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eDiscoveryDaily

eDiscovery Best Practices: Test Your Searches Before the Meet and Confer
 

One of the very first posts ever on this blog discussed the danger of using wildcards.  For those who haven’t been following the blog from the beginning, here’s a recap.

A couple of years ago, I provided search strategy assistance to a client that had already agreed upon several searches with opposing counsel.  One search related to mining activities, so the attorney decided to use a wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining”.

That one search retrieved over 300,000 files with hits.

Why?  Because there are 269 words in the English language that begin with the letters “min”.  Words like “mink”, “mind”, “mint” and “minion” were all being retrieved in this search for files related to “mining”.  We ultimately had to go back to opposing counsel and attempt to negotiate a revised search that was more appropriate.

What made that process difficult was the negotiation with opposing counsel.  My client had already agreed on over 200 terms with opposing counsel and had proposed many of those terms, including this one.  The attorneys had prepared these terms without assistance from a technology consultant (I was brought into the project after the terms were negotiated and agreed upon) and without testing any of the terms.

Since they had been agreed upon, opposing counsel was understandably resistant to modifying the terms.  The fact that my client faced having to review all of these files was not their problem.  We were ultimately able to provide a clear indication that many of the terms in this search were non-responsive and were able to get opposing counsel to agree to a modified list of variations of “mine” that included “minable”, “mine”, “mineable”, “mined”, “minefield”, “minefields”, “miner”, “miners”, “mines”, “mining” and “minings”.  We were able sort through the “minutia” and “minimize” the result set to less than 12,000 files with hits, saving our client a “mint”, which they certainly didn’t “mind”.  OK, I’ll stop now.

However, there were several other inefficient terms that opposing counsel refused to renegotiate and my client was forced to review thousands of additional files that they shouldn’t have had to review, which was a real “mindblower” (sorry, I couldn’t resist).  Had the client included a technical member on the team and had they tested each of these searches before negotiating terms with opposing counsel, they would have been able to figure out which terms were overbroad and would have been better prepared to negotiate favorable search terms for retrieving potentially responsive data.

When litigation is anticipated, it’s never too early to begin collecting potentially responsive data and assessing it by performing searches and testing the results.  However, if you wait until after the meet and confer with opposing counsel, it can be too late.

So, what do you think?  What steps do you take to assess your data before negotiating search terms?  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 Best Practices: Smoking Gun Shoots Blanks, Google Wins Latest Battle in “Smartphone War” with Oracle
 

Despite a significant inadvertent disclosure of information during Google's litigation with Oracle Corp., U.S. District Judge William Alsup last Thursday (May 31) dismissed claims that its Android mobile phone platform infringes Oracle's copyrights relating to the Java computer language.

Oracle had accused Google of infringing the "structure, sequence and organization" of 37 of Java's application programming interface (API) application. Referring to this case as “the first of the so-called smartphone war cases”, Alsup ruled in the 41-page decision that the particular Java elements Google replicated were free for all to use under copyright law, noting: "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API". 

Summarizing the validity of Oracle’s claim, Judge Alsup stated:

“Of the 166 Java packages, 129 were not violated in any way.  Of the 37 accused, 97 percent of the Android lines were new from Google and the remaining three percent were freely replicable under the merger and names doctrines.  Oracle must resort, therefore, to claiming that it owns, by copyright, the exclusive right to any and all possible implementations of the taxonomy-like command structure for the 166 packages and/or any subpart thereof – even though it copyrighted only one implementation.  To accept Oracle’s claim would be to allow anyone to copyright one version of code to carry out a system of commands and thereby bar all others from writing their own different versions to carry out all or part of the same commands.  No holding has ever endorsed such a sweeping proposition.”

Judge Alsup indicated that he was not ruling that Java API packages are free for all to use, stating: “This order does not hold that Java API packages are free for all to use without license.  It does not hold that the structure, sequence, and organization of all computer programs may be stolen. Rather, it holds on the specific facts of this case, the particular elements replicated by Google were free for all to use under the Copyright Act.”

Oracle filed suit against Google in San Francisco federal court in August 2011 claiming that the Android mobile operating system infringed Java copyrights and patents (to which Oracle obtained the rights after acquiring Sun Microsystems in 2010) and once valued damages in the case at $6 billion. In the first phase of the trial, the jury returned a verdict that said Google infringed the structure, sequence, and organization of 37 API packages; however, they deadlocked on Google's affirmative defense that it only made fair use of Java technology and Alsup had not yet ruled on whether the APIs could be copyrighted.  He has now.

Oracle is expected to appeal.

So, what do you think?  Will Oracle appeal and should they do so?  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 Case Law: Court Allows Third Party Discovery Because Defendant is an “Unreliable Source”
 

Repeatedly referring to the defendant’s unreliability and untrustworthiness in discovery and “desire to suppress the truth,” Nebraska Magistrate Judge Cheryl R. Zwart found, in Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., No. 8:10CV365, (D. Neb. May 18, 2012), that the defendant avoided responding substantively to the plaintiff’s discovery requests through a pattern of destruction and misrepresentation and therefore monetary sanctions and an adverse jury instruction at trial were appropriate. 

In this trademark action, Judge Zwart awarded sanctions of extensive discovery costs against a defendant that destroyed discoverable electronic evidence, failed to search for and locate other electronically stored information (ESI), and made false representations in affidavits and in court regarding its efforts to search for this evidence. In addition, she allowed the plaintiff to conduct discovery by contacting directly the defendant’s current and former clients, despite the court’s acknowledgment that such contact could harm the defendant’s business. Finally, Judge Zwart recommended an adverse jury instruction be given at trial.

Throughout a lengthy and contentious discovery process, the defendant claimed that its failure to produce any electronic documents containing the plaintiff’s mark demonstrated that there simply were no such documents. What the court ultimately discovered, however, was that no documents were produced for very different reasons: (1) the defendant appeared to have a virtually nonexistent records retention policy; (2) the defendant recovered its external hard drives from its landlord just before the landlord received a subpoena for the hard drives, leading the landlord to claim he did not possess the files; (3) to “comply” with discovery requests, the defendant had an employee who is not a computer expert conduct a keyword search consisting of one word (“Kiewit”) of the defendant’s files (from her own workstation) for the name of the plaintiff’s mark and recovered only two nonresponsive documents; and (4) the defendant discarded what it claimed was a non-functioning server the same month that it received notice of the plaintiff’s discovery requests.

The court ordered a forensic examination of the defendants’ computer systems that revealed thousands of documents containing the keyword “Kiewit” on its face as well as in its metadata. It also revealed at least one document that had been previously produced was missing from the electronic files, contributing to the evidence of spoliation. In ruling, the court pointed out that “considering Defendant’s very liberal policy of not keeping documents, consolidating their records in one location, or organizing their files, their efforts to locate relevant electronic files were woefully inadequate.”

As a consequence of the defendants’ “obstreperous” conduct, Judge Zwart found sanctions were appropriate, including monetary awards and an adverse jury instruction. She granted sanctions pursuant to its “authority to sanction the misconduct of parties and their attorneys . . . derived from the Federal Rules of Civil Procedure and the inherent power of the court,” as well as its “power to shape the appropriate remedy including default judgment, striking pleadings, an adverse jury instruction, and an award of attorney’s fees and costs” derived from precedent. Judge Zwart noted, “The most severe sanctions are reserved for those litigants demonstrating ‘blatant disregard of the Court’s orders and discovery rules’ [and] engaging in a pattern of deceit by presenting false and misleading answers and testimony under oath in order to prevent their opponent from fairly presenting its case.’”

Furthermore, Judge Zwart found the defendants’ conduct dictated that the plaintiff should be permitted to conduct third-party discovery. The plaintiff argued that it needed to contact the defendants’ clients in an effort to determine whether and how the defendants used the plaintiff’s trademark, whereas the defendants argued that they would suffer “irreparable harm” should the plaintiff reach out to their current and former clients. Despite courts’ general reluctance to allow direct contact with litigants’ clients in intellectual property cases, Judge Zwart here found that the plaintiff showed the clients’ information was “relevant and necessary”; moreover, because “Defendants are simply not a reliable source of information” and they “continue to attempt to use client confidentiality as a means of preventing Plaintiff from discovering relevant information,” the plaintiff’s contact with the clients would be proper.

So, what do you think?  Did the court’s sanctions go far enough or should they have been even tougher?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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 Searching: Don’t Let Stop Words Stop You From Effective Searching
 

When providing searching assistance to my clients and reviewing their proposed list of search terms, one of the considerations I use for evaluating those terms is whether they contain any potential “stop” words that might affect their search results.  Stop words (also known as noise words) are words – such as to, or, not, etc. – which are so common that they are not considered useful in searches. 

Search engines rely on indexes to find information quickly – these indexes are built and updated each time documents are loaded into the database.  To save time, stop words are not indexed and are ignored in indexed searches. The advantage of excluding these words is smaller indexes and quicker indexing and searching.

However, there can be drawbacks to stop words.  One disadvantage is that if your searches are typically for common phrases, you may not be able to search with precision and you may either get additional non-responsive results or (even worse) miss some responsive results.

Leave it to Craig Ball (who discussed this during his presentation at Law Tech Texas a couple of weeks ago and also referenced it in this article for Law Technology News) to identify the perfect phrase that illustrates the problems with stop words:

“To Be or Not to Be”

This famous phrase in Shakespeare’s Hamlet would typically not be indexed at all in most search engines – every word in the phrase is a typical stop word.

If a quoted phrase in a search query includes a stop word, the search results may contain results with any word in place of the stop word. For example, a search query for "deed of trust", might contain documents with the phrases "deed and trust" or "deed under trust" in the search results.

Some search tools can provide a list of the stop words used, so that you can adjust accordingly when constructing your searches.  Some will even enable the list of stop words to be modified, so, depending on the requirements of your case, you could be able to remove certain stop words (or add others) to adjust the indexing of the data.  If the search tool allows this, you would want to do so before loading and indexing documents – or ensure that you can reindex the data if documents are already loaded.

When preparing a list of search terms, it’s important to remember that stop words exist and they could affect your search results.  Don’t let them stop you!

So, what do you think?  Have you encountered issues with stop words in your searches?  How have you addressed those issues?  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 Case Law: Spoliation of Data Can Lead to Your Case Being Dismissed
 

In 915 Broadway Associates LLC v. Paul, Hastings, Janofsky & Walker, LLP, 34 Misc. 3d 1229A (N.Y. Sup. Ct. 2012), the New York Supreme Court imposed the severest of sanctions against the plaintiffs for spoliation of evidence – dismissal of their $20 million case.

In this case, the plaintiffs, 915 Broadway, sued its former counsel, Paul Hastings LLP, for legal malpractice. The plaintiffs were initially a party to a separate action involving a failed real estate deal, as a result of which a litigation hold letter was issued in April 2008.  When that action was settled, the plaintiffs brought this malpractice suit against its former attorneys in August of 2008, alleging that the defendants failed to adequately instruct them during contract negotiations with a third party to draw on a $20 million line of credit before it expired.

Even though the litigation hold letter from April 2008 was sent to the primary custodians, at least one principal was determined to have actively deleted relevant emails. Additionally, the plaintiffs made no effort to suspend the automatic destruction policy of emails, so emails that were deleted could not be recovered.  Ultimately, the court found that 9 of 14 key custodians had deleted relevant documents. After the defendants raised its spoliation concerns with the court, the plaintiffs continued to delete relevant information, including decommissioning and discarding an email served without preserving any of the relevant ESI.

Citing Zubulake, the court held that “once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold” as the standard for adequate preservation. To implement a sufficient legal hold, a party must also ensure that affirmative steps are taken identify and preserve potentially relevant ESI and oversee organizational compliance with the legal hold.

To establish sanctions, the court noted: “[T]he party seeking sanctions must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a "culpable state of mind"; and (3) the destroyed evidence was "relevant" to the moving party's claim or defense”.

In this case, the court found that:

  1. Joel Poretsky (the principal Australian representative of TRAK Associates, LLC (TRAK), an entity that owns more than 31% of 915 Broadway), “actively” deleted electronic documents related to the transaction “by his own admission”;
  2. The documents were destroyed with a "culpable state of mind" because “they were deleted intentionally and then permanently destroyed beyond any possible recovery either intentionally, or as the result of gross negligence”; and
  3. The evidence destroyed by Poretsky was “likely relevant to Paul Hastings' claims that (1) 915 Broadway and its managing members bore some, if not all, of the responsibility for monitoring the Letter of Credit's expiration date…and (2) 915 Broadway failed to mitigate its damages and voluntarily broke the chain of causation by settling with Normandy for nothing without any investigation”.

As a result, the court granted the defendants’ motion to dismiss the case and also awarded reimbursement of its attorney's fees and costs incurred in filing the motion.

So, what do you think?  Was case dismissal appropriate or was it too harsh a sanction?  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 Case Law: Inadvertent Disclosure By Expert Waives Privilege
 

In Ceglia v. Zuckerberg, No. 10-CV-00569A(F), (W.D.N.Y. Apr. 19, 2012) (the case where Paul Ceglia is suing claiming 84% ownership of Facebook due to an alleged agreement he had with Mark Zuckerberg back in 2003), New York Magistrate Judge Leslie G. Foschio ruled that an information technology expert’s inadvertent disclosure waived the attorney-client privilege where the plaintiff could not show that it (1) took reasonable steps to prevent the disclosure of the e-mail and (2) took reasonable steps to rectify the error once it discovered the disclosure.

This case involved a dispute over the authenticity of a contract, and in seeking assistance to resolve pretrial matters, the plaintiff filed this motion to compel and asserted, among other things, that the attorney-client privilege should protect an e-mail that was inadvertently disclosed to the defendants. The court set forth the standard under Federal Evidence Rule 502(b) that applies to whether an inadvertent disclosure waives a privilege: “the privilege will not be waived if (1) the disclosure is inadvertent; (2) the privilege holder took reasonable steps to prevent disclosure; and (3) the privilege holder took reasonable steps to rectify the error.” Furthermore, “‘the burden is on the party claiming a communication is privileged” to establish that it met these requirements and that “the opposing party will not be unduly prejudiced by a protective order.”

Because the plaintiff failed to “personally supervise” the actions of the information technology expert he had hired, despite that he understandably hired such an expert to assist him while he was out of town, he “also failed to take reasonable steps to prevent the inadvertent disclosure” of the e-mail. Judge Foschio suggested that instead the defendants could have had the expert “first forward any documents” so that the plaintiff “could have reviewed the documents to ensure there w[ere] no extraneous, privileged materials attached.” If the plaintiff needed to oversee the expert in person, the court admonished, he “should have made himself present to do so.”

Judge Foschio also found that the plaintiff did not take reasonable steps to rectify the inadvertent disclosure. Noting that “the delay in seeking to remedy an inadvertent disclosure of privileged material is measured from the date the holder of the privilege discovers [ ] such disclosure,” and that “[g]enerally, a request for the return or destruction of inadvertently produced privileged materials within days after learning of the disclosure is required to sustain this second element,” the court pointed out that the plaintiff not only waited more than two months to try to rectify the error but also offered no explanation for such a lengthy delay.

Moreover, Judge Foschio stated, “Plaintiff has utterly failed to offer any explanation demonstrating that protecting belated protection of the . . . email will not be unduly prejudicial to Defendants.” Thus, because the plaintiff failed to establish any elements of the test required under the evidentiary rules, any privilege that may have attached to the disputed e-mail was waived.

Case Summary Source: Applied Discovery (free subscription required).

So, what do you think?  Should privilege have been waived or should the plaintiffs have been granted their request for the email to be returned?  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 Cautionary Tales: Inadvertent Disclosure Leaves Naked Short Selling Practices Exposed
 

While traveling back from Los Angeles for LegalTech West Coast 2012 (LTWC) this week, I saw an interesting story on the Above the Law blog (with references to The Economist, DeepCapture and Rolling Stone) regarding a litigation blunder committed by a major law firm on behalf of a major client, inadvertently disclosing an unredacted version of a sensitive document.

The California office of Morgan Lewis handling high-profile litigation for Goldman Sachs accidentally released an unredacted version of a document that the firm and its clients have spent years trying to keep secret.   Overstock.com sued Goldman Sachs (as well as Merrill Lynch and also other banks now no longer involved in the case), claiming that the banks caused its stock to fall through the practice of “naked” short selling (which is selling stock you don’t have and didn’t borrow, creating an artificial supply of stock shares).  The suit was dismissed by a California judge, who ruled that not enough of the alleged wrongdoing happened in the state.  According to The Economist:

“That was how things stood until the end of last week, when the defendants’ lawyers sent their opposition to a plaintiffs’ motion to the other parties in the case. One of the exhibits attached to this, presumably inadvertently, was an unredacted version of an earlier filing by Overstock, opposing the defendants’ motion to seal papers. Within this exhibit is an intriguing six-page section, “Facts Defendants Improperly Seek to Seal” (pages 14-20 of this), containing excerpts of e-mails written by Goldman and Merrill employees.”

According to DeepCapture, the responsible lawyer is alleged to be Joseph Floren, a partner at Morgan Lewis.  Ironically, Goldman and its attorneys have spent a significant amount of time (which means significant money) to keep this information sealed only to have this “blunder” release it publicly.

Matt Taibbi of Rolling Stone provides a commentary regarding information contained in the filing (language warning!), as follows:

“Now, however, through the magic of this unredacted document, the public will be able to see for itself what the banks’ attitudes are not just toward the “mythical” practice of naked short selling (hint: they volubly confess to the activity, in writing), but toward regulations and laws in general.

“Fuck the compliance area – procedures, schmecedures,” chirps Peter Melz, former president of Merrill Lynch Professional Clearing Corp. (a.k.a. Merrill Pro), when a subordinate worries about the company failing to comply with the rules governing short sales.

We also find out here how Wall Street professionals manipulated public opinion by buying off and/or intimidating experts in their respective fields. In one email made public in this document, a lobbyist for SIFMA, the Securities Industry and Financial Markets Association, tells a Goldman executive how to engage an expert who otherwise would go work for “our more powerful enemies,” i.e. would work with Overstock on the company’s lawsuit.”

A copy of the unredacted filing is located here.  Needless to say, clear naming of files as to whether they are redacted or unredacted, along with a thorough quality check, could have prevented this mistake.  I’ll leave it up to you to decide whether the mistake represents a form of karma in exposing these corporate practices.  🙂

So, what do you think?  What procedures do you have in place for avoiding inadvertent disclosures?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will take a break for Memorial Day weekend.  See you on Tuesday!

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: Wednesday LTWC 2012 Sessions
 

As noted yesterday, LegalTech West Coast 2012 (LTWC) 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 Los Angeles area with a number of sessions (both paid and free) available and 69 exhibitors providing information on their products and services, including (shameless plug warning!) my company, CloudNine Discovery, which just announced yesterday release of Version 11 of our linear review application, OnDemand®, and will be exhibiting at booth #216 along with our partners, First Digital Solutions.  Come by and say hi!

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get 21 hits.  More eDiscovery sessions happening!  Here are some of the sessions in the main conference tracks:

10:30 – 12:00 AM:

Information Governance and Information Management

With the volume of electronically stored information (ESI) growing exponentially and the challenges surrounding managing it, protecting it, and developing effective policies are essential. Social media, email, IMs, web pages, mobile devices and the cloud have made a big job even bigger. How much or how little should you collect? How aggressive should you be? How can you be certain your approach and results are defensible?

Speakers are: Richard E. Davis, JD, e-Discovery Solutions Architect & Founder, Litigation Logistics, LLC; Jack Halprin, Head of eDiscovery, Google; Dawson Horn, III, Senior Litigation Counsel, Tyco International and David Yerich, Director, eDiscovery, UHG Legal Department, United Health Group.

The GARP® Principles and eDiscovery

Attendees will hear from experts on the GARP Principles and eDiscovery as well as:

  • Understand the importance of proactive records management through the eight GARP® Principles
  • Revisit the GARP® Principles and learn how their role is magnified by recent case law
  • Learn what to do before eDiscovery: how GARP® precedes and complements the EDRM

Speakers are: Gordon J. Calhoun, Esq., Lewis Brisbois Bisgaard &, Smith LLP; Lorrie DeCoursey, Former Law Firm Administrator and John J. Isaza, Esq., Partner, Rimon P.C.  Moderator: David Baskin, Vice President of Product Management, Recommind.

1:30 – 3:00 PM:

Practical Handbook for Conducting International eDiscovery – Tips and Tricks

This session will present a truly international view on how to conduct global eDiscovery from a practical perspective, including developing proactive global document retention policies and assuring multi-jurisdictional compliance, best practices of global data preservation and collection, successful data migration across jurisdictions, navigating unique cultural and procedural challenges in various global regions, handling multi-lingual data sets as well as strategic positioning of hosting data centers.

Speakers are: Monique Altheim, Esq., CIPP, The Law Office of Monique Altheim; George I. Rudoy, Founder & CEO, Integrated Legal Technology, LLC and David Yerich, Director, eDiscovery, UHG Legal Department, United Health Group.

Litigation Preparedness Through Effective Data Governance

Be prepared. This panel will go through the benefits of data governance in your litigation preparedness and discuss benefits such as:

  • Auto-classification of legacy and newly created content
  • What is email management and is it ready for prime-time?
  • Review the court's findings on the complexities of ESI, including metadata, native formats, back-up tapes, mobile devices, and legacy technology
  • Key questions to ask before outsourcing ESI to the cloud

Speakers are: Lorrie DeCoursey, Former Law Firm Administrator; John J. Isaza, Esq., Partner, Rimon P.C. and Ayelette Robinson, Director – Knowledge Technology, Littler Mendelson.  Moderator: Derek Schueren, GM, Information Access and Governance, Recommind.

3:30 – 5:00 PM:

Managed and Accelerated Review

As costs for review soar and volumes of data multiply at an almost exponential rate, traditional linear review seems to be giving way to new technologies that will enable faster, better, more defensible eDiscovery results. How can you be assured that this new approach will catch everything that needs to be captured? Will human review become obsolete? What do you need to ask when considering this new technology? How should it be incorporated into your overall litigation strategy?

Speakers are: Matthew Miller, Manager, Fraud Investigation & Dispute Services, Ernst & Young; Robert Miller, Founder, Rise Advisory Group, LLC; Former Discovery Counsel, BP; David Sun, Discovery Project Manager, Google.

eDiscovery Circa 2015: Will Aggressive Preservation/Collection and Predictive Coding be Commonplace?

Who's holding back on Predictive Coding, clients or outside counsel? This session will discuss if aggressive preservation/collection of predictive coding will become commonplace as well as:

  • How aggressive should clients be with preservation/collection?
  • How to use effective searching, sampling, and targeting tools and techniques to not over-collect

Speakers are: Gordon J. Calhoun, Esq., Lewis Brisbois Bisgaard &, Smith LLP; Lorrie DeCoursey, Former Law Firm Administrator and Greg Chan, Senior Regional Litigation Technology Manager, Bingham McCutchen LLP.  Moderator: David Baskin, Vice President of Product Management, Recommind.

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 LTWC 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.

eDiscovery Trends: Welcome to LegalTech West Coast 2012!
 

Today is the start of LegalTech® West Coast 2012 (LTWC) and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next two 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 Los Angeles area, come check out the show – there are a number of sessions (both paid and free) available and 69 exhibitors providing information on their products and services, including (shameless plug warning!) my company, CloudNine Discovery, which just announced today release of Version 11 of our linear review application, OnDemand®, and will be exhibiting at booth #216 along with our partners, First Digital Solutions.  Come by and say hi!

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get 19 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

10:30 AM – 12:00 PM:

A "Stormy" Subject…Exploring Cloud-Based eDiscovery

Can your organization better manage costs and increase control over discovery by bringing eDiscovery tools in-house or in-firm? What are the advantages and drawbacks of eDiscovery in the cloud? In this session, the panel will:

  • Explore insourcing v. outsourcing market trends
  • Discuss the pros and cons inherent in cloud/SaaS v. on premises e-discovery software solutions
  • Examine challenges when collecting and preserving discoverable data stored in the cloud

Speakers are: Scott Sachs, eDiscovery Attorney, Atkinson Andelson and Adam Sand, Associate General Counsel, Ancestry.com.  Moderator: Wayne Wong, Managing Consultant, Kroll Ontrack.

1:30 – 3:00 PM:

Under Fire: Defending and Challenging Technology-Assisted Review

Intelligent Review? Predictive Coding? Smart review? Whatever you call it, amidst growing data volumes and dwindling resources, traditional linear document review is quickly going the way of the dinosaur. In this session, the panel will:

  • Explore the "what", "why", and "how" behind  technology-assisted review
  • Discuss cutting-edge opinions from the bench
  • Provide you with tips to help overcome your organization's objections to using intelligent review technology

Speakers are: Tom Werner, Associate, Irell & Manella, LLP; Jeffrey Fowler, Partner, O'Melveny & Myers, LLP and Pallab Chakraborty, Director of eDiscovery, Oracle.  Moderator: Andrea Gibson, Product Director, Kroll Ontrack.

3:30 – 5:00 PM:

Exploring Hot eDiscovery Trends: FRCP Amendments, Social Media, and Emerging Case Law

eDiscovery evolves at the speed of light. If your organization is standing still, you are losing ground. In this session, the panel will:

  • Explore how eDiscovery evolved in 2011, with a look into how it will continue to change in the remainder of 2012
  • Analyze whether potential amendments to the Federal Rules of Civil Procedure are even possible, and what the amendments might entail discuss "hot" trends impacting eDiscovery such as social media.

Panelists are: Ron S. Best, EDD Staff Attorney & Director, Litigation Systems, Munger, Tolles & Olson, LLP and Eric Chan, Associate, O'Melveny & Myers, LLP.  Moderator: Joel Vogel, Vice President, Discovery Products and Services, Kroll Ontrack.

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 LTWC 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.

eDiscovery Trends: For Da Silva Moore Addicts
 

I am getting prepared to head for sunny Los Angeles for LegalTech West Coast shortly, so today I’m getting by with a little help from my friends.  Tomorrow and Wednesday, I’ll be covering the show.  It wouldn’t be a week in eDiscovery without some tidbits about the Da Silva Moore case, so here are some other sources of information and perspectives about the eDiscovery case of the year (so far).  But, first, let’s recap.

Several weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012), Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion making it likely the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case.  However, on March 13, District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional briefing on their February 22 objections to the ruling.  In that briefing (filed on March 26), the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents in this case” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind.

Then, on April 5, Judge Peck issued an order in response to Plaintiffs’ letter requesting his recusal, directing plaintiffs to indicate whether they would file a formal motion for recusal or ask the Court to consider the letter as the motion.  On April 13, (Friday the 13th, that is), the plaintiffs did just that, by formally requesting the recusal of Judge Peck (the defendants issued a response in opposition on April 30).  But, on April 25, Judge Carter issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.

Not done, the plaintiffs filed an objection on May 9 to Judge Peck's rejection of their request to stay discovery pending the resolution of outstanding motions and objections (including the recusal motion, which has yet to be ruled on.  Then, last Monday, Judge Peck issued a stay, stopping defendant MSLGroup's production of electronically stored information.

More News

And, there’s even more news.  As Sean Doherty of Law Technology News reports, last Monday, Judge Peck denied an amicus curiae (i.e., friend-of-the-court) brief filed in support of the plaintiffs' motion for recusal.  For more on the filing and Judge Peck’s denial of the motion, click here.

Summary of Filings

Rob Robinson of ComplexD has provided a thorough summary of filings in a single PDF file.  He provides a listing of the filings, a Scribd plug-in viewer of the file – all 1,320 pages(!), so be patient as the page takes a little time to load – and a link to download the PDF file.  The ability to search through the entire case of filings for key issues and terms is well worth it.  Thanks, Rob!

Da Silva Moore and the Role of ACEDS

Also, Sharon Nelson of the Ride The Lightning blog (and a previous thought leader interviewee on this blog) has provided a very detailed blog post regarding the in depth investigation that the Association of Certified E-Discovery Specialists® (ACEDS™) has conducted on the case, including requesting financial disclosures for Judge Peck for 2008, 2009, 2010 and 2011 (for items including for “honoraria” and “teaching fees.”).  She wonders why “a certification body would want to be so heavily involved in an investigation of a judge in a very controversial case” and offers some possible thoughts as to why.  A very interesting read!

So, what do you think?  Are you “maxed out” on Da Silva Moore coverage yet?  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.