eDiscoveryDaily Archives

eDiscovery Trends: “Assisted” is the Key Word for Technology Assisted Review

February 14, 2012

As noted in our blog post entitled 2012 Predictions – By The Numbers, almost all of the sets of eDiscovery predictions we reviewed (9 out of 10) predicted a greater emphasis on Technology Assisted Review (TAR) in the coming year. It was one of our predictions, as well. And, during all three days at LegalTech New York (LTNY) a couple of weeks ago, sessions were conducted that addressed technology assisted review concepts and best practices.

While some equate technology assisted review with predictive coding, other technology approaches such as conceptual clustering are also increasing in popularity. They qualify as TAR approaches, as well. However, for purposes of this blog post, we will focus on predictive coding.

Over a year ago, I attended a Virtual LegalTech session entitled Frontiers of E-Discovery: What Lawyers Need to Know About “Predictive Coding” and wrote a blog post from that entitled What the Heck is “Predictive Coding”? The speakers for the session were Jason R. Baron, Maura Grossman and Bennett Borden (Jason and Bennett are previous thought leader interviewees on this blog). The panel gave the best descriptive definition that I’ve seen yet for predictive coding, as follows:

“The use of machine learning technologies to categorize an entire collection of documents as responsive or non-responsive, based on human review of only a subset of the document collection. These technologies typically rank the documents from most to least likely to be responsive to a specific information request. This ranking can then be used to “cut” or partition the documents into one or more categories, such as potentially responsive or not, in need of further review or not, etc.”

It’s very cool technology and capable of efficient and accurate review of the document collection, saving costs without sacrificing quality of review (in some cases, it yields even better results than traditional manual review). However, there is one key phrase in the definition above that can make or break the success of the predictive coding process: “based on human review of only a subset of the document collection”.

Key to the success of any review effort, whether linear or technology assisted, is knowledge of the subject matter. For linear review, knowledge of the subject matter usually results in preparation of high quality review instructions that (assuming the reviewers competently follow those instructions) result in a high quality review. In the case of predictive coding, use of subject matter experts (SMEs) to review a core subset of documents (typically known as a “seed set”) and make determinations regarding that subset is what enables the technology in predictive coding to “predict” the responsiveness and importance of the remaining documents in the collection. The more knowledgeable the SMEs are in creating the “seed set”, the more accurate the “predictions” will be.

And, as is the case with other processes such as document searching, sampling the results (by determining the appropriate sample size of responsive and non-responsive items, randomly selecting those samples and reviewing both groups – responsive and non-responsive – to test the results) will enable you to determine how effective the process was in predictively coding the document set. If sampling shows that the process yielded inadequate results, take what you’ve learned from the sample set review and apply it to create a more accurate “seed set” for re-categorizing the document collection. Sampling will enable you to defend the accuracy of the predictive coding process, while saving considerable review costs.

So, what do you think? Have you utilized predictive coding in any of your reviews? How did it work for you? 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: International Trade Commission Considers Proportionality Proposal

February 13, 2012

As eDiscovery costs continue to escalate, proposals to bring proportionality to the eDiscovery process have become increasingly popular, such as this model order to limit eDiscovery in patent cases proposed by Federal Circuit Chief Judge Randall Rader last year (which was adopted for use in this case). In January, Chief Judge Rader and three members of the Council (Council Chairman Ed Reines of Weil, Tina Chappell of Intel Corporation, and John Whealan, Associate Dean of Intellectual Property Studies at the George Washington University School of Law) presented a proposal to the U.S. International Trade Commission (USITC) to streamline eDiscovery in section 337 investigations.

Under Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337), the USITC conducts investigations into allegations of certain unfair practices in import trade. Section 337 declares the infringement of certain statutory intellectual property rights and other forms of unfair competition in import trade to be unlawful practices. Most Section 337 investigations involve allegations of patent or registered trademark infringement.

The proposal tracks the approach of the district court eDiscovery model order that is being adopted in several district courts and under consideration in others. Chairman Reines described the proposal as flexible, reasonably simple, and easy to administer. Under the proposal, litigants would:

Indicate whether ESI such as email is being sought or not;
Presumptively limit the number of custodians whose files will be searched, the locations of those documents, and the search terms that will be used (if litigants exceed the specified limits, they would assume the additional costs);
Use focused search terms limited to specific contested issues; and
Allow privileged documents to be exchanged without losing privilege.

For more regarding the regarding the USITC proposal to streamline eDiscovery in section 337 investigations, including reactions from USITC members, click to see the USITC press release here.

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

eDiscovery Case Law: Court Rules Exact Search Terms Are Limited

February 10, 2012

In Custom Hardware Eng’g & Consulting v. Dowell, 2012 U.S. Dist. LEXIS 146, 7-8 (E.D. Mo. Jan. 3, 2012), the plaintiff and defendant could not agree on search terms to be used for discovery on defendant’s forensically imaged computers. The court directed each party to submit a proposed list of search terms and indicated that each party would be permitted to file objections to the opposing party's proposed list. After reviewing the proposals, and the defendant’s objections to the plaintiff’s proposed list, the court ruled that the defendant’s proposed list was “problematic and inappropriate” and that their objections to the plaintiff’s proposed terms were “without merit” and ruled for use of the plaintiff’s search terms in discovery.

Plaintiff alleged the defendants formed a competing company by “illegally accessing, copying, and using Plaintiff's computer software and data programming source code systems” and sued defendants for copyright infringement, trade secret misappropriation, breach of contract and other claims. The court ordered discovery of ESI on defendants' computers through use of a forensic process to recover and then search the ESI. In July 2011, the plaintiffs provided a request for production to defendants that requested “any and all documents which contain, describe, and/or relate in any manner to any of the words, phrases and acronyms, or derivatives thereof, contained in the list [provided], irrespective of whether exact capitalization, alternative spelling, or any other grammatical standard was used.” The defendants submitted their own proposed list, which “excludes irrelevant information by requiring precise matches between search terms and ESI”.

Referencing Victor Stanley (previous blog posts regarding that case here, here, here and here), Missouri District Court Judge Richard Webber noted in his ruling that “While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-known limitations and risks associated with them.” Quoting from The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, the court noted that keyword searches “capture many documents irrelevant to the user's query…but at the same time exclude common or inadvertently misspelled instances” of the search terms.

The defendant issued three objections to the plaintiff’s terms, which the court addressed as follows:

Plaintiffs’ Terms would Include an Unreasonable Number of Irrelevant Results: Assuming that the argument was based on a contention by the defendants that the discovery would be overly burdensome, the court noted that the “burden or expense of conducting such a search must be low, and Defendants have presented the Court with no evidence that suggests otherwise.”
Plaintiffs' Terms would Produce Privileged Results: The Court noted that a producing party can create a privilege log to exclude documents that would otherwise fit the search term results.
Some of Plaintiffs' terms will Encompass Only Irrelevant Information: Noting that the defendants' “objection is a conclusory statement, stated without any argumentation or other support”, the Court found that a search of these terms may produce "matter that is relevant to any party's claim or defense”.

The Court also found that the defendants' proposed list would be “problematic and inappropriate” and “would fail to produce discoverable ESI simply because of an inexact match in capitalization or phrasing between a search term and the ESI” and rejected that list, ordering use of the plaintiff’s list for searching.

So, what do you think? Was that the right call, or was the plaintiff’s request overbroad? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Announcing Second Annual LTNY Thought Leader Series!

February 9, 2012

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 1 1/2 years since our inception. Last year 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 with links to each interview we conducted.

It appears that the LTNY Thought Leader interviews have become a tradition, as we were able to conduct interviews again with several industry thought leaders! We’re pleased to introduce the schedule for the series, which will begin next Wednesday, February 15. Something to look forward to after Valentine’s Day!

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

Wednesday, February 15: George Socha, President of Socha Consulting LLC and co-founder of the Electronic Discovery Reference Model (EDRM). 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.

Friday, February 17: Christine Musil, Director of Marketing of Informative Graphics Corporation (IGC). Christine has applied her in-depth knowledge of IGC's products and benefits to marketing initiatives, including branding, overall messaging, and public relations. She has also been a contributing author to a number of publications on archiving formats, redaction, and viewing technology in the enterprise.

Monday, February 20: Jim McGann, Vice President of Index Engines. Jim has extensive experience with eDiscovery and Information Management in the Fortune 2000 sector and has worked for leading software firms that provided financial services and information management solutions.

Wednesday, February 22: Tom Gelbmann, Principal Analyst of Gelbmann & Associates and co-founder of the Electronic Discovery Reference Model (EDRM). Since 1993, Tom has helped law firms and Corporate Law Departments realize the full benefit of their investments in Information Technology.

Friday, February 24: Brian Schrader, Co-Founder and President of Business Intelligence Associates, Inc. (BIA). Brian is an expert and frequent writer and speaker on eDiscovery and computer forensics topics, particularly those addressing the collection, preservation and processing functions of the eDiscovery process.

Monday, February 27: 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 and the principle author and publisher of the popular e-Discovery Team® Blog.

Wednesday, February 29: 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.

eDiscovery Best Practices: Preparing Your 30(b)(6) Witnesses

February 8, 2012

When it comes to questions and potential issues that the receiving party may have about the discovery process of the producing party, one of the most common and direct methods for conducting “discovery about the discovery” is a deposition under Federal Rule 30(b)(6). This rule enables a party to serve a deposition notice on the entity involved in the litigation rather than an individual. The notice identifies the topics to be covered in the deposition, and the entity being deposed must designate one or more people qualified to answer questions on the identified topics.

While those designated to testify may not necessarily have day-to-day responsibility related to the identified topics, they must be educated enough in those issues to sufficiently address them during the testimony. Serving a deposition notice on the entity under Federal Rule 30(b)(6) saves the deposing party from having to identify specific individual(s) to depose while still enabling the topics to be fully explored in a single deposition.

Topics to be covered in a 30(b)(6) deposition can vary widely, depending on the facts and circumstances of the case. However, there are some typical topics that the deponent(s) should be prepared to address.

Legal Hold Process: Perhaps the most common area of focus in a 30(b)(6) deposition is the legal hold process as spoliation of data can occur when the legal hold process is unsound and data spoliation is the most common cause of sanctions resulting from the eDiscovery process. Issues to address include:

General description of the legal hold process including all details of that policy and specific steps that were taken in this case to effectuate a hold.
Timing of issuing the legal hold and to whom it was issued.
Substance of the legal hold communication (if the communication is not considered privileged).
Process for selecting sources for legal hold, identification of sources that were eliminated from legal hold, and a description of the rationale behind those decisions.
Tracking and follow-up with the legal hold sources to ensure understanding and compliance with the hold process.
Whether there are any processes in place in the company to automatically delete data and, if so, what steps were taken to disable them and when were those steps taken?

Collection Process: Logically, the next eDiscovery step discussed in the 30(b)(6) deposition is the process for collecting preserved data:

Method of collecting ESI for review, including whether the method preserved all relevant metadata intact.
Chain of custody tracking from origination to destination.

Searching and Culling: Once the ESI is collected, the methods for conducting searches and culling the collection down for review must be discussed:

Method used to cull the ESI prior to review, including the tools used, the search criteria for inclusion in review and how the search criteria was developed (including potential use of subject matter experts to flush out search terms).
Process for testing and refining search terms used.

Review Process: The 30(b)(6) witness(es) should be prepared to fully describe the review process, including:

Methods to conduct review of the ESI including review application(s) used and workflow associated with the review process.
Use of technology to assist with the review, such as clustering, predictive coding, duplicate and near-duplicate identification.
To the extent the process can be described, methodology for identifying and documenting privileged ESI on the privilege log (this methodology may be important if the producing party may request to “claw back” any inadvertently produced privileged ESI).
Personnel employed to conduct ESI review, including their qualifications, experience, and training.

Production Process: Information regarding the production process, including:

Methodology for organizing and verifying the production, including confirmation of file counts and spot QC checks of produced files for content.
The total volume of ESI collected, reviewed, and produced.

Depending on the specifics of the case and discovery efforts, there may be further topics to be addressed to ensure that the producing party has met its preservation and discovery obligations.

So, what do you think? Have you had to prepare 30(b)(6) witnesses for deposition? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: KPMG Loses Another Round to Pippins

February 7, 2012

As discussed previously in eDiscovery Daily, KPMG sought a protective order in Pippins v. KPMG LLP, No. 11 Civ. 0377 (CM)(JLC), 2011 WL 4701849 (S.D.N.Y. Oct. 7, 2011) to require the preservation of only a random sample of 100 hard drives from among those it had already preserved for this and other litigation or shift the cost of any preservation beyond that requested scope. Lawyers for Pippins won a ruling last November by Magistrate Judge James Cott to use all available drives and Judge Cott encouraged the parties to continue to meet and confer to reach agreement on sampling. However, the parties were unable to agree and KPMG appealed to the District Court.

Last Friday, District Court Judge Colleen McMahon upheld the lower court ruling, noting:

"It smacks of chutzpah (no definition required) to argue that the Magistrate failed to balance the costs and benefits of preservation when KPMG refused to cooperate with that analysis by providing the very item that would, if examined, demonstrate whether there was any benefit at all to preservation.”

“KPMG could have established [that producing all the drives was unnecessary] by producing several hard drives to Plaintiffs and Magistrate Judge Cott. … But KPMG has established nothing of the sort,” McMahon added.

“Even assuming that KPMG’s preservation costs are both accurate and wholly attributable to this litigation — which I cannot verify — I cannot possibly balance the costs and benefits of preservations when I’m missing one side of the scale (the benefits).”

“I gather that KPMG takes the position that the only Audit Associates who are presently ‘parties’ are the named plaintiffs, and so only the named plaintiffs’ hard drives really need to be preserved. But that is nonsense,” she continued. “Under Zubulake IV, the duty to preserve all relevant information for ‘key players’ is triggered when a party ‘reasonably anticipates litigation.’ … At the present moment, KPMG should ‘reasonably anticipate’ that every Audit Associate who will be receiving opt-in notice is a potential plaintiff in this action,” McMahon concluded.

Outten & Golden partner Justin Swartz, representing Pippins, commented after the ruling: "All we're asking for is the chance to look at a few hard drives, find out what's on them, and negotiate a resolution." Steven Catlett, representing Sidley Austin for KPMG, did not provide a comment.

So, what do you think? Was this a ruling against proportionality in eDiscovery or is KPMG’s refusal to provide any hard drives defeating their proportionality argument? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Deadly Sins of Document Review

February 6, 2012

With all of the attention on Technology Assisted Review (TAR) during the LegalTech New York (LTNY) show, you would think that no one is conducting manual review anymore. However, even the staunchest advocates of TAR that I spoke to last week indicated that manual review is still a key part of an effective review process where technology is used to identify potentially responsive and privileged ESI before the manual review process enables the final determinations to be made.

There are “dos” and “don’ts” for conducting an effective manual review. There was an interesting article in Texas Lawyer (via Law Technology News) entitled The 7 Deadly Sins of Document Review by Dalton Young that focuses on the “don’ts”. As review is the most expensive phase of the eDiscovery process and legal budgets are stretched to the limit, it’s important to get the most out of your spend on manual review. With that in mind, here are the seven deadly sins of document review (along with a few of my observations):

Hiring overqualified reviewers: Although there are many qualified lawyers available due to the recent recession, those lawyers often don’t have as much experience as seasoned review paralegals, who are also less expensive and less likely to leave for another offer.
Failing to establish a firm time commitment: If lead counsel doesn’t clearly establish the expected review timeline up front and expect reviewers to commit to that time frame, turnover of reviewers can drive up costs and delay project completion.
Failing to provide reviewers with thorough training on the review tools: Train beyond just the basics so that reviewers can take advantage of advanced software features and training starts with lead counsel. I would adjust this point a bit: Lead counsel needs to become fully proficient on the review tools, then develop a workflow that manages the efficiency of the reviewers and train the reviewers according to that workflow. While it may be nice for reviewers to know all of the advanced search features, full understanding of searching best practices isn’t something that can be accomplished in a single training session and should be managed by someone with considerable experience using advanced searching capabilities in an efficient and defensible manner.
Failing to empower reviewers with sufficient background on the case: Providing reviewers with not just a list of expected key words, but also an understanding of the issues of the case enables them to recognize important documents that might not fit within the key words identified. I would also add that it’s important to have regular “huddles” so that learned knowledge by selected reviewers can be shared with the entire team to maximize review effectiveness.
Failing to foster bonds within the review team: Just like any other team member, reviewers like to know that they’re an important part of the cause and that their work is appreciated, so treating them to lunch or an occasional happy hour can foster a more enjoyable work environment and increase reviewer retention.
Failing to predetermine tags and codes before the project begins: A lead member of the law firm should complete an overview of the discovery to identify the process and establish tags up front instead of “on the fly” as review progresses (even though that tag list will often need to be supplemented regardless how well the upfront overview is conducted). I would add inclusion of one or more subject matter experts in that upfront process to help identify those tags.
Providing reviewers with a too-structured work environment: The author indicates that counsel should “consider providing a relaxed, somewhat self-directed work environment”. The key here is “somewhat”, but flexibility in start and stop work times and break/lunch times can enable you to keep good reviewers who may need some flexibility. Regular monitoring of reviewer metrics will enable the review manager to confirm that reviewer performance is not adversely affected by increased flexibility, or adjust accordingly if the review environment becomes too lax.

So, what do you think? Are there other “deadly sins” that the author doesn’t mention? 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: Burn Your Computer and the Court Will Burn You

February 3, 2012

In Evans v. Mobile Cnty. Health Dept., No. CA 10-0600-WS-C, (S.D. Ala. Jan. 24, 2012), Alabama Magistrate Judge William Cassady granted a motion for sanctions, including an adverse inference instruction, where the plaintiff had burned and destroyed her computer that she used during the time she claimed she was harassed.

Evans sued the Mobile County Health Department alleging reverse discrimination. The court entered a scheduling order that instructed Evans to preserve all relevant information. In discovery, the health department asked Evans for all documents, including electronically stored information (ESI), related to her claims.

Initially, Evans did not produce any documents in response to the defendant's request, but at her deposition, she produced a small number of documents and admitted that she had others, including e-mails. After her deposition, the defendant renewed its request for Evans to produce all ESI in her possession and asked to inspect her personal computer. When the plaintiff did not comply, the defendant filed a motion to compel.

After the motion was filed, Evans' counsel told the defendant that Evans had destroyed her computer. Evans explained that her computer crashed about eight months after her complaint was filed. When she sought help from computer experts, who told her to buy another computer, she burned her computer to destroy the personal information it contained due to the "threat of identity theft." She then bought a new computer. The defendant filed a motion for sanctions and sought dismissal of the case.

Judge Cassady granted the defendant's motion to compel, finding that the plaintiff's claims that she had produced all relevant ESI difficult to believe in light of her deposition testimony and her other discovery violations. Accordingly, Judge Cassady required Evans to produce e-mails from her gmail account and a notebook she referenced in her deposition that contained relevant evidence. The plaintiff also had to produce her new computer for inspection and pay for the defendant's fees and costs in bringing the motion.

Judge Cassady also granted defendant's request for sanctions. In determining the appropriate punishment, he looked first to Eleventh Circuit law, but the court had not set forth specific guidelines for the imposition of sanctions. Therefore, Judge Cassady applied Alabama state law, since it was consistent with general federal spoliation standards. Alabama law requires courts to consider five factors in analyzing a request for sanctions: "(1) the importance of the evidence destroyed; (2) the culpability of the offending party; (3) fundamental fairness; (4) alternative sources of the information obtainable from the evidence destroyed; and (5) the possible effectiveness of other sanctions less severe than dismissal."

Judge Cassady found that Evans had destroyed the evidence in bad faith: her culpability was "excessively high." However, the judge stopped short of dismissing the case. Since the defendant could still defend itself against Evans' allegations, the magistrate judge decided that the court would give the jury an adverse inference instruction at trial. It also awarded defendant its attorneys' fees and costs for the motion.

So, what do you think? Should the case have been dismissed or were the sanctions sufficient? 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).

eDiscovery Case Law: Practicing Law and Discovery Services Companies Don’t Mix

February 2, 2012

At least, not in DC.

Vendors seeking to assist attorneys in offloading substantial portions of discovery-practice need to be careful not to cross the line into the unauthorized practice of law, according to a new ethics opinion by the District of Columbia Bar. On January 12, 2012, the District of Columbia Court of Appeals Committee on the Unauthorized Practice of Law released Opinion 21-12 regarding the “Applicability of Rule 49 to Discovery Services Companies.” This opinion provides guidelines for attorneys and discovery vendors regarding supervision of large-scale document reviews and vendors’ marketing practices, which are intended to prevent the unauthorized practice of law (UPL). Under these guidelines, the role of discovery-service providers in the e-discovery process must be limited to administrative, technical, and logistical tasks. This opinion and these guidelines additionally make clear that the onus of supervising a discovery project rests squarely on the shoulders of the D.C. Bar member who holds the attorney-client relationship with the client.

Rule 49 of the District of Columbia Court of Appeals provides:

No person shall engage in the practice of law in the District of Columbia or in any manner hold out as authorized or competent to practice law in the District of Columbia unless enrolled as an active member of the District of Columbia Bar, except as otherwise permitted by these Rules.

The ‘practice of law’ includes “[f]urnishing an attorney or attorneys, or other persons” to provide legal services. Rule 49(b)(2)(F).

Opinion 21-12 provides the following “principles” to provide guidance regarding “the permissible scope of services that may be performed [by document services companies]” without running afoul of the UPL rules. Opinion, at 7.

First, Rule 49’s UPL rules apply only to the provision of legal services in the District of Columbia. To the extent a discovery provider advertises itself as being able to assist with any discovery project occurring in the district, even if the vendor is not physically located in the district, then Rule 49’s prohibitions apply because such company would be viewed as “holding itself out” as being able to provide legal services in the district. Opinion, at 7–8.

Second, in line with the committee’s prior 1999 Opinion 6-99, contract-attorney companies cannot make the final selection of contract attorneys to staff on a project, nor can the companies provide legal supervision over the contract attorneys. Both of those tasks must be handled by a member of the D.C. Bar with an attorney-client relationship with the client. The company’s role should be limited to the administrative aspects of the review (i.e., finding and interviewing reviewers, handling payroll and taxes, making sure the reviewers show up to work, etc.). A company is allowed to provide and supervise a person doing non-legal work if that person is not identified to the client as a lawyer. Opinion, at 8.

Third, a discovery-service company cannot use broad-based statements in its marketing materials (i.e., that the company is an “end-to-end” vendor or can provide “soup-to-nuts” solutions) without including a UPL disclaimer. This disclaimer must appear on the same page, in the same font, and in proximity to the potentially misleading statement. Statements regarding the legal expertise of the company’s staff also must contain similar disclaimers. Opinion, at 8–9.

Although the committee previously examined Rule 49 and its applicability to legal-services providers in 1999 and 2005, the committee saw fit to re-examine its prior decisions because companies providing discovery services “have dramatically expanded the scope” of their offerings. Opinion, at 4. The committee noted that these companies “offer a host of related services, from e-discovery consulting to database management to the eventual production of documents in litigation,” and that the companies also may “offer the physical space where the document review will take place, computers for conducting the review, and servers for hosting the document review.” Id.

The committee was concerned with the companies’ use of broad language in their marketing materials, including “one-stop shopping” and “comprehensive review and project management,” and about the marketing of companies’ management staff as having legal expertise that would be used in the discovery process. Opinion, at 4–5. Although the committee noted that some services provided by the companies may not “cross the line into legal practice,” such as administrative tasks, allowing discovery companies to make broad-based statements could mislead the public by implying that the companies are providing a legal judgment. Opinion, at 6.

Opinion 21-12 provides clarity to discovery-services vendors by outlining more clearly their role in the discovery process, which is limited to administrative, technical, and logistical functions. The opinion also will assist attorneys overseeing such projects by reminding them of their supervisory role over document reviews.

So, what do you think? Is this a good idea? Should it be adopted in other jurisdictions? Please share any comments you might have or if you’d like to know more about a particular topic.

Source: American Bar Association

eDiscovery Trends: Wednesday LTNY Sessions

February 1, 2012

As noted Monday and yesterday, LegalTech New York 2012 (LTNY) is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show. Last chance to check out the show if you’re in the New York area! The weather is great and there are still several sessions (both paid and free) available and over 225 exhibitors providing information on their products and services.

As noted the past two days, we have been interviewing several industry thought leaders to see what they think are the significant trends for 2012 and, which of those are evident at LTNY. We have conducted several exciting interviews and will announce the series of thought leader interviews after the show and identify when each will be published. Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get 35 hits (short day). Here are some of today’s sessions in the main conference tracks:

10:30 – 11:45 AM:

Technology Assisted Review (TAR): When to Use It and How to Defend It

How do you know whether the case you have before you is an appropriate one for TAR? What do you need to know in order to ensure that your implementation of TAR is defensible?

Judge Andrew Peck has written that computer-assisted coding should be used in those cases where it will help further the goals of FRCP 1 to "secure the just, speedy, and inexpensive" resolution of cases. We will examine this question through the lens of the legal discovery framework that guides parties and courts alike in all federal litigation: the Federal Rules of Civil Procedure. In addition, since the best defense for any search methodology is always agreement between the parties, we will also discuss the Sedona Cooperation Proclamation.

Audience members will leave this session with an understanding of what questions need to be asked and answered to determine when TAR should be a part of the overall litigation strategy and how that decision can be defended.

Panelists are: Maura R. Grossman, Counsel, Wachtell, Lipton, Rosen & Katz; The Honorable Frank Maas, United States Magistrate Judge for the Southern District of New York. Moderator: Ann Marie Gibbs, Esq., National Director of Consulting, Daegis.

Moving from a Reactive to a Proactive Approach in International eDiscovery

The majority of companies in the US are still reacting to eDiscovery requests. However, given the increasing awareness of proactive eDiscovery benefits, more and more are adapting a more aggressive proactive strategy. Companies that operate globally as well as those headquartered outside the US are catching up quick as well, but complexities associated with global litigation readiness make this task infinitely more challenging due to vast differences in local laws in regards to document retention and information management regulations. This session will focus on developing proactive global document retention policies, assuring multi-jurisdictional compliance as well as best practices of global data preservation as well as other proactive techniques assuring success of any global eDiscovery project.

Speaker is: Owen O'Connor, Managing Director, Cernam Online Evidence. Moderator: George Rudoy, Founder & CEO, Integrated Legal Technology, LLC.

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

Panelists are: Julie J. Colgan, CRM, Director, Information Governance, Client Advisory Services, Merrill Corporation; Fred Pulzello, CRM, Board of Directors, ARMA International and George J. Socha, Jr., Esq., President, Socha Consulting. Moderator: Howard Sklar, Senior Corporate Counsel, Recommind.

11:45 AM – 12:45 PM:

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

Panelists are: Michael Mills, CEO, Neota Logic; Alice McNeil, Chief Information Officer, Littler Mendelson; Fred Pulzello, CRM, Board of Directors, ARMA International; Derek Schueren, GM Information Access & Governance, Recommind and George J. Socha, Jr., Esq., President, Socha Consulting. Moderator: Nick Patience, Director, Product Marketing & Strategy, Recommind.

1:45 – 3:00 PM:

Technology Assisted Review (TAR): Opening, Exploring and Bringing Transparency to the Black Box

It's time to set the record straight on technology assisted review (TAR). Some people object to what they mistakenly believe is the "black box" nature of the technology, while others are hesitant to adopt an approach that they perceive as novel. This panel will dispel the myths, clarify the definitions, and shed light on the so-called "black box" of technology assisted review.

Some audience members may be surprised to learn that technology assisted review is nothing new. Search and clustering technology, for example, have been commonplace for many years. The phrase "technology assisted review" simply refers to a more efficient use of people, process, and technology that is the next evolutionary step in electronic discovery. As with other legal technologies, human expertise and a proven workflow are the keys to success. This panel will clearly explain what technology assisted review is all about so that you can make an informed decision about adopting it in your organization.

Panelists are: David Horrigan, Analyst, eDiscovery and Information Governance, The 451 Group; David Leone, Esq., Director of Litigation Support Services, Saul Ewing LLP; Douglas W. Oard, Ph.D., University of Maryland College of Information Studies; Doug Stewart, Director of Technology, Daegis and Mike Stringer, Co-Founder & Managing Partner, Datascope Analytics.

Practical Handbook of Conducting eDiscovery – Tips and Tricks

An educational panel shares their knowledge on conducting a global eDiscovery initiative. Unique solutions to challenges in selected countries and regions as well as cross jurisdictional data movement will be discussed. Navigating unique cultural and procedural obstacles, handling multi-lingual data sets as well as strategic positioning of hosting data centers are just a few topics to be covered during this informative and interactive session.

Speaker is: Owen O'Connor, Managing Director, Cernam Online Evidence. Moderator: George Rudoy, Founder & CEO, Integrated Legal Technology, LLC.

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

Panelists are: Stephanie "Tess" Blair, Partner, Morgan Lewis; Julie J. Colgan, CRM, Director, Information Governance, Client Advisory Services, Merrill Corporation; David Kessler, Partner, Fulbright & Jaworski; Ralph C. Losey, Partner and National e-Discovery Counsel, Jackson Lewis, LLP and Robert Trenchard, Partner, WilmerHale. Moderator: Craig Carpenter, VP of Marketing, 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? What did you think of the show this year? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscoveryDaily