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eDiscoveryDaily

eDiscovery Trends: Tuesday LTNY Sessions
 

As noted 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.  There’s still time to check out the show if you’re in the New York area with a number of sessions (both paid and free) available and over 225 exhibitors providing information on their products and services.

While at the show, we will also be interviewing several industry thought leaders to see what they think are the significant trends for 2012 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get more than 100 hits.  Yikes!  More eDiscovery sessions happening!  Here are some of the sessions in the main conference tracks:

10:30 – 11:45 AM:

Advice from Counsel: Top Legal Minds in the Country Share their eDiscovery Tips

For the third consecutive year, Ari Kaplan of Ari Kaplan Advisors surveyed corporate counsel of Fortune 1000 companies, asking their advice for implementing cost-effective and defensible eDiscovery programs. From tips for companies just beginning to develop their eDiscovery programs to outlining their process dealing with multinational litigation or investigations, the feedback was varied and covered a wide range of topics. Although it's clear that each corporate environment requires a customized approach, legal leaders can evaluate the advice given in relation to their own eDiscovery requirements which may ultimately lead to cost savings and efficiency gains.

Attendees of this session will learn about:

  • Top advice from peers for creating effective eDiscovery programs
  • Strategies for measuring savings and predicting matter costs
  • Perspectives on utilizing in-house eDiscovery teams vs. outsourcing vendors
  • Best practices for multinational discovery and additional resources

 Panelists are: Vincent M. Catanzaro, Senior Counsel, Global Discovery Manager, DuPont Legal; Ari Kaplan, Principal, Ari Kaplan Advisors; Lynn S. Looby, Managing Counsel, Director of The Discovery Expertise Committee, The Dow Chemical Company; and Renee Meisel, Legal Director, Dell Inc.  Moderator: Joe Looby, Senior Managing Director, FTI Technology.

Ways to Manage eDiscovery Costs

Preparation is everything. This educational session will highlight first practical steps into Litigation Readiness as well as:

  • How to best filter down data – new technology solutions 2011/2012
  • Legal Process Outsourcing – onshore/offshore or near shore – developments in 2011

Panelists are: Bob Rowe, Huron Legal; Gail Foster, Special Counsel, Baker Botts; The Honorable Ronald J. Hedges (ret.), Adjunct Professor of Law; Former United States Magistrate Judge; Elizabeth Jaworski,  Director, Legal Operations, Motorola Mobility, Inc.; Tania Mabrey, Practice Technology Project Manager, Crowell and Moring LLP; Jeffrey W. McKenna, CIPP, E-Discovery and Privacy Attorney, Orrick, Herrington & Sutcliffe LLP; Carol Southerland, J.D., Managing Director, Huron Legal.

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? Which components of the EDRM are best insourced or outsourced? What are the advantages and drawbacks of using the cloud for eDiscovery?

In this session, the panel will:

  • Explore "hot-off-the-presses" survey statistics on insourcing v. outsourcing market trends
  • Discuss the pros and cons inherent in the cloud/SaaS v. behind-the-firewall software debate

Panelists are: Ann Marie Riberdy, Technology and Litigation Support Manager, Wilmer Hale; Lisa Markay, US Head of Information Risk Management, Barclays; Michele Lange, Director of Thought Leadership & Industry Relations, Kroll Ontrack.  Moderator: Jonathan Sachs, Northeast Regional Manager – Business Development, Kroll Ontrack.

12:30 – 1:30 PM:

Plenary General Session: Technology Assisted Discovery – OPEN TO ALL

The volume and complexity of information today presents a significant challenge to those involved in eDiscovery. With ESI arising in many different channels, and communicated across an ever more mobile society, the legal community is looking toward technology to assist more broadly in the discovery process. According to Judge Andrew Peck, "computer-assisted coding should be used in those cases where it will help 'secure the just, speedy and inexpensive' (Fed. R. Civ. P. 1) determination of cases in our e-discovery world." During this plenary session, we will explore the use of technology assisted review to make coding recommendations that dramatically accelerate review and radically reduce costs and risk.

Panelists are: Tom Lidbury, Litigation Partner, E-Discovery Group Leader, Drinker Biddle & Reath LLP; The Honorable Frank Maas, Magistrate Judge, United States District Court for the Southern District of New York; Browning Marean, Senior Counsel & Co-Chair, Electronic Discovery Readiness and Response Group, DLA Piper; The Honorable Andrew J. Peck, Magistrate Judge, United States District Court for the Southern District of New York; Michael Sullivan, CEO Protect Enterprise Markets, Autonomy and Jessica L. Watts, Discovery Counsel, Office of General Counsel, HP.  Moderator: Deborah Baron, VP, eDiscovery, Autonomy.

2:00 – 3:15 PM:

Budgeting for eDiscovery: Exploring your Approach to Cost Control and Transparency

The ability to predict costs more accurately will be of increasing focus as corporations, law firms and government agencies aim to streamline eDiscovery into standard business process. The commonly used line-item approach has a number of benefits, yet new budgeting models are emerging that may give some corporate clients greater control and transparency. The success of either approach may depend on the company's litigation profile and types of matters faced, as well as the number of in-house resources, personnel and technology. Which model is best for you?

Session attendees will learn:

  • The key attributes of two common eDiscovery models that are explicitly focused on cost control
  • How these attributes can increase or reduce eDiscovery costs and assist in litigation readiness
  • Important questions related to pricing, process and technology that better determine eDiscovery program costs
  • How to conduct a self-assessment test to help rate the current level of eDiscovery budgeting transparency in your organization

Panelists are: David Horrigan, Analyst, eDiscovery and Information Governance, The 451 Group; Mike Knight, Partner, Jones Day; Lisa Markey, Vice President, Information Risk Management, Barclays Capital.  Moderator: Sophie Ross, Senior Managing Director, FTI Technology.

Part One – A GC's Nightmare: A US eDiscovery Request into Europe

This session will cover recent case scenarios of eDiscovery into Europe as well as:

  • Cross border issues from the GC's perspective
  • Costs implications, weighing out the options

Panelists are: Craig Cannon, Assistant General Counsel & Discovery Counsel, Bank of America; Rich Chandler, EVP, Chief Legal Officer & General Counsel, CB&I; Chris Dale, The eDisclosure Information Project; The Honorable Frank Maas, Magistrate Judge, United States District Court for the Southern District of New York; Browning Marean, Senior Counsel & Co-Chair, Electronic Discovery Readiness and Response Group, DLA Piper; Vince Neicho, Litigation Support Manager, Allen & Overy LLP; Farrah Pepper, Executive Discovery Counsel, Litigation & Legal Policy, GE; Master Steven Whitaker, Senior Master of the Senior Courts of England and Wales in the Queen's Bench Division; The Queen's Remembrancer.  Moderator: Nigel Murray, Managing Director, Huron Legal.

Under Fire: Defending and Challenging a Motion Against 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
  • Defend and challenge a hypothetical motion attacking the defensibility of this innovative technology
  • Provide you with tips to help overcome your organization's objections to using intelligent review technology

Panelists are: Emily A. Cobb, Associate and Senior Discovery Attorney, Ropes & Gray; Edward Rippey, Partner and Chair of E-Discovery Practice Group, Covington & Burling LLP; Katie Winseck, Solutions Architect, Kroll Ontrack.  Moderator: Gilbert Greenman, Senior Consultant for Discovery and Professional Training, Williams & Connolly.

3:45 – 5:00 PM:

The Future of Legal Review: Increasing Productivity and Reducing Costs

From predictive coding to analytics and ECA, ediscovery practitioners have a number of technology options available today to speed legal review. But can technology alone help solve ediscovery cost and scale issues? This interactive session will focus on the tools and processes that will shape legal review in the years to come, and include discussion on case law, productivity benchmarks and cost containment.

Session attendees will learn:

  • How to determine which matters are best suited for predictive coding or predictive analytics and why the role of the human reviewer is growing (not lessening) when these workflows are utilized
  • Why sophisticated software designed to decrease the burden of review depends on statistical sampling and quality-control processes
  • What case law is most relevant to support the use of predictive workflows and how this should best inform case strategy
  • What corporate counsel requested most of their outside counsel in 2011 to reduce costs and what they plan to request in 2012

Panelists are: The Honorable Ronald J. Hedges (ret.), Adjunct Professor of Law; Former United States Magistrate Judge; Michelle Mahoney, Director Legal Logistics, Mallesons Stephen Jaques; Katey Wood, Analyst, Enterprise Strategy Group.  Moderator: Manfred Gabriel, Managing Director, FTI Technology.

Part Two – A GC's Nightmare: A US eDiscovery Request Into Europe

This session is a continuation of the previous and as it continues to address eDiscovery in Europe, it will also cover:

  • News from Sedona
  • A view from the desk of a German data commissioner

Panelists are: Craig Cannon, Assistant General Counsel & Discovery Counsel, Bank of America; Rich Chandler, EVP, Chief Legal Officer & General Counsel, CB&I; Chris Dale, The eDisclosure Information Project; The Honorable Frank Maas, Magistrate Judge, United States District Court for the Southern District of New York; Browning Marean, Senior Counsel & Co-Chair, Electronic Discovery Readiness and Response Group, DLA Piper; Vince Neicho, Litigation Support Manager, Allen & Overy LLP; Farrah Pepper, Executive Discovery Counsel, Litigation & Legal Policy, GE; Master Steven Whitaker, Senior Master of the Senior Courts of England and Wales in the Queen's Bench Division; The Queen's Remembrancer.  Moderator: Nigel Murray, Managing Director, Huron Legal.

Corporate Legal eDiscovery: Six Topics in 60 Minutes

Join our discussion of eDiscovery from the corporate perspective. We'll cover a variety of topics, as selected by ILTA members, that range from the infrastructure needed to support in-house eDiscovery, pitfalls to avoid, practical strategies for managing the process, to vendor management, case closure and more.

Panelists are: Alexander Arato, VP, Associate General Counsel, CA Technologies; Glenn O'Brien, E-Discovery Manager, Liberty Mutual Insurance Company.  Moderator: Joanne Lane, Director – eDiscovery Strategy and Litigation Support, MetLife.

News Flash! Exploring Hot eDiscovery Trends

E-Discovery evolves at the speed of light. If your organization is standing still, you are losing ground.

In this session, the panel will:

  • Explore how e-discovery evolved in 2011, with a look into how it will continue to change in 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 e-discovery such as social media

Panelists are: Meghan Podolny, Associate, Hunton & Williams; Alitia Faccone, Partner, McCarter & English; Honorable David J. Waxse, US District Court, District of Kansas.  Moderator: Andrea Gibson, Director – Product Development, 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 LTNY this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Welcome to LegalTech New York 2012!
 

Today is the start of LegalTech New York 2012 (LTNY) and, once again, eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next three days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the New York area, I encourage you to check out the show – there are a number of sessions (both paid and free) available and over 225 exhibitors providing information on their products and services.

While at the show, we will also be interviewing several industry thought leaders to see what they think are the significant trends for 2012 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get 96 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

10:30 – 11:45 AM:

Standardizing Processes for Discovery Management and Cost Management – An ROI Your GC Can Appreciate

Given the significant potential expense of eDiscovery, in-house and outside counsel must understand the eDiscovery process in the context of not only legal compliance and the current matter, but also in the context of financial impact/cost. In short, eDiscovery must be approached and understood operationally and financially. This panel will address the standards of eDiscovery accountability, efficiency and effectiveness and explain how a repeatable business process applied in the context of eDiscovery can ensure that your future eDiscovery processes are treated just like any other critical business process.

Panelists are: Kim-An Hernandez, Senior Counsel, International Paper; Anthony Knaapen, Manager, Litigation Discovery, Chevron Corporation; Meagan Thwaites, Counsel—CRM Legal Department, Boston Scientific Corporation; and Kelli Brooks, National Partner-in-Charge, Evidence and Discovery Management, KPMG LLP.

Top Five Ethical Concerns for Lawyers in eDiscovery

This panel will address how lawyers can recognize and comply with their ethical obligations while:

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

Panelists are: Ruth Hauswirth, Director of Litigation and eDiscovery, Cooley LLP; Courtney Barton, Assistant General Counsel, AOL; M. James Daley, Partner, Daley & Fey LLP; Nicholas Jafarieh, Managing Director & Associate General Counsel, Sallie Mae.  Moderator: Maureen O'Neill, Vice President of Discovery Strategy, DiscoverReady LLC.

12:30 – 1:30 PM:

Plenary General Session: Man vs. Machine: The Promise/Challenge of Predictive Coding and Other Disruptive Technologies – OPEN TO ALL

In 2012, emerging, disruptive technologies are showing great promise for the legal field, specifically in the areas of classification, retention, and review. As technology begins to understand the context of information and apply it to the nuances of legal decisions in a way once exclusively reserved for the human practitioner, one must examine how technology will change the legal practices of today. This session will examine predictive coding as a case study of how disruptive technologies have both great promise and legitimate challenges in the Legal industry.

In one corner is the human document review process. While well-established it's also now clear that the eyes-on methodology can have significant drawbacks both in cost and accuracy. In the other corner, a range of artificial intelligence technologies have shown promise in enabling enhanced precision and recall through a range of Technology Assisted Review (TAR) features such as email threading, clustering, concept search and predictive coding. And yet, despite the buzz they haven't gained widespread adoption.

In this general session, vocal Jurist and U.S. Magistrate Judge for the Southern District of New York, Andrew Peck, leads a panel of industry experts that will discuss a range of hot topics including:

  • How defensible are these TAR techniques and do they merely need to be more accurate than an average human document review?
  • Are certain use cases (like internal investigations and governmental inquiries) better suited for the use of TAR tools?
  • How does the role of attorneys change in a TAR workflow?

Panelists are: Maura R. Grossman, Counsel, Wachtell, Lipton, Rosen & Katz; Ralph C. Losey, Partner and National eDiscovery Counsel, Jackson Lewis, LLP; The Honorable Andrew J. Peck, Magistrate Judge, United States District Court for the Southern District of New York. Moderator: Dean Gonsowski, eDiscovery Counsel, Symantec.

2:00 – 3:15 PM:

eDiscovery Process Validation Sampling – How Confident Can You be in the Results of Your Software Assisted/Predictive Coding Process?

The increasing volume and complexity of electronically stored information and the cost of its review continues to drive the need for development of sophisticated, high-speed processing, indexing and categorization or "predictive coding" software in response to litigation and regulatory proceedings. Since the majority of these tools rely on sophisticated, proprietary algorithms that are frequently referred to as "black box" technologies, there has been a reluctance to exploit their expected productivity gains for fear that the results they produce may be challenged and rejected as not meeting the required standard of "reasonableness." Effective use of sampling can overcome this concern by demonstrating with a stated level of confidence that the system has produced results at least as consistent and reliable as those obtained by having attorneys review the documents without sophisticated technology support. This panel will cover testing, based on statistical sampling, the quality improvements and cost savings promised by "predictive coding" technology.

Panelists are: Marla Bergman, Director of eDiscovery, Goldman Sachs; Wayne Matus, Partner, National Leader – Information Law and Electronic Discovery Practice, Pillsbury Winthrop Shaw Pittman LLP; George J. Socha, Jr., Esq., President, Socha Consulting; Chris Paskach, Forensic Technology Services – Americas Network Leader, KPMG LLP.

Understanding Automated Review— Utilizing Predictive Coding as Part of Your Comprehensive Discovery Process

For more than two years, there has been an avalanche of commentary predicting how automated review and predictive coding tools can and will be used to supplement or replace current eDiscovery processes. Despite all of the buzz, relatively few corporations and law firms have taken the plunge into automated review. This reluctance may be based on the wide variety of service offerings and technologies that are being marketed as "automated" review tools, as well as a lack of transparency into how automated tools operate as part of a larger eDiscovery strategy.

During this session, leading practitioners and in-house counsel will demystify automated review. Key discussion points will include:

  • An overview of the automated review and predictive coding landscape
  • How to blend traditional manual document review with automated review options
  • Practical approaches to automating the review process
  • Snapshots into how leading companies are using automated review as part of their existing discovery processes

Panelists are: Craig Cannon, Assistant General Counsel & Discovery Counsel, Bank of America; Jessica Watts, AGC & Discovery Counsel, HP; Michele Spak, Senior Counsel, Office of General Counsel, Duke Energy; Matt Miller, SVP & IP Practice Group Leader, DiscoverReady LLC.

3:45 – 5:00 PM:

More Predictive than Ever – Predictive Coding, Predictive Costs and Predictive Outcomes – New Techniques to Manage and Control Electronic Discovery

Judge Andrew Peck cast 2011 as the year of predictive coding. A year on, where do we stand? Predictive coding is part of a paradigm shift in electronic discovery, as practitioners leverage technology and new business practices to regain control of the eDiscovery business process. Using case studies, the panelists will review some of the dramatic changes that are emerging in the conduct of eDiscovery. Sound predictive coding is fundamental to these changes. Other key changes include process transparency, early learning, rebalancing the outsourcing-insourcing mix, stratified review and statistically-driven quality assurance. Following Judge Peck, the panel will explore how predictive coding and emerging related business practices can be used to "`secure the just, speedy, and inexpensive` (Fed. R. Civ. P. 1) determination of cases in our eDiscovery world."

Panelists are: Daniel Garrie, Partner, Law & Forensics LLC (formerly FSRDG LLC) and General Counsel, Pulse; Kathryn Goetz, Vice President of Litigation Discovery, Qualcomm; Maura R. Grossman, Counsel,  Wachtell Lipton Rosen & Katz; Joel Mitnick, Partner and Co-Chair of eDiscovery Task Force, Sidley Austin LLP. Moderator: Warwick Sharp, Vice President, Equivio.

Evolution of eDiscovery Decisions in Financial Services

In the past, financial services eDiscovery cases and regulatory settlements focused on failure to retain records pursuant to the SEC, or the inability to access those records and produce them in a reasonable amount of time. Adverse inferences in Zubulake and Coleman v. Morgan Stanley come to mind, as well as widely publicized settlements between financial services companies and regulators. Join us for a lively discussion of the following topics:

  • What should you anticipate in terms of future challenges with eDiscovery?
  • Are you prepared for discovery related to audio files and social media?
  • What can we anticipate, if anything, from Dodd-Frank rulemaking and its impact on the demands on your eDiscovery process?
  • Will budget constraints on regulators impact the ability to negotiate terms of investigation, or even settlements?
  • Will automated review reduce the burden on you or your clients, or will financial services litigants and regulators reject efforts to incorporate automated solutions into the eDiscovery process?

Panelists are: Tom Shpetner, Director of Equities Compliance – Americas, RBC Capital Markets; Glenn MacFarlane, Executive Director, eDiscovery, JPMorgan Chase; Amy Hinzmann, SVP & Financial Services Practice Group Leader, DiscoverReady LLC.

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

I always promise this, but always seem to get too busy to deliver, but I’m bound and determined to make good on my promise this year: eDiscoveryDaily will also be “tweeting” periodically throughout LTNY, so feel free to check out our updates at twitter.com/Cloud9Discovery.

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

eDiscovery Case Law: Fifth Amendment Doesn’t Extend to Encrypted Hard Drives – Or Does It?
 

In the case U.S. v. Fricosu, Colorado district judge Robert Blackburn has 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.

The day the search warrant was carried, Fricosu spoke with her imprisoned ex-husband Scott (indicted with Fricosu in the case) by phone. The conversation was recorded, and Fricosu implied that relevant information could be found on the encrypted laptop:

Scott: (SC [simultaneous conversation]) oh yeah that’s right it was on your laptop wasn’t it

Ramona: I think so but I’m not sure

Scott: OK

Ramona: yeah cause they kept asking me for passwords and I said, ya know no I just didn’t answer them

Scott: right (SC). Because when you went there you took your laptop

Ramona: yeah I think so I think I did

Scott: and so (SC) it would been on there

Ramona: yeah

Scott: OK

Ramona: and my lawyer said I’m not obligated by law to give them any passwords or anything they need to figure things out for themselves

Based on this conversation, the government sought a warrant under the “All Writs Act, 28 U.S.C. § 1651, requiring Ms. Fricosu to produce the unencrypted contents of the computer.”  Fricosu declined, “asserting her privilege against self-incrimination under the Fifth Amendment”.

In providing his ruling, Judge Blackburn referenced In re Grand Jury Subpoena to Boucher in which child pornography was identified on the defendant's laptop during a border search in Vermont. When the laptop was later seized, it was determined to be password protected. A magistrate judge initially sided with the defendant finding that he could not be compelled to reveal the contents of his mind, which is what the act of producing the password would be.  Revising the grand jury’s request to require the defendant to produce, not the password itself, but rather an unencrypted version of the drive, a Vermont District judge granted that request.

With that case as precedent, 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.  However, Judge Blackburn 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”.

Fricosu’s attorney has indicated he plans to appeal the ruling and noted that his client may not even be able to decrypt the hard drive, stating “If that's the case, then we'll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do”.

So, what do you think?  Should production of the hard drive have been compelled?  Does the preclusion from using evidence from the hard drive against her in prosecution address any Fifth Amendment concerns?  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: Small Cases Need Love Too!
 

There was an interesting article in Law Technology News from Tom O’Connor, a previous thought leader interviewee on this blog, regarding the dilemma associated with affordability of eDiscovery technology for small cases (entitled Pricing: The Small Case E-Discovery Dilemma).  Even though small cases make up the overwhelming majority of cases filed and there is ESI to manage in those cases just like there is in the big cases, eDiscovery technology has historically been cost prohibitive for the cases when compared to the amount at dispute.

To make technology work for the smaller cases, Tom makes some assumptions, including:

  • Typical ESI File Formats: The types of files you’re working with in the smaller cases are typical file formats for email and office functions.  If you get into the less common file formats, you’re more likely to need more expensive technology to handle those.
  • Host the Data Yourself: Tom assumes “that you want to host the data yourself, and that you have the equipment and skills to do so” and that small cases “demand applications that can be installed on one computer for processing and review”.  It’s an interesting assumption, the question is do many of the firms managing these small cases have both the equipment and the skills to do so? (I’m not sure that they do).
  • Smaller Volumes of ESI: Of course, it makes perfect sense that the small case would be dealing with less ESI.  As Tom notes, “[w]e're also assuming you are not dealing with terabytes of information.”  Of course not.  However, with each GB representing 50,000 pages of data (or more), it doesn’t take much volume to require technology to effectively manage the data.
  • Cooperative Relationship: Tom also states the assumption that “you have a cooperative relationship with the other side, at least in terms of dealing with EDD”.  When that’s the case, it’s a lot easier to keep eDiscovery at a proportional level.

The article goes on to look at a case starting with 800 GB that ultimately yields 200 GB of reviewable material and the potentially exorbitant costs (as much as $1 million) associated with managing a 200 GB case.  Yet, as Tom notes, “[b]ig EDD companies don't want this business — we've been told that directly by sales managers at two separate top-tier companies.”

Last year at LegalTech, several of the thought leaders that I interviewed indicated that they were seeing more technology alternatives suitable for the smaller cases and Tom mentions some of those toward the end of the article.  One of our 2012 predictions was a greater adoption of eDiscovery technology for smaller cases (as even those cases are no longer that small), attorneys are forced to embrace eDiscovery technology for these cases and, eDiscovery providers are taking note.

In addition to the trends and technology alternatives that Tom writes about, I wrote an article that was published in LJN’s Legal Tech Newsletter in September entitled e-Discovery Technology for the $100,000 (Or Less) Case that discusses some of the trends that are starting to make technology more affordable for the smaller case.  These include SaaS applications in the cloud, pricing models that promote simplified and pay-as-you-go technology pricing, advanced data culling techniques and self-service functionality that enables the firm to “do it yourself” instead of paying the vendor for those services.  This article also identifies some technology alternatives that promote those concepts to make eDiscovery technology affordable even when the amount in dispute is no more than $100,000.

If you’re a subscriber to Legal Tech Newsletter, you can get that entire issue here.  If you’re not a subscriber, but would be interested in a reprint of that article, send me an email to daustin@ediscoverydaily.com and I’ll send you a copy.

So, what do you think?  Are you able to effectively use eDiscovery technology for smaller cases?  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.

Social Tech eDiscovery: Facebook Law Enforcement Policies Revisited

One of the very first posts we published on this blog, over 16 months ago, was a post regarding Facebook’s Subpoena Policy, describing and providing a link to Facebook’s Law Enforcement page to request information from Facebook.  With numerous cases involving discovery of information on Facebook, (including this one, this one, this one, this one, this one and this one – all just in the past year), it seems appropriate to revisit this page to see if anything has changed.

The first thing that has changed is the link itself.  The old link we published 16 months ago no longer takes you to that page – it defaults to the general Facebook help page.  So, I had to “go hunting” for the new location for the law enforcement page.  It took a few tries, but I did finally find it here.  If you prefer your Facebook Law Enforcement information in downloadable document form, the link to the PDF is here.

The page has a lot more information than the old page.  Sections include:

  • US Legal Process Requirements: Notes that Facebook discloses account records solely in accordance with their terms of service and applicable law, including the federal Stored Communications Act (“SCA”), 18 U.S.C. Sections 2701-2712, which requires a valid subpoena, court order or search warrant to compel disclosure of Facebook content.
  • International Legal Process Requirements: A Mutual Legal Assistance Treaty request or letter rogatory may be required to compel the disclosure of the contents of an account.  More information found here.
  • Account Preservation: Link to form to request preservation of account records for up to 90 days pending receipt of formal legal requests.
  • Emergency Requests: Email address for a law enforcement official to obtain an emergency request form in cases “involving imminent harm”.
  • Child Safety Matters: What to do when requests relate to child exploitation or safety concerns.
  • Data Retention and Availability: Reiteration that Facebook does “not retain data for law enforcement purposes unless we receive a valid preservation request before a user has deleted that content from our service”, with links to 1) how a Facebook user can request their account to be permanently deleted (with no recovery), 2) Facebook’s Statement of Rights and Responsibilities and 3) Facebook’s Data Use Policy.
  • Form of Requests: Information required with requests for information, including 1) name of the issuing authority, badge/ID number of responsible agent, email address from a law-enforcement domain, and direct contact phone number; 2) email address, user ID number or username of the Facebook profile.
  • User Consent: Instructions for users who have consented to provide their own information to law enforcement officials using Facebook’s Download Your Information feature (previously featured on this blog here).
  • Notification: What to do if officials believe that notification would jeopardize an investigation.
  • Testimony: Facebook’s declaration that they do not provide expert testimony support, but if “a special form of certification is required”, the requestor should attach it to the records request.
  • Cost Reimbursement: Facebook’s statement that they “may seek reimbursement for costs in responding to requests for information as provided by law”, without specifying what those costs might be (which is different than the specific costs stated in the previous page).
  • Contact Information: To submit records requests via email, snail mail or fax – but only if you’re a law enforcement officer.

So, what do you think?  Have you needed to request information from Facebook for litigation purposes?  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: Appeals Court Decides Spoliation Finding For Not Producing Originals is Bull
 

Including yesterday’s post, this seems to be the week for Third Circuit appeal cases…

In Bull v. UPS Inc., No. 10-4339 (3d Cir. Jan. 4, 2012), the Third Circuit court conceded that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information”.  However, it found that in this case, the District Court erred in finding that spoliation had occurred and in imposing a sanction of dismissal with prejudice.

During a jury trial of a claim of disability discrimination under New Jersey law, the plaintiff (a former UPS employee) testified about two notes that she received from her doctor and faxed to UPS, regarding her neck and shoulder injury. When UPS challenged the authenticity of those notes and sought to block the admission of the faxed copies, the employee's attorney indicating that the original notes no longer existed.  However, the plaintiff testified during examination that she actually still had originals at home.  As a result, the District Court declared a mistrial and encouraged the defendant to file a motion for sanctions.  The plaintiff produced the original doctor’s notes to the court and after considering defendant’s motion for sanctions, the District Court invoked its authority and ordered the case dismissed with prejudice.  Plaintiff appealed.

After carefully examining the record and determining that there was insufficient evidence that the employee intentionally withheld the original notes, the Third Circuit reversed the sanctions, finding doubt whether or not UPS ever properly requested the original documents; and if so, whether plaintiff's counsel ever communicated those requests.

However, the Third Circuit court recognized, in footnote, a “growing concern not implicated in this case”:

“This highlights a growing concern for us that is not directly implicated in this case.  As electronic document technology progresses, the concept of an “original” document is becoming more abstract.  Moving from the more easily distinguishable photocopy or facsimile to documents created, transmitted and stored in an electronic form means that it will be increasingly difficult to ascertain where the boundary of an objectively reasonable duty to preserve such documents lies.  There are—and increasingly will be—circumstances in which the foreseeability of a duty to preserve the information contained in a particular document is distinguishable—under an objective analysis—from the need to preserve that information in its “original” form or format.  Indeed, arriving at a common understanding of what an “original” is in this context is challenging enough.  Although it does, and always will rest with the courts to preserve the distinction between an objectively foreseeable duty and actual knowledge of such a duty, there is a concomitant obligation that counsel must assume to clearly and precisely articulate the need for parties to search for, maintain, and—where necessary—produce “original” or source documents.  This case gives us one more opportunity to highlight our position that clarity in communications from counsel that establish a record of a party's actual knowledge of this duty will ensure that this technology-driven issue does not consume an unduly large portion of the court's attention in future litigation.”

So, what do you think?  Should the sanctions have been reversed?  Or should the producing party be required to produce originals whether they were clearly requested or not?  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 Dismisses Identify Theft Case Where No Harm Was Proven
 

In the case Reilly v. Ceridian Corp, 11-1738 (3rd Cir. Dec. 12, 2011), the Third Circuit affirmed the district court’s dismissal of a class action against payroll processing company Ceridian for a data breach, finding that the plaintiffs case lacked merit because their alleged injuries were too speculative.

An unknown hacker breached Ceridian’s Powerpay system in December 2009, potentially gaining access to payroll information such as names, birth dates, bank account numbers and Social Security numbers belonging to approximately 27,000 employees at 1,900 companies. Two individual plaintiffs filed suit on behalf of all of the individuals whose information was exposed in the security breach.  However, the lawsuit did not allege that the hacker actually accessed, misused or copied the data. Instead, the plaintiffs claim was based on an allegedly increased risk of identity theft, emotional distress and the credit-monitoring costs they incurred.

The U.S. Court of Appeals for the Third Circuit upheld a District Court decision dismissing the case, finding that these asserted injuries were too speculative to give the plaintiffs standing to bring a federal lawsuit and emphasized the need for an injury-in-fact, which must be actual or imminent, not hypothetical.

The court distinguished this case from other cases in the Seventh and Ninth Circuits where plaintiffs bringing claims for data breaches were found to have standing. The Third Circuit judges noted that those other cases involved threatened harms that were much more “imminent” and “certainly impending” due to evidence of improper intent (such as the Ninth Circuit case, where an individual had attempted to open a bank account with a plaintiff’s information following the physical theft of a laptop).

Even though the plaintiffs voluntarily expended time and money to monitor their financial situation, the court concluded:

“Here, no evidence suggests that the data has been—or will ever be—misused”…The present test is actuality, not hypothetical speculations concerning the possibility of future injury. Appellants’ allegations of an increased risk of identity theft resulting from a security breach are therefore insufficient to secure standing.”

So, what do you think?  Should the case have been dismissed?  Or should a company be held responsible for security breaches regardless what is done with the data that’s breached?  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: Needing “Technology Assisted Review” to Write a Blog Post
 

Late on a Thursday night, with a variety of tasks and projects on my plate at the moment, it seems more difficult this night to find a unique and suitable topic for today’s blog post.

One thing I often do when looking for ideas is to hit the web and turn to the many resources that I read regularly to stay abreast of developments in the industry.  Usually when I do that, I find one article or blog post that “speaks to me” as a topic to talk about on this blog.  However, when doing so last night, I found several topics worth discussing and had difficulty selecting just one.  So, here are some of the notable articles and posts that I’ve been reviewing:

There’s plenty more articles out there.  I’ve barely scratched the surface.  When we launched eDiscovery Daily about 16 months ago, some wondered whether there would be enough eDiscovery news and information to talk about on a daily basis.  The problem we have found instead is that there is SO much to talk about, it’s difficult to choose.  Today, I was unable to choose just one topic, so, as the picture notes, “I have nothing to say”.  Therefore, I’ve had to use “technology assisted review” to provide a post to you, thanks to the many excellent articles and blogs out there.  Enjoy!

So, what do you think?  Are there any specific topics that you find are being discussed a lot on the web?  Are there any topics that you’d like to see discussed more?  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: Making the Most of LegalTech
 

It’s that time of year… LegalTech® New York is right around the corner.  People are talking about it, making plans to get together, scheduling demos and meetings, and deciding which parties to attend.  Newbies to the show are excited to go.  More seasoned attendees are looking forward to seeing peers.  It’s a great time to catch up with people and it offers a great opportunity to keep abreast of new industry trends and technology advancements.

Is there a downside? Well, yes, there is.  Attending the show costs money (travel expenses, lost billings, or both).  And more significantly, it eats up one of our scarcest resources:  time.  Some years I’ve questioned whether it was worth it.  Other years, it’s been obviously valuable.  Interestingly, the difference has not had anything to do with the show itself, but rather with my approach to it.  So let me suggest an approach for making the most out of your next LegalTech show.

  1. Establish one or two primary objectives:  Determine what you want to accomplish or what you want to learn, and make those your objectives.  For example, maybe you don’t have experience with predictive coding and want to learn more about it.  Or maybe it’s been awhile since you’ve looked at document review tools and it’s time to re-evaluate them.  Identify specific objectives to focus on.
  2. Identify conference sessions to attend:  Look at the conference schedule and identify sessions aimed at the objectives you’ve established.  Put them on your calendar.
  3. Identify vendors with products and/or services aimed at your areas of interest:  Review the exhibitor list, go to vendor web sites, and make a list of vendors of interest.  Identify the exhibit booths you’d like to visit, and identify the vendors with whom you’d like to meet.
  4. Schedule demos and meetings:  To ensure you meet your objectives, schedule meetings and/or demos with a few vendors. 
  5. Prepare lists of questions:  You will get the most out of meetings/demos with vendors if you are armed with a list of specific questions.  For each of your objectives, identify the questions you should be asking.
  6. Keep good records:  At the show, take good notes and collect contact information.  You will be meeting a lot of people and it will be very difficult to remember everything you’ve learned if you’re not taking good notes!
  7. Take advantage of the networking opportunities:  Get together with peers and talk about what they are doing, what tools they are using, and what approaches they’ve implemented.  Introduce yourself to people you don’t know.  Casual conversations in social situations can be invaluable!
  8. Commit to reporting on what you’ve learned:  Before the show, commit to preparing a report on your findings.  You are more likely to stay focused on your objectives if you’ve committed to reporting on them.

If you haven’t approached LegalTech with this type of plan yet, you may be surprised at what a difference it can make!  Do the up-front leg work, enjoy the show, and make it a good use of your time!

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

eDiscovery Case Law: Court Denies Plaintiff Request For Additional Searches for Acronyms
 

In the case In Re: National Association of Music Merchants, Musical Instruments and Equipment Antitrust Litigation, MDL No. 2121 (Dec. 19, 2011), U.S. Magistrate Judge Louisa S. Porter considered a motion by the plaintiffs seeking to compel the defendants to run document searches containing abbreviations and acronyms identified during discovery.  Ruling that the plaintiffs had “ample opportunity” to obtain this discovery earlier in the case, the court denied the motion.

The defendants notified the plaintiffs that they intended to use keyword searches to find relevant documents to plaintiffs’ discovery requests and asked the plaintiffs to provide search terms.  However, the plaintiffs indicated that they could not provide the terms, lacking sufficient information at that point to construct meaningful searches. So, the defendants created their own list of search terms, which they then reviewed with the plaintiffs, who protested that the terms were too restrictive and were unlikely to capture some highly relevant documents. As a result, both sides sat down and negotiated a list of agreed-upon search terms, including several terms specifically targeted to capturing defendant-to-defendant communications.

The defendants began to produce documents based on the agreed-upon terms. Through review of those produced documents, the plaintiffs discovered the frequent use of abbreviations and acronyms and filed a motion seeking to compel the defendants to run document searches containing these abbreviations and acronyms.

While the court noted that keyword searching should be “a cooperative and informed process” and emphasized the importance of “a full and transparent discussion among counsel of the search terminology”, the court chastised the plaintiffs, noting:

“Here, the Court finds Plaintiffs had ample opportunity to obtain discovery regarding abbreviations and acronyms of Defendant companies, and the burden or expense to Defendants in having to comply with Plaintiffs’ request regarding abbreviations and acronyms outweighs its likely benefit. … First, Plaintiffs had two separate opportunities to suggest that Defendants search for abbreviations and acronyms of the Defendant companies; initially, before Defendant’s produced documents; and second, during negotiations between the parties on agreed-upon expanded search terms. In the spirit of the conclusions made at the Sedona Conference, and in light of the transparent discussion among counsel of the search terminology and subsequent agreement on the search method, the Court finds it unreasonable for Defendant to re-search documents they have already searched and produced.

Second, after meeting and conferring with Plaintiffs, and relying on their agreement with Plaintiffs regarding search terms, Defendants have already searched and produced a significant number of documents, thereby incurring significant expenses during this limited discovery period. Further, as articulated by Defendants, the new search terms Plaintiffs have proposed would require some Defendants to review tens of thousands of additional documents that would likely yield only a very small number of additional responsive documents. Therefore, the Court finds a re-search of documents Defendants have already searched and produced is overly burdensome.”

As a result, the court denied the plaintiffs’ request to “run document searches containing abbreviations and acronyms for agreed-upon search terms concepts”.

So, what do you think?  Should the plaintiffs’ have been able to anticipate the abbreviations and acronyms during negotiations or should their motion have been granted to add them later?  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.