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eDiscoveryDaily

eDiscovery Best Practices: The Rest of the Team
 

When beginning a new eDiscovery project, it's important to start by estimating the various tasks that will need to be performed and the type of personnel that will be needed. As the project unfolds, the tasks required to complete it may change, so it is important to revisit the project tasks and assignments to determine whether additional personnel are needed or if you can cut back. Yesterday, we began discussing the types of roles that could be associated with a typical eDiscovery project, here are some more:

Processing Personnel: After your team has identified and collected the ESI, it will usually be necessary to process that ESI with one or more software applications to prepare the data for searching and review to reduce or cull the data volume (such as an early case assessment tool like FirstPass®, powered by Venio FPR™) and limit review to the most highly relevant documents. There are several tools and/or service providers available to process your ESI; it’s simply a matter of selecting the best tool(s) for your organization. For each case, key decision makers on the team will need to evaluate the specific needs of that case to determine whether additional software or an outside vendor is needed and select the appropriate software to license and/or vendor to engage, if so.

Document Review Personnel: After identifying, collecting and processed the ESI, it needs to be reviewed by qualified review personnel to at least determine if it is responsive to the production request from opposing counsel and if it should be withheld due to a claim of privilege. Depending on the case, the ESI may need to be reviewed for other reasons or the review for responsiveness and/or privilege may be more in-depth.  Usually, the reviewers are licensed attorneys; though, experienced paralegals are used in some cases. Either way, they will require training and guidance regarding the expectations of their job in general, receive instructions on the specific review project which they are working on, and be properly trained on use of the selected review application.

Hosting Provider: Depending on the case, you may use a hosting provider for the ESI from as early as collection through production. Large volume of ESI to be processed and reviewed, requirement to distribute review tasks across personnel who may be in different geographical locations, and the arrangements between the parties concerning the method and format of production are factors for deciding to use a hosting provider and also for selecting the desired provider.

Attorney(s): Did you think I forgot the attorneys?  Of course, potentially complicated legal questions and issues arise in just about any discovery project, so you need an attorney who understands the legal rules and complexities associated with discovery of ESI. If the lead attorney doesn’t have the requisite knowledge in this area, it may be necessary to add an attorney with specialized eDiscovery knowledge to the team to provide advice and coordination on discovery issues.  Many corporations have designated attorneys or paralegals on their in house legal staff who work on all eDiscovery matters; however, some organizations may also use outside eDiscovery counsel to work on discovery-related matters even if they’re not part of the firm representing the organization.

Each case will have unique requirements that affect the make-up and size of the team, so not all of the roles discussed over the past two days will be required for every case and the number of personnel in each role may also vary.

So, what do you think?  Do you estimate the team members needed for your project before it begins?  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: Who’s On Your Team?
 

When beginning a new eDiscovery project, a good place so start is to estimate the various tasks that will need to be performed and identify the type of personnel that will be needed. Every project is different and unique, so the requirements of each project must be assessed. As the project unfolds, the tasks required to complete it may change – not just in terms of tasks added, but also tasks removed if the work is deemed to be unnecessary.  So, it is important to revisit the project tasks and assignments to determine whether additional personnel are needed or if you can cut back. Here are the types of roles that could be associated with a typical eDiscovery project:

Client Contact(s): It’s important for the client to be involved in the process, so the team should include at least one client representative that can serve as the link between the internal and external teams, providing guidance on internal company workings and contact personnel. Typically, the client contact is from the in-house legal department, usually either a paralegal (to handle routine tasks) or an attorney (to discuss issues and coordinate decision making).  When preservation and collection are required, the client contact(s) generally assist with litigation hold procedures, locating and collecting ESI, and conducting interviews of custodians. It is up to the client contact(s) to involve key managers and custodians as needed to provide guidance during this process.

IT Personnel: When responding to requests for ESI, let’s face it – you need your trusty geek.  Or geeks.  It’s important to include personnel who understand technical details about the client’s various computer systems and data.  Depending on the case, you need one or more individuals who understand any and all of the above: email and email archiving, storage of employee ESI, servers, clients, intranets, and databases. It’s typical for IT personnel in larger organizations to specialize; for example, to have one or more that is more knowledgeable about structured data (i.e. database programs) while others may understand and have access to email systems. 

IT personnel should be involved in all issues related to the technology for the responding party to increase efficiency and optimize the approach to each new case. For many corporations, this is typically one or more individuals already employed as a member of the IT staff.  It’s important for IT personnel to have at least a basic understanding of the legal processes and requirements of discovery.  If they don’t have that, it may be necessary to provide some training before a case arises or employ an outside consultant.

Forensic Collection Personnel: In some cases, it’s necessary to perform forensic analysis on various types of ESI (or at least collect the ESI in a forensic manner in the event that’s required). Examples of cases that may require forensic collection of electronic data include internal integrity investigations, situations where fraud and data deletion are suspected (such as trade secret cases) and government civil or criminal investigations. To enable the forensic specialist to testify (if required) to the work that was performed and exactly how it was done, companies often use a vendor not employed by the company or by the outside law firm.

See at least one critical team component missing?  Tomorrow, we’ll talk about the rest of the team.  Same bat time, same bat channel!

So, what do you think?  Do you estimate the team members needed for your project before it begins?  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 Humor: And Now For Something Completely Different…
 

Every now and then, it’s nice to take a break from the regular case law updates, emerging trends reports and best practices tutorials and just have a laugh.  We recently published a two part interview series from LegalTech New York with Ralph Losey, who always has interesting and educational thoughts to share regarding eDiscovery.  Ralph recently published a video post on his excellent blog, e-Discovery Team® entitled How Not to Cooperate in an E-Discovery Conference.

Based on the watermark, it appears that Ralph used XtraNormal to make the video.  XtraNormal enables you to make an animated movie by selecting your animated “actors”, type or record your dialogue, and select a background.  The “actors” sound a bit robotic if you type the dialogue, but that just adds to the humor as the pronunciations and inflections are rather humorous.  Sometimes, they put the emPHASis on the wrong sylLABle.  And, it’s funny to hear them try to pronounce words like “chutzpah”.  🙂

Ralph’s video depicts opposing parties negotiating terms of eDiscovery production, and his attorney representing the producing party is particularly uncooperative.  Complete with applause and a laugh track, the four minute video is guaranteed to amuse anybody that has dealt with discovery negotiations or even works in discovery or litigation support.

Ralph has posted several other videos to YouTube, some of which are educational and others of which (while possibly also being educational) are also fun, including a Star Trek Meets e-Discovery series.

So, what do you think?  Did you get a laugh?  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: eDiscovery Violations Leave Delta Holding the Bag
 

In the case In re Delta/AirTran Baggage Fee Antitrust Litig., 2012 U.S. Dist. LEXIS 13462, 41-43 (N.D. Ga. Feb. 3, 2012), U.S. District Judge Timothy Batten ordered Delta to pay plaintiff attorney’s fees and costs for eDiscovery issues in consolidated antitrust cases claiming Delta and AirTran Holdings, Inc. conspired to charge customers $15 to check their first bag. Noting that there was a “huge hole” in Delta’s eDiscovery process, Judge Batten reopened discovery based on defendants’ untimely production of records and indications that there was overwriting of backup tapes, inconsistencies in deposition testimony and documents, and neglect in searching and producing documents from hard drives.

Plaintiffs asserted that Delta did not conduct a reasonable inquiry to confirm its implicit representations that (1) all of the relevant hard drives had been processed, and (2) there were no missing back-up tapes. Arguing that Delta should have ensured that all sources of discoverable information were identified and searched and searched in the evidence locker, Plaintiffs contended that Delta falsely certified that its discovery responses were correct and complete. As a result, Plaintiffs contended that the case had been “unnecessarily delayed and its costs unnecessarily increased, and the fact that Delta is now producing these documents is immaterial”.

The Court agreed, noting:

“The Court finds that Delta did not conduct a reasonable inquiry. With respect to the collected but unsearched hard drives, Delta has not substantially justified its failure to ensure the drives were run through Clearwell and searched back in 2009. While its counsel did email {Delta’s IT Group} CSIRT a list of custodians whose hard drives should have been loaded onto Clearwell, CSIRT did not respond with confirmation that each listed person’s drive was on the system; CSIRT only stated that files were identified by “user employee id, not by name.” Delta has not shown that it ever confirmed with CSIRT that each hard drive that was supposed to be run through Clearwell actually had been. This oversight is a huge hole in Delta’s electronic discovery process, and Delta has not adequately explained why it did not ensure in 2009 that every collected hard drive was actually processed through Clearwell and searched.”

Judge Batten determined that Delta had violated FRCP 26(g) early disclosure requirements and failed to supplement discovery, justifying sanctions under FRCP 37(c)(1). Ruling that Delta needed to pay plaintiffs’ fees and costs in bringing the discovery motions and for extended discovery activities, Judge Batten strongly suggested that both sides meet and confer to attempt to agree to those fees and costs.  However, Judge Batten found that Delta would not be sanctioned with the exclusion of the late production, because Delta: 1) Informed the Court and Plaintiffs after they discovered the issue; 2) Requested the Court suspend the case schedule; and 3) There was no evidence the Defendants willfully withheld the discovery.

So, what do you think?  Were the sanctions justified?  Or should more sanctions have been applied?  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 Law: Texas Model Order for Patent eDiscovery Now In the Public Comment Phase
 

In a blog post last October, we discussed the new model order proposed by Federal Circuit Chief Judge Randall Rader as a measure against the "excesses" of eDiscovery production. At that time, the "Model Order on E-Discovery in Patent Cases" had been unanimously voted on by the Federal Circuit Advisory Council and, as a result, could significantly alter the way discovery materials are used in such cases.  This version of the model order is included in proposed local rule amendment GO-12-06 for the Eastern District of Texas.  The amendment has been approved by the judges of the district, subject to public comment, the deadline for which is March 23, a little over two weeks from now.

Reviewed by a working group of the Eastern District's Local Rules Advisory Committee at the court's request to determine whether it should be included in the district's local rules, the working group recognized the "substantial work that went into the [Federal Circuit's] Model Order" and used it as its "baseline." The district created a redlined version of the Federal Circuit model order and provides detailed commentary explaining the reasons for the changes to the Federal Circuit model.  It has some fairly significant changes, some of which include:

  • Cost Shifting: Item #3, addressing circumstances for considering cost shifting, was stricken;
  • ESI Production Parameters: A new item #5 has been added to address production parameters, including document image format in TIFF, text-searchable documents, and native files (the way it’s currently written, you can apparently only request native files after receiving a TIFF production, absent agreement of the parties).  This section also notes that backup preservation and collection and preservation from voice mail and mobile devices is not necessary (absent a showing of good cause);
  • Email Production Requests: Item #7, indicating that email production requests will be only propounded for specific issues instead of general discovery, was stricken.  The next item, related to specifics of email production requests was expanded quite a bit to address information to be exchanged prior to email production and also allow one deponent per producing party to determine “the proper custodians, proper search terms, and proper time frame for e-mail production requests”;
  • Email Production Scope: Language was added to indicate that email requests will “identify the custodian, search terms, and time frame”.  It also bumped up the limit from five to eight custodians per producing party for each request and bumped up the limit from five to ten search terms per custodian per party.

It will be interesting to see whether any additional modifications are implemented as a result of the public comment period.

So, what do you think?  Will model orders become popular as a way to limit the eDiscovery in other types of cases?  Are model orders a good idea or are they too limiting? 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: At The Eleventh Hour, Encrypted Hard Drive Is Decrypted
 

In our previous post regarding the case U.S. v. Fricosu, Colorado district judge Robert Blackburn ruled that a woman must produce an unencrypted version of her Toshiba laptop's hard drive to prosecutors in a mortgage fraud case for police inspection.  The woman, Ramona Fricosu, had argued that the Fifth Amendment's privilege against self-incrimination protected her from having to disclose the password to her hard drive, which was encrypted using PGP Desktop and seized when investigators served a search warrant on her home.

In providing his ruling, Judge Blackburn referenced In re Grand Jury Subpoena to Boucher in which a password protected laptop was seized. After an initial magistrate judge ruling finding that the defendant could not be compelled to reveal the contents of his mind (via the password), the grand jury requested (which a Vermont District judge granted) to require the defendant to produce, not the password itself, but rather an unencrypted version of the drive.

While Judge Blackburn ruled that Fricosu was required to provide the government in this case with an unencrypted copy of the Toshiba laptop computer’s hard drive, he also ruled that the government would be “precluded from using Ms. Fricosu’s act of production of the unencrypted contents of the computer’s hard drive against her in any prosecution”.

Still, the defendant appealed.  On February 21st, the 10th U.S. Circuit Court of Appeals refused to get involved, saying Ramona Fricosu's case must first be resolved in District Court before her attorney can appeal.  She would have been required to turn over the unencrypted contents of the drive as of March 1.

However, at the last minute, Colorado federal authorities decrypted the laptop.  “They must have used or found successful one of the passwords the co-defendant (Scott Whatcott) provided them,” Fricosu’s attorney, Philip Dubois, said in a telephone interview.  Dubois said the authorities delivered to him a copy of the information they discovered on the drive, but he said he had not examined it.

So, what do you think?  Will disclosure of the password preclude a later appeal?  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: Perspective on the Amount of Data Contained in 1 Gigabyte
 

Often, the picture used to introduce the blog post is a whimsical (but public domain!) representation of the topic at hand.  However, today’s picture is intended to be a bit instructional.

As we work with more data daily and we keep buying larger hard drives to store that data, one gigabyte (GB) of data seems smaller and smaller.  Today, you can buy a portable 1 terabyte (TB) drive for less than $100 in some places.  Is the GB smaller than it used to be?  Last I checked, it’s still about a billion bytes (1024 x 1024 x 1024 or 1,073,741,824 bytes, to be exact).

From a page standpoint, most estimates that I’ve heard have estimated 1 GB to be 50,000 to 75,000 pages.  Of course, that can vary widely, depending on the file types comprising that GB.  A GB of 1 megabyte (MB) one-page, high-resolution image files will only take about 1,000 pages to equal a GB, whereas a collection of 5 kilobyte (KB) text file and small emails (with minimal attachments) could take as much as 200,000 pages to equal a GB.  So, 50,000 to 75,000 is probably a good average.

A ream of copy paper is 500 pages and a case holds 10 reams (5,000 pages).  So, a GB is the equivalent of 100 to 150 reams of paper (10 to 15 cases), which is enough paper to fill a small truck.  Hence, today’s picture shows a truck full of paper.

There was a Gartner report that re-published Anne Kershaw’s analysis on the cost to manually review 1 TB of data.  Quoting from the report, as follows:

“Considering that one terabyte is generally estimated to contain 75 million pages, a one-terabyte case could amount to 18,750,000 documents, assuming an average of four pages per document. Further assuming that a lawyer or paralegal can review 50 documents per hour (a very fast review rate), it would take 375,000 hours to complete the review. In other words, it would take more than 185 reviewers working 2,000 hours each per year to complete the review within a year. Assuming each reviewer is paid $50 per hour (a bargain), the cost could be more than $18,750,000.”

If it costs $18.75 million to review 1 TB, one could extrapolate that to approximately $18,750 to review each GB.  Dividing by 1,000 (ignoring the 24), that extrapolates to: 75,000 pages / 4 = 18,750 documents / 50 documents reviewed per hour = 375 review hours x $50 per hour = $18,750.  I’ve mentioned that figure to clients and prospects and they almost always seem surprised that the figure is so high.  Then, I ask them how many hours does it take them to review a truckload of paper to determine relevancy to the case?  😉

Bottom line: each GB effectively culled out through technology (such as early case assessment, first pass review tools like FirstPass™, powered by Venio) can save approximately $18,750 in review costs.  That’s why technology based assisted review approaches have become so popular and why it’s important to remember how expensive each additional GB can be.

So, what do you think?  Did you realize that each GB was so large or so expensive?  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: Computer Assisted Review Approved by Judge Peck in New York Case
 

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 on last Friday (February 24), approving of the use of computer-assisted review of electronically stored information (“ESI”) for this case, making it likely the first case to recognize that “computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.”  As noted in our previous blog post about the case, the parties had been instructed to submit draft protocols by February 16th.

After providing a background of the Title VII gender discrimination case, Judge Peck went on to reference his article (Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?) to explain computer-assisted review.  He then detailed the parties’ negotiation of an agreed protocol for the computer-assisted review for this case.  The Court accepted the defendants’ proposal, which included seven iterative “seeding” reviews, but included the following caveat:

“But if you get to the seventh round and [plaintiffs] are saying that the computer is still doing weird things, it’s not stabilized, etc., we need to do another round or two, either you will agree to that or you will both come in with the appropriate QC information and everything else and [may be ordered to] do another round or two or five or 500 or whatever it takes to stabilize the system.”

The opinion also included a section entitled “Further Analysis and Lessons for the Future” in which several, more general topics surrounding computer-assisted review were addressed.  Judge Peck recognized that “computer-assisted review is not a magic, Staples-Easy-Button, solution appropriate for all cases” and noted that “[t]he goal is for the review method to result in higher recall and higher precision than another review method, at a cost proportionate to the ‘value’ of the case” (referenced in the article Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, written by Maura R. Grossman & Gordon V. Cormack).

In his conclusion, Judge Peck noted:

“This Opinion appears to be the first in which a Court has approved of the use of computer-assisted review.  That does not mean computer-assisted review must be used in all cases, or that the exact ESI protocol approved here will be appropriate in all future cases that utilize computer-assisted review.  Nor does this Opinion endorse any vendor … nor any particular computer-assisted review tool.  What the Bar should take away from this Opinion is that computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review.  Counsel no longer have to worry about being the “first” or “guinea pig” for judicial acceptance of computer-assisted review.  As with keywords or any other technological solution to e-discovery, counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI while adhering to Rule 1 and Rule 26(b)(2)(C) proportionality.  Computer-assisted review now can be considered judicially-approved for use in appropriate cases.”

For those in the industry yearning for case law that addresses the approved use of technology assisted review methodologies, Judge Peck’s in-depth discussion of the topic and conclusion appears to address that need.  It will be interesting to see how this case continues and whether additional discussion of the methodology will be discussed in case filings!

So, what do you think?  Is it high time for courts to recognize and approve computer-assisted review or is the court system still not ready for technology based approaches?  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: Craig Ball of Craig D. Ball, P.C., Part Two
 

This is the seventh (and final) of the 2012 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 do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Craig Ball.  A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 750 presentations and papers.  Craig’s articles on forensic technology and electronic discovery frequently appear in the national media, and he writes a monthly column on computer forensics and eDiscovery for Law Technology News called Ball in your Court, as well as blogs on those topics at ballinyourcourt.com. 

Our interview with Craig had so much good information in it, we couldn’t fit it all into a single post.  Yesterday, we published part one.  Enjoy the rest of the interview!

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

Well, I've been coming to Legal Tech for well over a dozen years and ,each year, I think it couldn't possibly become more an eDiscovery conference (as opposed to a general forensic technology conference).  Then, next year, the aisles seem to grow longer and deeper with people providing eDiscovery solutions. 

So I'm just blown away.  I used to toil in this fairly obscure corner of the practice, and it’s now, literally, this whole event.  Walk down these aisles with me, and you'll see it's just one person after another after another offering some kind of eDiscovery tool or service or related product.  That’s also true of the educational sessions – some of which I guiltily helped plan, so the focus on eDiscovery does not come as much of a surprise.  But, remember that the vendors who sponsor these tracks have a hand in the content as well, and they’re the ones insisting, “We want to talk about eDiscovery.  We want to talk about technology-assisted review.”

It's not just because of what they're selling, although, certainly that’s a driver.  It's also what they want to hear about.  It's what their customers want to know more about. 

So, is it inconsistent that I'm saying there's not enough education about eDiscovery, and yet here, they talk of little else?  Other than LegalTech, and a few other events, the need remains to go longer and deeper.  Understanding information technology is a necessity for litigators.  That’s where the evidence lives.  IT is a discipline as broad, deep and complex in its way as the law.  Why then do we expect it should require so much less a dedication of time and effort to become even minimally proficient in information technology than it was to learn the law?

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

For me, this is the year of trying to offer an earlier acquaintance in information technology to lawyers.  I've spent almost thirty years teaching lawyers and judges about forensic technology and helping them get their arms around it.  This year, I returned to teaching law students.  My e-discovery course is offered at the University of Texas School of Law and I’m trying to help the students appreciate that in a very difficult job market, entering the profession with a practical understanding of how to attack an eDiscovery effort is a distinguishing factor in trying to find and keep employment.  It's a crucial skill set, and it's not one they can expect will be handed down to them from older lawyers.

There's just simply no lore to hand down where eDiscovery is concerned, at least not much useful lore.  And so I'm gratified for the challenge, and it's very hard work.  It's much harder to teach law students than it is to teach lawyers for a host of reasons.  The challenge in teaching law students versus lawyers is giving them the crucial context.  Most haven’t much exposure to law practice, so you have to give them more information and explain much more of what you take for granted with lawyers. 

Moving forward this year, I'm also trying to find ways to do more testing of new tools and refine mechanisms for reducing the volume of electronic information, to help lawyers master strategies that will make it easier for them to hit the ground running and take advantage of some of the economies that are within easy reach.  The key is to educate them on “methods” more than “shortcuts”.  I want to show them techniques that they can apply with confidence to speed the process of identification and preservation, as well as help them apply a better and more precise working vocabulary to enable them to communicate with clarity and confidence about ESI.  Competent communication, even more than cooperation, will prove a major contributor to eliminating headaches in eDiscovery.

Thanks, Craig, 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!

eDiscovery Trends: Craig Ball of Craig D. Ball, P.C.
 

This is the seventh (and final) of the 2012 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 do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Craig Ball.  A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 750 presentations and papers.  Craig’s articles on forensic technology and electronic discovery frequently appear in the national media, and he writes a monthly column on computer forensics and eDiscovery for Law Technology News called Ball in your Court, as well as blogs on those topics at ballinyourcourt.com. 

Our interview with Craig had so much good information in it, we couldn’t fit it all into a single post.  So, today is part one.  Part two will be published in the blog tomorrow!

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?

Well, I see several things happening.  I'm gratified that people are starting to become more resigned to the obligation to pursue eDiscovery.  I think we're seeing some better practices, particularly with respect to preservation.

The preservation message is hitting home.  Whether it’s a function of the outsize fear factor prompted by sanctions decisions or whether lawyers and businesses are becoming better informed by virtue of education and dialogue like that here at LegalTech is hard to say.  Regardless, I think the message is starting to seep through that there are  things you must do early on to identify electronically stored information and be sure that it's properly preserved.

As I walk around the show and listen to the programs, I'm amazed by all discussion of Technology Assisted Review or TAR—maybe the worst acronym that industry’s come up with since ECA.  But, they didn't choose Super Human Information Technology, so I guess we should be thankful for small blessings.  I'm sure we'll soon an article mentioning TAR and feathers.

Technology Assisted Review is the use of more sophisticated algorithms—math–and advanced analytic to take replace or supplement the individualized judgment of lawyers' respecting the responsiveness, non-responsiveness and privileged character of documents and data sets.  The notion behind TAR is that we don't need legions of young associates or contract lawyers in darkened rooms staring at screens; instead, the broad distinctions between what is most likely to be relevant and what is not will be handled robotically.  It’s floated as a more palatable, more affordable alternative to poorly-chosen key words thrown at massive data volumes–a more intelligent, more intuitive tool that does the job in a way that’s no worse than human beings, hopefully somewhat better, and in any case, for a lot less money.  That is the dream, and it’s coming closer to a reality..

But the realization out there is spotty.  Expectations are unrealistic and marketing is overheated, but we are seeing some enthusiasm amidst the skepticism.  And, I think that trend is certainly going to continue, at least as a marketing trend whether it continues as a successfully-integrated technology or not.  For the moment, it’s an option only for those with big budgets, not the rank and file firm.  No surprises there, as eDiscovery has yet to become a process lawyers know how to manage cost-effectively, But they will learn, in time.  Clients, courts and malpractice carriers will leave no option but to learn it.

Which trend(s), if any, haven’t emerged to this point like you thought they would?

Oh, that's an easy one.  That's education.  I am appalled at the dearth of high-caliber educational options available to lawyers in this crucial and very costly corner aspect of the practice.  E-discovery education is still afflicted by the scourge of the one-hour CLE.  You know, where some earnest person’s trotted out for 30, 45 minutes, maybe an hour of introduction to electronic discovery.  That continuing, repeated, cursory treatment of this challenging area is what’s supposed to make us confident and competent.  It doesn't even begin to scratch the surface.

Lawyers are still not learning enough about the information infrastructure of their clients.  They're picking up a few buzz words.  I’ll see it some meet-and-confers.  It's like watching a little kid use a curse word.  This sort of smile creeps across their face when they’ve managed to work the word “metadata” into the conversation.  As though using the term is a talisman–a substitute for actually knowing what they're talking about.

I don't mean to be so dismissive, but it's really gets almost that absurd sometimes.  We don't have enough education.  We don't have enough lawyers starting to get it.  Most channel their energy and ingenuity into look for reasons why they don’t need to know this stuff.  The handful that really do want to learn have precious few places to go short of self-instruction.  We need to change that.

We need a Manhattan Project in this country to help rescue the experienced lawyers and bring them up to speed.  We need a sort of reset, getting all trial lawyers talking about these topics in an intelligent, productive, and perhaps most importantly of all, cost-effective way.

Thanks, Craig, for participating in the interview!

To the readers, just a reminder to stay tuned for part two of our interview with Craig tomorrow!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!