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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.

Pro Football Players Aren’t the Only Ones with Talent – eDiscovery Trends

In football, each team member has responsibilities.  For example, the quarterback throws the football (and sometimes changes the plays at the line of scrimmage), the receivers catch the football, the offensive line blocks and the defense tackles the guy with the ball.  Each player has responsibilities that align with their talents.  Likewise, the members of a litigation team have responsibilities that align with their talents.  Now, the Electronic Discovery Reference Model (EDRM) has created a new tool to align talents with their associated tasks.

Last week, EDRM announced the release of the EDRM Talent Task Matrix diagram and spreadsheet. As noted in their press release, the Matrix, collaboratively developed by EDRM’s Jobs Project Team, is a tool designed to help hiring managers better understand the responsibilities associated with common eDiscovery roles. The Matrix maps responsibilities to the EDRM framework, so eDiscovery duties associated can be assigned to the appropriate parties.

The EDRM Talent Task Matrix Spreadsheet is available in XLSX or PDF format.  It shows the EDRM Stage and Stage Area, the Responsibility within each stage, followed by the various positions that have responsibilities within the eDiscovery life cycle, as follows:

  • CXO
  • Senior Attorney
  • Attorney
  • Paralegal
  • Litigation Support
  • Discovery Analyst
  • Document / Data Analysis
  • Forensic
  • Records Management
  • Information Technology
  • Review Lead
  • Review Quality Control

The Matrix shows a “Yes” for each responsibility that each position participates in the responsibility.  There are 130 responsibilities listed in the Matrix, covering the entire EDRM life cycle.

EDRM’s Talent Task Matrix represents the joint efforts of the entire EDRM Jobs Project Team, spearheaded by co-leaders Maria Montoya of Bryan University and Keith Tom. Wade Peterson of Bowman & Brooke LLP led the development of the Talent Task Matrix diagram.

Comments on the EDRM Talent Task Matrix Diagram and the EDRM Talent Task Matrix are now being accepted and can be posted at the bottom of the page here. The comment period continues until February 28.  It’s quite in-depth, so they might have to consider extending it.

Of course, when it comes to football, only one team can apply their talent best to accomplish their task – winning the game!  Congrats to the Baltimore Ravens – winners of Super Bowl XLVII!  Not even a power outage could keep them from accomplishing their goal.

So, what do you think?  Could this Matrix be useful to managing the resources in your litigation project?  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.

eDiscovery Trends: Thursday LTNY 2013 Sessions

As noted Tuesday and yesterday, LegalTech® New York 2013 (LTNY) is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Today is the last day to check out the show if you’re in the New York area with a number of sessions (both paid and free) available and over 225 exhibitors providing information on their products and services, including (shameless plug warning!) CloudNine Discovery™ at booth 2006.

While at the show, we will also be interviewing several industry thought leaders to see what they think are the significant trends for 2013 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 36 hits.  More eDiscovery sessions happening!  Here are some of the sessions in the main conference tracks:

10:30 – 11:45 AM:

The Beginners Guide to Technology Assisted Review

This session is aimed at lawyers or smaller firms who are aware of this innovative trend which is sweeping the legal technology industry. This session is designed to assist you in understanding when to use it. How you can implement it. How to manage the pitfalls and lessons learnt. The pros will be provided in real life examples to ensure attendees can action the learning from this session.

Speakers are: Hon. Ron Hedges, Former US Magistrate Judge; Sarah Jane Gillett, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.

The ROI of Predictive Coding

The rapid increase in the volume and sources of Electronically Stored Information (ESI) has changed how corporate legal departments plan for and react to litigation and eDiscovery. In the past, traditional electronic discovery processes relied on “linear review”, a manual, expensive, time consuming and error-prone process in which teams of contract attorneys reviewed hundreds of thousands or millions of documents one page at a time to determine responsiveness. This traditional linear review process has driven the cost of eDiscovery up dramatically.

To address this spiraling cost, corporate legal departments and their external counsel have begun to embrace Predictive Coding, a disruptive technology that is changing the way legal review is conducted.

In this session industry experts will discuss:

  • What Predictive Coding is and what differentiates it from traditional linear review
  • How the Predictive Coding process improves time to respond as well as accuracy and consistency of results to provide an extremely high return on investment (ROI)
  • How Predictive Coding is forcing the eDiscovery industry to have a discussion of review quality that has not occurred before
  • ROI comparisons between traditional linear review and Predictive Coding for small, medium and large cases

Panelists are: Woods Abbott, Director of Legal Operations, Raytheon; Pam Davis, Senior Discovery Counsel, Google; Steve Berrent, Managing Director, WilmerHale Discovery Solutions, WilmerHale; Scott Milner, Partner, Morgan, Lewis & Bockius LLP.  Moderator: Drew Lewis, eDiscovery Counsel, Recommind.

LegalTech Boot Camp I

In the first session of the three hour intensive LegalTech Boot Camp, Craig Ball and Michael Arkfeld will rapidly take you through the ins and outs of e-Discovery today. This 90 minute session will be an intense look at today’s most essential information, decision making considerations and technology.

Attendees may join either or both sessions. They will receive materials from both Boot Camp I and II and specific time will be set aside for Q&A with session leaders.

Speakers are: Craig Ball, President, Craig D. Ball, P.C.; Michael Arkfeld, Principal, Arkfeld & Associates

Big Data – Big Hype or Big Opportunity?

  • What is Big Data and where did big data come from?
  • Value proposition of Big Data?
  • Market ready or still maturing?
  • Major players and how they are shaping Big Data

Panelists are: Galina Datskovsky, CRM, Ph.D, Senior Vice President, Information Governance, Autonomy, an HP Company; Julie Colgan, CRM, IBM; Eric Hunter, Director of Knowledge, Innovation & Technology Strategies, Bradford & Barthel, LLP; Jason R. Baron, Director of Litigation, National Archives and Records Administration.  Moderator: Barry Murphy, Co-founder and Senior Analyst, eDJ Group, Inc.

12:15 – 1:45 PM:

Big Data in Practice

  • How do you implement Big Data?
  • Does Big Data mean All Data?
  • How is big data being used? (case studies/use cases)
  • Will in-stream analytics lead to knee-jerk management?

Panelists are: Galina Datskovsky, CRM, Ph.D, Senior Vice President, Information Governance, Autonomy, an HP Company; Julie Colgan, CRM, IBM; Eric Hunter, Director of Knowledge, Innovation & Technology Strategies, Bradford & Barthel, LLP; Rich Vestuto, Esq., Director, Deloitte.  Moderator: Barry Murphy, Co-founder and Senior Analyst, eDJ Group, Inc.

1:45 – 3:00 PM:

TAR, Contract Review and Efficiency: Are they Intrinsically Linked?

Many firms are looking to make their clients’ spend go further. The combination of using TAR with an outsourced or managed review can incrementally increase efficiency and deliver time and cost savings. This session will examine the cost, process and structure needed to run a successful managed review – taking advantage of the latest industry learning.

Speakers are: Pallab Chakraborty, Director of eDiscovery, Oracle; Patrick Oot, Co-Founder, Electronic Discovery Institute; Special Counsel, U.S. Securities and Exchange Commission.

Defensible Disposal; If it doesn’t exist I don’t have to review it

Most corporate legal departments are still looking for ways to reduce, or at least stop the growth, of their annual legal budgets. One of the most obvious targets for cost reduction in any legal department is the cost of responding to eDiscovery, including the cost of finding all potentially responsive ESI (electronically stored information), culling it down and then having in-house or external attorneys review it for relevance and privilege.

Many cost reduction strategies have been implemented over the years but those strategies don’t address the real problem; the huge and growing amount of unmanaged and potentially valueless electronic information floating around companies. The straight forward and common sense way to reduce eDiscovery cost (and risk) is to better manage ESI, including disposing of unneeded data that could be subject to an eDiscovery inquiry in the future.

In this session, we will discuss:

  • The cause and effect associated with uncontrolled electronic information growth especially in relation to the eDiscovery process
  • The current state of the art of Information Management technologies, again in relation to eDiscovery requirements
  • How categorization techniques can be used to defensibly and effectively manage and dispose of unneeded data

Panelists are: Cliff Dutton, Senior Vice President, Director of E-Discovery and Vendor Management, AIG; John Rosenthal, Partner, Winston & Strawn LLP; Bennett Borden, Chair, Electronic Discovery & Information Governance Section, Williams Mullen; Dean Gonsowski, AGC / Sr. Director of Business Development, Recommind.  Moderator: Bill Tolson, Senior Product Marketing Manager, Recommind.

LegalTech Boot Camp II

In the second session of the three hour intensive LegalTech Boot Camp, Craig Ball and Michael Arkfeld will continue their rapid take on the ins and outs of e-Discovery today. This 90 minute session will be an intense look at today’s most essential information, decision making considerations and technology. Attendees may join either or both sessions. They will receive materials from both Boot Camp I and II and specific time will be set aside for Q&A with session leaders.

Speakers are: Craig Ball, President, Craig D. Ball, P.C.; Michael Arkfeld, Principal, Arkfeld & Associates

Does Big Data = Big Risk?

  • What are the governance implications of Big Data?
  • Is this the end of records management?
  • What affect will Big Data implementations have on litigation readiness?

Panelists are: Galina Datskovsky, CRM, Ph.D, Senior Vice President, Information Governance, Autonomy, an HP Company; Julie Colgan, CRM, IBM; Jason R. Baron, Director of Litigation, National Archives and Records Administration; Rich Vestuto, Esq., Director, Deloitte.  Moderator: Barry Murphy, Co-founder and Senior Analyst, eDJ Group, Inc.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

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

Wednesday LTNY 2013 Sessions – eDiscovery Trends

As noted yesterday, LegalTech® New York 2013 (LTNY) is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show if you’re in the New York area with a number of sessions (both paid and free) available and over 225 exhibitors providing information on their products and services, including (shameless plug warning!) CloudNine Discovery™ at booth 2006.

While at the show, we will also be interviewing several industry thought leaders to see what they think are the significant trends for 2013 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 34 hits.  More eDiscovery sessions happening!  Here are some of the sessions in the main conference tracks:

10:30 – 11:45 AM:

E-Discovery and the Cloud – A Checklist for Success

What is your organization’s cloud strategy? For all of the benefits of cloud computing – from reduced infrastructure to greater accessibility – new challenges are emerging for the e-discovery process. From preservation to security, legal and IT teams need to weigh the new responsibilities and opportunities available with cloud applications.

To assist in the evaluation process, this session will discuss:

  • Key legal considerations for moving to the cloud, including the differences between public and private clouds
  • Key technical considerations for moving to the cloud, including security, 24/7 access and data privacy
  • Effectively negotiating service level agreements with cloud providers

Panelists are: Joel Jacob, FTI Technology; Caroline Sweeney, Dorsey & Whitney; Greg Buckles, eDiscoveryJournal; Mark Browne, Practice Support Regional Manager – Eastern Region, Paul Hastings.

Are We Here to Bury Search Terms?

“I come to bury Caesar, not to praise him. The evil that men do lives after them; the good is oft interred with their bones.” – William Shakespeare

Many pundits today are suggesting that search terms may be inadequate for locating truly relevant information in litigation. But do search terms still have a place in the e-discovery process? Are we “interring the good” without adequate thought? This session will cover the use of search terms in litigation, as well as discuss using technology assisted review in order to balance both cost and risk in responding to discovery requests in litigation and governmental investigations.

Panelists are: Rob Kidwell, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.; Gail Foster, Baker Botts; Matthew Baker, Bracewell & Giuliani; David Chaumette, Chaumette PLLC; The Honorable Andrew J. Peck, United States Magistrate Judge, Southern District of New York.  Moderator: Carolyn Southerland, Huron Legal.

Creative EDiscovery Problem Solving

There is no right answer. There is no wrong answer. There is only the BEST answer. This session will help you find the best possible solution to your ediscovery problems. In this brainstorm power session, you will:

 

  • Tackle the latest ediscovery problems
  • Develop action plans
  • Discuss meaningful ways to implement solutions

Panelists are: David Yerich, Director of Ediscovery, United Health Group; Martha Harrison, Ediscovery Attorney, Ropes & Gray; Rachel Rubenson, Assistant Vice President – Legal, Barclays.  Moderator: Jonathan Sachs, Regional Manager, Kroll Ontrack.

12:30 – 1:30 PM:

Meaning Based eDiscovery: Case Studies and Lessons Learned from the Use of Predictive Coding and Advanced Analytics

Traditional document discovery and linear review methods are no longer cost effective, let alone practical, for matters of all sizes. Too much valuable staff time and client dollars are sunk in an ocean of email. Join this session to hear best practices and real-life examples from leading law firms and thought leaders on a meaning-based approach to computer assisted review – how it is used today to optimize review and production and help lawyers improve cost and work product quality in the eDiscovery process.

Panelists are: Thomas A. Lidbury, Partner, Drinker Biddle & Reath LLP; Alan Winchester, Partner, Harris Beach PLLC; Jennifer Keadle Mason, Esq., Managing Partner, Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP; George Tziahanas, SVP, Legal and Compliance Solutions, HP Autonomy; Maura R. Grossman, Counsel, Wachtell, Lipton, Rosen & Katz.

2:00 – 3:15 PM:

E-Discovery in 2015 – How Corporations Will Do More with The Right Blend of Lawyers, Economics, Statistics and Software (LESS)

What will predictive coding’s long-term impact be on e-discovery and the legal profession? What will be the right balance of people, processes and technology in a mature and fully optimized e-discovery program? This interactive roundtable discussion will bring together legal professionals, academics, economists and statisticians to share the e-discovery industry roadmap and what corporations and law firms can do today to plan for e-discovery in 2015.

Attendees of this session will learn:

  • The long-term roadmap for e-discovery software development, including predictive coding
  • The key skills and training attorneys will need in order to effectively manage e-discovery, including statistics
  • Advice on how legal teams can plan and prepare for e-discovery in 2015

Panelists are: Joe Looby, FTI Technology; Judge Faith Hochberg, United States District Court for the District of New Jersey; Dawn Hall, FTI Consulting; Daniel Martin Katz, Michigan State University.

The Evolving Role of Analytics

There has been much discussion of the evolution of analytics. For years various analytic tools have been used to QC productions after human review, and now both sides are relying on analytics of various types to find the key documents in a matter. The Da Silva Moore and Kleen Products cases have shown us that parties—and judges – can disagree on the best processes for locating potentially relevant documents. What do the rules require? Are parties obligated to be transparent in their processes to show that their methods are reasonable? If the standard is reasonableness, what does the reasonable standard require?

Panelists are: Paul Zimmerman, Christian & Small; David Chaumette, Chaumette PLLC; Hon. Ron Hedges, Former US Magistrate Judge; Sarah Jane Gillett, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.  Moderator: Carolyn Southerland, Huron Legal.

A Live Simulation: TAR, CAR, IRT, Predictive Coding

This teaching exercise will involve audience participation so be ready to take part in this revolutionary experience. Your assistance categorizing documents, debating defensibility and more will help mold future TAR thinking.

Panelists are: Ralph Losey, Partner, Jackson Lewis; Jason R. Baron, Director of Litigation, National Archives and Records Administration.  Moderator: Chris Wall, Senior Director, Kroll Ontrack.

3:45 – 5:00 PM:

Advice from Counsel: Trends that Will Change E-Discovery (and what to do about them now)

For the fourth consecutive year, corporate counsel of Fortune 1000 companies are sharing their thoughts on e-discovery, and this year the focus is on the evolving trends that will impact the legal industry for years to come. From incorporating analytics for greater legal review productivity, to effectively managing a “Bring Your Own Device” (BYOD) workplace environment, attend this session to learn about where e-discovery is going, and what you can do today to better prepare for these changes.

Discussion topics to include:

  • The legal and technical ramifications of a Bring Your Own Device (BYOD) environment
  • The role of analytics in improving legal review
  • Going on offense against Big Data
  • The future of information governance

Panelists are: Ari Kaplan, Ari Kaplan Advisors; Sophie Ross, FTI Technology; Mai Pham Robertson, Fannie Mae; Vincent Miraglia, Chief Counsel for Litigation, International Paper; Daniel Boland, Associate, Pepper Hamilton LLP.

Will Technology Assisted Review Save Money?

The studies comparing other methods of search to technology assisted review (predictive coding) show that the use of TAR results in the identification of fewer non-relevant documents and a larger percentage of potentially relevant documents compared to methods such as keyword search. So why do we assume that the use of TAR will result in cost savings? Will there really be less data to go to human review, or can human review be avoided? Are further analytics required?

Panelists are: Ignatius Grande, Hughes Hubbard & Reed LLP; Sarah Jane Gillett, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.; Paul Zimmerman, Christian & Small; Rob Kidwell, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.  Moderator: Hon. Ron Hedges, Former US Magistrate Judge.

A Panel of Experts: A Candid Conversation

A panel of expert judges and lawyers will discuss cutting edge ediscovery challenges. Bring your questions for prestigious members of the bench and bar.

Panelists are: Honorable Lisa Margaret Smith, United States Magistrate, Southern District of New York; Honorable James C. Francis, United States Magistrate, Southern District of New York; Honorable Frank Maas, United States Magistrate, Southern District of New York.  Moderator: Anthony J. Diana, Partner, Mayer Brown.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

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

Welcome to LegalTech New York 2013! – eDiscovery Trends

Today is the start of LegalTech® New York 2013 (LTNY) and, for the third year in a row, eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next three days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the New York area, I encourage you to check out the show – there are a number of sessions (both paid and free) available and over 225 exhibitors providing information on their products and services, including (shameless plug warning!) CloudNine Discovery™ at booth 2006.

While at the show, we will also be interviewing several industry thought leaders to see what they think are the significant trends for 2013 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 65 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

10:30 – 11:45 AM:

eDiscovery 3.0: Emerging Practices

Advances in technology continue to change the way eDiscovery is performed. Most notably, predictive coding, or “technology assisted review,” is becoming more widely accepted as part of the document review process. There continue to be questions about how it should be used, what level of disclosure is required, and the practical impact that it will have on the eDiscovery workflow. In addition, the strategies, implications, and challenges for predictive coding are still being addressed, prompting a reconsideration to a quality control approach. This presentation will offer several strategies for improving quality control while using predictive coding for document review.

Presented by: Manfred Gabriel, Forensic Principal, KPMG LLP.

Risk and Reward in the Cloud: Case Law and Cost Savings

As more organizations opt for cloud-based solutions to lower costs or meet stringent privacy and security requirements, questions on collection, legal jurisdiction, and privacy are beginning to arise.? This session explores emerging case law around the cloud and covers topics such as data ownership, multi-tenanted environments, and cross-border litigation.?? You’ll further learn how cloud computing can provide new levels of security, collaboration, agility, speed, and cost savings, while defensibly enforcing comprehensive information governance.

Panelists are: Ken Rashbaum , Esq., Principal, Rashbaum Associates, LLC; Tim Carroll, Partner, Perkins Coie’s Commercial Litigation Practice.  Moderator: George Tziahanas, SVP, Legal and Compliance Solutions, Autonomy, an HP company.

Statistical Sampling to Enhance & Defend Your E-Discovery Practice

Although the complexities of statistics may seem daunting to many lawyers, statistical sampling is fast becoming essential to the discovery process. In e-discovery, statistical sampling can help increase confidence, reduce cost and improve defensibility. But the advantages of sampling are rarely realized, simply because most lawyers are not statisticians. This panel will discuss what in-house counsel needs to know about statistical sampling in e-discovery matters, including:

  • The basics of statistical sampling
  • Why in-house counsel should consider incorporating statistical sampling into the e-discovery process
  • Opportunities to use statistical sampling
  • Key decisions counsel must make when using statistical sampling

Panelists are: Pallab Chakraborty, Director of eDiscovery, Oracle; Gordon V. Cormack, Professor at the David R. Cheriton School of Computer Science, University of Waterloo; Maura R. Grossman, Counsel, Wachtell, Lipton, Rosen & Katz; Jim Wagner, Chief Executive Officer, DiscoverReady LLC.  Moderator: Maureen O’Neill, Vice President of Discovery Strategy, DiscoverReady LLC.

Cooperation: Choosing Your Battles

Mock hearing format

Many feel that protracted discovery battles waste time for no purpose. This session will provide attendees with an understanding of which disagreements to resolve with cooperation, and which are worth fighting on behalf of your client.

Panelists are: Anne Kershaw, Founder, A. Kershaw, P.C., [Role: Attorney]; Gail Gottehrer, Partner, Axinn, Veltrop & Harkrider LLP, [Role: Attorney]; David J. Waxse, United States Magistrate Judge, District of Kansas.  Facilitator: Brooke J. Oppenheimer, eDiscovery Attorney, Axinn, Veltrop & Harkrider LLP.

12:30 – 1:30 PM:

Facing the Cliff: Can Proportionality Avert the eDiscovery Crisis?

Proportionality has been touted by industry cognoscenti as the bridge over the chasm of troubling eDiscovery disputes. Despite the hype, many doubt that proportionality can prevent courts, clients or counsel from plummeting into the abyss of spiraling costs and lengthy delays that often characterize discovery. For example:

  • Can predictive coding facilitate proportional discovery when lawyers are unwilling to share their training set of documents?
  • Should proportionality standards apply to the preservation of ESI to help address the high costs of retaining so much data?
  • Will the proportionality rule ever be used to rein in lawyers and judges that have distorted the standard of discovery from reasonableness to perfection?

Please join us as Philip Favro, Discovery Counsel, Symantec Corp. leads a distinguished panel of experts in a lively debate on these issues

Panelists are: Shawn Cheadle, Esq., General Counsel, Military Space, Lockheed Martin Space Systems Co.; Wendy Curtis, Esq., Corporate Counsel, Akin Gump Strauss Hauer & Feld LLP; Hon. Frank Maas, United States Magistrate Judge, Southern District of New York; Ariana J. Tadler, Esq., Partner, Milberg LLP. Moderator: Philip Favro, Discovery Counsel, Symantec Corp.

2:00 – 3:15 PM:

Predictive Coding – Emerging Best Practices

As predictive coding makes its way from the Nerdsville to Main Street, the industry has had to develop new methods and procedures to accommodate and leverage the technology. Similarly, new protocols have been drafted, negotiated and agreed. In this session, proposed guidelines for a predictive coding engagement will be presented. The panel members, drawing on their pioneering experience in predictive coding projects, will discuss and comment on the proposed guidelines, touching on legal and protocol considerations, technological capabilities and constraints, and requirements for statistical validity.

Panelists are: Bennett B. Borden, Chair, Electronic Discovery and Information Governance Section, Williams Mullen; Stephanie A. “Tess” Blair, Partner, Morgan, Lewis & Bockius LLP; Sean M. Byrne, Principal, Byrne Law Group; Thomas C. Gricks III, Partner, Schnader Harrison Segal & Lewis LLP. Moderator: Warwick Sharp, Vice President Marketing and Business Development, Equivio.

Key Ethical Concerns for Lawyers in e-Discovery

Attorneys conducting and supervising extensive electronic discovery find themselves negotiating an evolving ethical landscape that is impacted by ever increasing data volumes, a lack of bright line rules as to how and when those data volumes must be preserved, and constant changes in how the resultant data can be reviewed and produced using traditional and technology assisted review methodologies. This panel will address how lawyers can recognize and comply with their ethical obligations while:

  • Carrying out and supervising the duty to preserve relevant ESI
  • Meeting and conferring on e-discovery issues with the appropriate level of transparency and cooperation.
  • Managing the processing, review, and production of large volumes of documents and information.
  • Employing sophisticated e-discovery software tools and processes including technology assisted review
  • Accessing and using information from social media sites in discovery.

Panelists are: Michelle Spak, Senior Counsel, Duke Energy; M. James Daley, Partner, Daley & Fey, LLP; Jim Wagner, Chief Executive Officer, DiscoverReady LLC; Eric Cottrell, Partner, Parker Poe; Elizabeth Hyon, Assistant Vice President, Legal Barclays Capital; Craig Cannon, Global Discovery Counsel, Bank of America. Moderator: Matt Miller, SVP, Marketplace Leader & IP Practice Group Leader, DiscoverReady LLC.

Interoperability and Data Reuse in the ERA of Big Data and eDiscovery

IBM and HP both make the bold claim that 90% of all data ever created was produced in the last two years. Given the data deluge, corporate legal departments are starting to embrace the concept of interoperability including the need to capture institutional knowledge, seek greater team collaboration, repurpose and reuse data, and promote greater consistency in business process to achieve broader institutional benefits. The growth of data has also led to eDiscovery becoming a key part of the corporate information governance paradigm.

Learn from our experts on how to manage big data. Topics may include:

  • How enterprise information assets can be efficiently accessed and used by corporate legal departments while retaining and leveraging legal work product.
  • How technology and process can be combined to improve team collaboration and guard against institutional memory loss.
  • New technologies beyond clustering and predictive coding that the big data revolution may bring to the eDiscovery toolkit

Predictions on what the big data revolution and convergence with information governance mean for eDiscovery, corporate legal spend and operational efficiency.

Panelists are: David Leone, Esq., Director of LSS, Saul Ewing LLP; Chris Mellen, Digital Forensics PM, Digital Forensics & Advanced Analytics, SAIC; Chad Papenfuss, Litigation Support Manager, FTC; Susan Sparrow, Senior Program Manager General Dynamics Information Technology, HSCD, Justice Programs. Moderator: Anita Engles, VP of Product Marketing, Daegis.

3:45 – 5:00 PM:

The Unforseen: eDiscovery Project Management

The panel will discuss the project-management challenged that result from unforeseen events in e-discovery projects. We will discuss a diverse range of practical topics, including:

  • How do you respond to change in scope after the document review has started?
  • How do you adapt your TAR strategy when instructions change?
  • How to use prioritization, data analysis, and workflow to adopt to changes in budget or time available?

Panelists are: Matt Clarke, Shareholder, Ryley Carlock & Applewhite Document Control Group; Michael Fluhr, Discovery Counsel, Carroll Burdick & McDonough; Meagan Thwaites, Litigation Counsel, Chief Litigation Office, Boston Scientific Corporation; Vincent Miraglia, Chief Counsel, International Paper Company; Renato Opice Blum, CEO and Partner, Opice Blum, Bruno, Abrusio e Vainzof. Moderator: Manfred Gabriel, Forensic Principal, KPMG LLP.

State of the E-Discovery Software & Service Market

For those of us who remember e- discovery in its infancy, we can appreciate the growth of the industry. But no one back then predicted the absolute explosion of data at such mind boggling rates, the challenges it imposes, the changing business models in the fight for survival, progress on the information governance front and the growing pains practitioners and vendors across the board have faced. The analyst community will help us look back at major impacts and make predictions into the future, with their unbiased and pragmatic advice for practicing professionals.

Panelists are: Vivian Tero, Program Director Governance, Risk & Compliance (GRC) Infrastructure, IDC; Karl Schieneman, President, Review Less, LLC; Barry Murphy, Co-Founder, Principal Analyst, eDJ Group, Inc; Laura A. Zubulake, Author of Zubulake’s e-Discovery: The Untold Story of my Quest for Justice.

Predictive Coding for Investigations & Regulatory Matters

Over the last two years, there has been an avalanche of commentary on how automated review and predictive coding tools can and will be used to supplement or replace current e-discovery processes. This year, we’ve seen corporate and law firm clients actually dip their toes into the pool of automation, only to face resistance from opponents, mostly due to lack of understanding of automation.

We will focus our discussion on how to tackle:

  • Your duty to explain your use of automation in various cases, including as a way to organize data in a “produce all” request vs. a targeted production
  • Regulators’ use of Technology Assisted Review (“TAR”) on inbound productions, and how it may affect your outbound strategies
  • Best use cases for using predictive coding in internal investigations such as insider trading, where those under investigation are likely to use code rather than keywords

Panelists are: Marla Bergman, Vice President, Assistant General Counsel, Legal and Internal Audit, Goldman Sachs; Jim Wagner, Chief Executive Officer, DiscoverReady LLC. Moderator: Amy Hinzmann, SVP – Financial Services Practice Group Leader, Marketplace Leader, DiscoverReady LLC.

What is a Quality eDiscovery Process and How Do You Defend It?

The lack of formalized standards in eDiscovery poses challenges with respect to both methodology and defensibility. With the high stakes of litigation, growing expectations on the part of the judiciary, and the increasing frequency of spoliation motions, the components of the eDiscovery process continue to be susceptible to attack. As a result, litigants are often forced to focus on defense of their process, rather than the merits. Moreover, courts are frequently asked to evaluate the reasonableness of a particular process in retrospect, only after a party has made a significant investment in technology and resources. These issues should be considered and faced head on, from the inception of a matter.

This session is designed to provide practical guidance on how to develop a defensible eDiscovery process and how to withstand an attack. It will focus on the most frequently challenged aspects of the eDiscovery process and address such questions as:

  • What aspect of the eDiscovery process are most at risk of challenge?
  • What steps can parties take proactively to avoid an attack on their process?
  • What showing must be made before an eDiscovery process can be attacked?
  • How are these challenges likely to be made in motion practice and case management conferences?
  • What do parties need to submit to the court in defense of their process?
  • What standards govern judicial scrutiny and evaluation?
  • Is there a need for formal process standards and, if so, is it possible to develop them at this point in time?
  • What impact would potential new standards have on the vendor and legal community?

Panelists are: David Horrigan, Esq., Analyst, E-Discovery and Information Governance, 451 Research, a division of The 451 Group; Jason R. Baron, Director of Litigation, National Archives and Records Administration; Lauren Schwartzreich, E- Discovery Counsel, Littler Mendelson; Mira Edelman, Discovery Counsel, Google. Moderator: Doug Stewart, EnCE, Vice President of Technology and Innovation, Daegis.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

eDiscoveryDaily will also be “tweeting” periodically throughout LTNY, so feel free to check out our updates at twitter.com/Cloud9Discovery.

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

Is 31,000 Missed Relevant Documents an Acceptable Outcome? – eDiscovery Case Law

It might be, if the alternative is 62,000 missed relevant documents.

Last week, we reported on the first case for technology assisted review to be completed, Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al, in which predictive coding was approved last April by Virginia State Circuit Court Judge James H. Chamblin.  Now, as reported by the ABA Journal (by way of the Wall Street Journal Law Blog), we have an idea of the results from the predictive coding exercise.  Notable numbers:

  • Attorneys “coded a sample of 5,000 documents out of 1.3 million as either relevant or irrelevant” to serve as the seed set for the predictive coding process,
  • The predictive coding “program turned up about 173,000 documents deemed relevant”,
  • The attorneys “checked a sample of about 400 documents deemed relevant by the computer program. About 80 percent were indeed relevant. The lawyers then checked a sample of the documents deemed irrelevant. About 2.9 percent were possibly relevant”,
  • Subtracting the 173,000 documents deemed relevant from the 1.3 million total document population yields 1,127,000 documents not deemed relevant.  Extrapolating the 2.9 percent sample of missed potentially relevant document to the rest of the documents deemed non relevant yields 32,683 potentially relevant documents missed.

“For some this may be hard to stomach,” the WSJ Law Blog says in the article. “The finding suggests that more than 31,000 documents may be relevant to the litigation but won’t get turned over to the other side. What if the smoking gun is among them?”

However, the defendants, in arguing for the use of predictive coding in this case, asserted that “manual review of the approximately two million documents at issue would be extremely costly while locating only about 60 percent of potentially relevant documents”.  Of course, the rise in popularity of technology assisted review is not only due to the cost savings but also the growing belief of increased accuracy over human review as concluded in the oft-cited Richmond Journal of Law and Technology white paper from Maura Grossman and Gordon Cormack, Technology-Assisted Review in e-Discovery can be More Effective and More Efficient than Exhaustive Manual Review.

Assuming that the defendants’ effectiveness estimate of manual review is reasonable, then it could be argued that more than 62,000 relevant documents could have been missed using manual review at a much higher cost for review.  While we don’t know what the actual number of missed documents would have been, it’s certainly fair to conclude that the predictive coding effort saved considerable review costs in this case with comparable, if not better, accuracy.

There will be several sessions at Legal Tech® New York 2013 starting tomorrow discussing aspects of predictive coding.  For a preview of LegalTech, click here.

So, what do you think?  What do you think of the results?  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.