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.

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.

Announcing Third Annual LTNY Thought Leader Series! – eDiscovery Trends

The jumping light bulb can only mean one thing: It’s time for another thought leader interview series!

In our efforts to continue to bring our readers perspectives from various thought leaders throughout the eDiscovery community, eDiscoveryDaily has published several thought leader interviews over the nearly 2 1/2 years since our inception.  The last two years at LegalTech New York (LTNY), we were able to conduct interviews with several eDiscovery industry thought leaders and announced the schedule for those interviews after the show.  Click here to see the schedule for last year’s interviews and here to see the schedule for 2011’s interviews with links in each schedule to each interview we conducted.

The LTNY Thought Leader interviews are firmly established as a tradition, as we were able to conduct interviews for the third year in a row with several industry thought leaders!  We’re pleased to introduce the schedule for the series, which will begin next Monday, February 11.

Here are the interviews that we will be publishing over the next few weeks:

Monday, February 11: Brad Jenkins, President and CEO of CloudNine Discovery.  Brad has over 20 years of experience as an entrepreneur, as well as 14 years leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Thursday, February 14: Ray Zwiefelhofer, President at World Software Corp. (Worldox).  Ray has over twenty years of experience within the technology and legal services market, offering professional, consulting, technology management and product solutions with an emphasis on working with AMLAW 250 & Fortune 500 organizations.

Friday, February 15: Tom Gelbmann, Principal Analyst of Gelbmann & Associates and co-founder of the Electronic Discovery Reference Model (EDRM) and Apersee.  Since 1993, Tom has helped law firms and Corporate Law Departments realize the full benefit of their investments in Information Technology.

Monday, February 18: Don Philbin, President and Founder of Picture It Settled®.  Don is a nationally recognized attorney-mediator, holds both a law degree and an MBA, mediates individual and class matters, and teaches courses at Pepperdine Law’s Straus Institute for Dispute Resolution.

Thursday, February 21: Laura Zubulake, Plaintiff in the landmark Zubulake vs. UBS Warburg case.  Laura is also the author of Zubulake’s e-Discovery: The Untold Story of my Quest for Justice, previously discussed on this blog here.

Friday, February 22: Alon Israely, Manager, Strategic Partnerships, Business Intelligence Associates (BIA).  Alon has over seventeen years of experience in a variety of advanced computing-related technologies and currently leads the Strategic Partner Program at BIA.

Monday, February 25: George Socha, President of Socha Consulting LLC and co-founder of the Electronic Discovery Reference Model (EDRM) and Apersee.  As President of Socha Consulting LLC, George offers services as an eDiscovery 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.

Thursday, February 28: Nigel Murray, Managing Director, Huron Legal.  Nigel has been at the forefront of the litigation support and e-Disclosure industry in the UK since 1991. He managed the first e-Disclosure project to go before a UK court in the early 2000’s and has since advised and worked with a large number of clients in the UK, mainland Europe and the Middle East in a range of industry sectors.

Friday, March 1 and Monday March 4 (Two Part Interview): Ralph Losey, Partner and National eDiscovery Counsel for Jackson Lewis, LLP.  Ralph is also an Adjunct Professor at the University of Florida College of Law teaching eDiscovery, a prolific author of eDiscovery books and articles, the principle author and publisher of the popular e-Discovery Team® Blog and the creator of the Electronic Discovery Best Practices (EDBP.com) model.

Wednesday, March 6 thru Friday, March 8 (Three Part Interview): Craig Ball, Law Offices of Craig D. Ball, P.C.  Craig has delivered over 600 presentations and papers to continuing legal and professional education programs throughout the United States.  Craig’s articles on forensic technology and electronic discovery frequently appear in the national media.  He also writes a monthly column on computer forensics and eDiscovery for Law Technology News and publishes a blog called “Ball in your Court“.

Thanks to everyone for their time in participating in these interviews, especially during a busy LegalTech week!

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 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.

Waste Management Wants to Throw Away the Metadata – eDiscovery Case Law

In the case In Re: Waste Management of Texas, Inc., No. 06-12-00097-CV (Tex: Court of Appeals, Sixth Dist., Jan. 18, 2013), a Texas appeals court refused to grant Waste Management’s petition for writ of mandamus asks us to direct the trial court to withdraw its order to produce native, electronic format with all metadata.

This antitrust case between competing sanitation companies in Texas has had a lengthy discovery phase.  As noted in the opinion issued by Chief Justice Josh R. Morriss, III:

“In late 2009—in response to an order that compelled the production of various internal business records but reserved for a later decision the question of whether the production must include metadata—Waste Management produced responsive records in the format of its choice, Adobe portable document format an explicit exception in the order, the 2009 production excluded the records’ metadata. In September 2012, the trial court ordered Waste Management to produce similar information, but this time in its native, electronic format with all metadata.”

As a result, Waste Management petitioned for a writ of mandamus asking the 6th District Court of Appeals of Texas to direct the trial court to withdraw its order, claiming that :

  • “the 2012 discovery order requires disclosure of ‘trade secrets and proprietary, confidential information, to a direct competitor.’”;
  • “the order requires production of data outside the relevant geographic area and is thus an overbroad ‘fishing expedition.’”;
  • “(a) that the order is a ‘do over’ that requires Waste Management to review and redact the data a second time, (b) that it requires the production of metadata after metadata was relinquished earlier, (c) that it insufficiently specifies the form in which the data is to be produced, (d) that production in native format makes redaction impossible, and (e) that producing metadata in native format is more costly.”;
  • “the order contradicts an agreed scheduling order entered ten weeks before…to provide data for a time period of only September 1, 2005, through October 31, 2010”; and
  • the opposing party “should be responsible for the costs because a ‘do-over’ is an “extraordinary step”.

The court found that Waste Management “failed to introduce any such evidence” that the discovery order will disclose trade secrets and rejected their various claims, including undue burden claims.  With regard to the claim that the order is a ‘do-over’ and that the opposing party had not previously requested metadata, the court noted previous requests that contained the following instruction “Any and all data or information which is in electronic or magnetic form should be produced in a reasonable manner”.  Citing FED. R. CIV. P. 34(b) which requires “a form or forms in which it is ordinarily maintained or in a reasonably useable form or forms”, the court stated “We conclude Bray’s original instruction that the electronic discovery must be produced in a ‘reasonable manner is the functional equivalent of the Federal ‘reasonably useable form or forms.’”.

So, what do you think?  Was it appropriate to require production of metadata?  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.