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eDiscovery Trends: Craig Ball of Craig D. Ball, P.C.
This is the seventh (and final) of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:
  1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends?
  4. What are you working on that you’d like our readers to know about?

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

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

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

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

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

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

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

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

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

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

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

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

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

Thanks, Craig, for participating in the interview!

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

eDiscovery Trends: Ralph Losey of Jackson Lewis, LLP, Part Two
This is the sixth of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year.

Today’s thought leader is Ralph Losey. Ralph is an attorney in private practice with the law firm of Jackson Lewis, LLP, where he is a Partner and the firm’s National e-Discovery Counsel. Ralph is also an Adjunct Professor at the University of Florida College of Law teaching eDiscovery and advanced eDiscovery. Ralph is also a prolific author of eDiscovery books and articles, the principle author and publisher of the popular e-Discovery Team® Blog and founder and owner of an intensive online training program, e-Discovery Team Training, with attorney and technical students all over the world.

Our interview with Ralph had so much good information in it, we couldn’t fit it all into a single post.  Yesterday was part 1.  Here’s the rest of the interview!

Are there any other key trends you see?  Is there anything else interesting in terms of the trends you see here at LegalTech, at least as far as the curriculum goes?

[Interviewed the first morning, before the show began]  In all candor, the show hasn’t begun yet, so I haven’t seen anything.  I’m doing four presentations on predictive coding and one with Craig Ball, which I’m looking forward to.  I hope I don’t suffer too bad of a public humiliation by Master Ball.

But, you know, the keynote speech that’s getting ready to start is on ethics, and I see a lot of ethics in the curriculum.  I’m pleased by that.  I do lecture a lot on eDiscovery ethics, and I think it comes down to fundamentally what we are doing with discovery.  Are we, as legal practitioners, willing to stop playing “hide the ball”, stop all this nonsense and waste of money, and get down to actually finding the key facts and getting them out there quickly?  That’s always been my attitude, but I was lucky – I was brought up in a firm that really put ethics first and money second.  But, there are a lot of people out there for which money’s first, and ethics is a gray area.

Ethics is not a gray area.  We’re supposed to try and get the case resolved and save money for our clients.  That’s rule one.  Just do it speedy and inexpensively.  A lot of lawyers, say, “yeah, right” and that’s how they make a living.  Well, shame on them.

You don’t make a living by exploiting your clients.  You make a living by winning cases, and sometimes the best way to win a case is to settle it when you realize the facts are against you – not to try to change the facts or hide the facts.  So that’s ethics.  Most clients want ethical lawyers like that.

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

I’m doing a lot of law firm training.  I do that internally and, since my current law firm specializes in labor and employment only, we’re not really a competitor to most law firms.  So, we actually can offer a service to help train other law firms in eDiscovery.

I’m also now doing a lot of training for our corporate clients.  We represent Fortune 500 type companies, and it’s important for those companies to be prepared for eDiscovery.  Now that we’re coming out of the recession, companies can spend the money needed to get ready for litigation and eDiscovery that they put off before, because of other priorities.  Companies are now saying “I want to finally get my e-mail retention policy in order.  I want to figure out how to get a litigation hold implemented in my company without causing all kinds of disruption and chaos and confusion and expense.”

It just takes preparation.  It takes time.  The fundamental way to do that is to set up your own internal team, eDiscovery team.  That’s one of the main ideas that I’ve been talking about for six years now when I started my blog, e-Discovery Team®, is the joint approach of people working together.  Get the IT people, the law people and the management people working together as teams for – in this case – litigation readiness.

It can cost a fair amount of money to do it right.  But, if you spend $100,000 now to get ready and get your systems in order, you can save yourself millions later on and also save yourself the embarrassment of making a mistake, of being found out to be a spoliator.  There are plenty of examples where it makes sense to spend a little money up front to save more money down the road.  So, I want to encourage companies to think about that, whether they use me or somebody else.  There are a number of attorneys that provide those services, and it’s money well spent.  Pay me a little bit now or pay me a lot later.

Ten years ago, when Cisco was probably the first company in the country to form their own eDiscovery team, it was after they faced hundreds of investor law suits.  They found that by forming their own eDiscovery team, they reduced their litigation expenses by 90 percent because most of their litigation expenses were related to eDiscovery.  While I’m not promising you’ll save 90 percent like Cisco did, I am saying it’s a well-established fact that spending a little money up front to prepare will help you save costs in the long run.

I’d also like point out to people the other program that I’ve developed, which I call eDiscovery team training.  And you’ll also find that on the web, at e-Discovery Team Training.  I took what I had developed in law school in teaching eDiscovery to law students for the past three or four years, and I developed an online program with the University of Florida, School of Law.  With their permission, I developed my own private version of that, which is actually much longer and harder than what I taught to law students.  Law students had to take it in two months.

So, I’ve developed a program that built on that, which you can take up to two years to complete.  It’s 75 hours of work to go through the training program and it’s all online.  It has homework assignments at the end for additional reading and presents different essays, hypertext-type writings and videos.  It takes advantage of the power of online education, which I really think is more the future than these expensive, face-to-face education programs, like we have at LegalTech.

There are still a few events that I’ll go to each year (like LegalTech and the Sedona Conference), and then I’ll train inside corporations or in my own law firm.  The fact that most lawyers aren’t doing eDiscovery is not because they’re trying to do anything wrong or hide the truth.  They simply don’t know how.  And if you teach them how to do it, they’ll do it.  This is against a lot of vendors’ models – they would rather serve a nice fish dinner.  I’m more into teaching people how to fish so that they can feed themselves, and that’s what I go around trying to do.

Thanks, Ralph, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: Ralph Losey of Jackson Lewis, LLP
This is the sixth of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year.

Today’s thought leader is Ralph Losey. Ralph is an attorney in private practice with the law firm of Jackson Lewis, LLP, where he is a Partner and the firm’s National e-Discovery Counsel. Ralph is also an Adjunct Professor at the University of Florida College of Law teaching eDiscovery and advanced eDiscovery. Ralph is also a prolific author of eDiscovery books and articles, the principle author and publisher of the popular e-Discovery Team® Blog and founder and owner of an intensive online training program, e-Discovery Team Training, with attorney and technical students all over the world.

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

Many people are saying that 2012 is the year of technology assisted review.  What do you think needs to happen for that to come true?

Well, many things.  First of all, we need to have better training for lawyers so that they’ll know how to use the technology.  If you bring an advanced computer to anyone, they’re going to need some kind of instruction on how to use it.  You have to have people trained to use the tools.  That’s very important and I spend a lot of time focusing on training in my firm and around the country to other attorneys and bar groups.  The tool alone really can’t do much or help you unless you fit in the use of it into a larger, legal methodology.

In other words, just bringing in technology in itself doesn’t answer any questions.  It may answer some, but it doesn’t give you the answers you need in order to use it in your practice.

I’m a legal practitioner.  I’ve been practicing law, for, I guess about 32 years now.  So, that’s how I look at technology – as tools to practice law and represent clients.  And, the truth is most people don’t know how to use predictive coding yet, so we’re going to have a training and learning curve like you do with any new technology.

Vendors also need to start bringing the prices down so that it’s more affordable and make it accessible to a large number of attorneys, rather than just a few attorneys that can afford to handle it in large cases.  I’ve been complaining about this to vendors for a while now.  The good news is I think that they’re listening.  I’m beginning to see prices come down and I think this trend will continue.  It’s in their own best interest to do that because in the long run, they are going to be more successful in bringing this technology to attorneys and making money for their companies if they look at more of a large scale, larger volume, lower profit as opposed to making larger amounts of profit and fewer projects.

I think most of the vendors are receptive to that.  The reason they probably just don’t jump on it right away is the demand isn’t there yet.  Build it and they will come.  But, they’re only coming in small numbers.  When they’re only coming in small numbers in order to pay for their business, they have to charge a lot.

So, it’s a circle.  It comes back again to training.  An educated consumer will want this.  I want this.  I like it, and I want it affordable.

Do you think that it’s just merely a matter of bringing prices down?  Or is it being creative in how you price differently?

Well, it’s both.  The bottom line is always the bottom line, but it’s important to get there in a way that’s win-win for both the consumer (law firms and corporate law departments) and for the provider.  So, there needs to be creative solutions.  As a result, I think people are now “putting on their thinking caps” and coming up with new ways to price solutions because there are different needs.  I have my own ideas on how I want to use it, and so I want people to price accordingly.  I don’t want there to be a “one-size-fits-all” type of solution.  I think the vendors are hearing that, too.

You had a recent blog post about bottom line proportional review and you noted that the larger cases have a lot at stake, so the budget is much higher.  How does it work for smaller cases?

It’s going to take a legal method, and I think that the method I described (bottom line proportional review) is the way to make it happen.  In order to make bottom line driven review (where you’re basically setting a budget up front) to be acceptable to the requesting party, they’re going to want to make sure that this isn’t just another way to “hide the ball”.  They’re going to want to make sure that they can find the relevant evidence that they need to evaluate their case to either see that they’ve got a winning case (so they can move for a summary-judgment, establish a strong settlement position, or go to trial) or see that they have a weak case and value it accordingly.

We all want to find out as quickly as possible how good a case it is.  We really don’t want to spend all of our time and money just doing discovery.  The whole point of discovery is to discover how good your case is and then resolve it.

I’m very oriented to resolving cases.  That’s really most of my life.  I wasn’t an eDiscovery lawyer most of my career.  I was a trial lawyer, and I think that perspective is lacking from some of the vendors and some of the analysts and some of the other people in eDiscovery.  People seem to think discovery is an end in itself.  It’s not.  It’s just a way to prepare for trial.

So, there is no reason to get all of the relevant evidence.  That’s an archaic notion of the past.  There’s too much relevant evidence.  All that counts is the important relevant evidence.  The smoking guns are what counts.  The highly relevant or hot documents are what counts.

You do have to wade through some relevant documents to get there, but the point is to get there.  It gets back to my “seven plus or minus two” rule.  It’s not my rule.  It’s an old rule of persuasion.  That’s never going to change.  People are never going to remember more than seven documents at a trial.  They just can’t.  The juror’s mind is not capable of it.

Lawyers can handle probably several hundred exhibits, and they can keep it in their head.  But, they don’t make the decisions.  And, the several hundred exhibits are merely predicates or evidentiary foundations in order to get the key exhibits out there that you then use in your closing argument.

The point of discovery and litigation is to identify and locate these key documents.  When you understand that, then you’ll accept and understand the fact that you don’t need all relevant information, all relevant documents.  You just need the most highly relevant documents so that you can feel pretty confident you’ve got the handful of documents you need to try the case.

The thing that’s exciting about predictive coding is its ranking abilities.  You don’t have to look at the junk that’s not really that relevant.  You only look at the most relevant documents, whether it’s the most relevant 5,000, 50,000 or 100,000.  Whatever it is that’s appropriate to your size case.  You’re not going to look at 100,000 documents in a $250,000 dollar discrimination case.  It makes no sense.

That’s where you get back to proportionality.  It’s a somewhat long answer to your question, but people need to understand that this isn’t a way to hide the truth.  It’s really a way to get the truth out there in an efficient, economic manner.

So, based on the five dollar per document review cost example in your post, if you have $25,000 to spend, you can review the top 5,000 documents, right?

That’s right.  And the five dollars is just like a working number that you use.  Some document collections can be even more expensive and difficult.  For example, a collection with a lot of 20-page spreadsheets (where you actually determine what’s confidential and what’s not in each sheet) can drive that number up.  Banking cases are a nightmare.  You’ve got all this financial information, where some of it’s relevant and some of it’s not.  For other cases, it can be a lot cheaper.  But, you also have to take some vendor claims with a big grain of salt.  “Oh, I’ll do your whole thing for you for a buck a document.”  Will you?  Really?  What does that include?

Thanks, Ralph, for participating in the interview!

And to the readers, just a reminder that part two of our interview with Ralph Losey will be published tomorrow.  Don’t miss it!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: Brian Schrader of Business Intelligence Associates (BIA)
This is the fifth of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:
  1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Brian Schrader. Brian is 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.

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

Well, I think you don’t have to walk around the floor very much to see that this year everybody is talking about predictive coding.  I think you’re going to see that shake out a lot over the next year.  We’ve been doing predictive coding for about a year and a half now, and we have our own algorithms for that.  We have our review teams, and they’ve been using our algorithms to do predictive coding.  We like to call it “suggestive coding”.

What I expect you’ll find this year is a standard shakeout among providers because everybody talks about predictive coding.  The question is how does everybody approach it?  It’s very much a black-box solution.  Most people don’t know what goes on inside that process and how the process works.  So, I think that’s going to be a hot topic for a while.  We’re doing a lot of predictive coding and BIA is going to be announcing some cool things later this year on our predictive coding offerings.

Every provider that you talk to seems to have a predictive coding solution.  I’m really looking forward to seeing how things develop, because we have a lot of input on it and a lot of experience.  We have our review team that is reviewing millions and millions of documents per year, so we can compare various predictive coding engines to real results.  It gives us the ability to review the technology.  We look forward to being part of that conversation and I hope to see a little bit more clarity from the players and some real standards set around that process.

The courts have now also started to look at these algorithmic methods, Judge Peck in particular.  Everybody agrees that key word searching is inadequate.  But, people are still tentative about it – they say “it sounds good, but how does it work?  How are we going to approach it?”

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

Frankly, I thought we’d see a lot more competition for us in data collection.  A huge pain point for companies is how to gather all their data from all over the world.  It’s something we’ve always focused on.  I started to see some providers focus on that, but now it looks like everybody, even some of the classic data collection providers, are focusing more on review tools.  That surprises me a bit, though I’m happy to be left with a wide-open field to have more exposure there.

When we first came out with TotalDiscovery.com last year, we thought we’d see all sorts of similar solutions pop up out there, but we just haven’t.  Even the traditional collection companies haven’t really offered a similar solution.  Perhaps it’s because everybody has a “laser focus” on predictive coding, since document review is so much more expensive.  I think that has really overpowered the focus of a lot of providers as they’ve focused only on that.  We have tried to focus on both collection and review.

I think data processing has become a commodity.  In talking to customers, they don’t really ask about it anymore.  They all expect that everybody has the same base level capabilities.  Everybody knows that McDonald’s secret sauce is basically Thousand Island dressing, so it’s no longer unique, the “jig is up”.  So, it’s all about the ends, the collection, and the review.

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

Well, predictive coding again.  I think there’s an awful lot of talk but not enough detail.  What you’re seeing is a lot of providers who are saying “we’ll have predictive coding in six months”.  You’re going to see a huge number of players in that field this year.  Everybody’s going to throw a hat in the ring, and it’s going to be interesting to see how that all works out.  Because how do you set the standards?  Who gets up there and really cooperates?

I think it’s really up to the individual companies to get together and cooperate on this. This particular field is so critical to the legal process that I don’t think you can have everybody having individual standards and processes.  The most successful companies are going to be the ones that step up and work together to set those standards.  And, I don’t know for sure, but I wouldn’t be surprised if The Sedona Conference already has a subcommittee on this topic.

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

Our biggest announcement is around data collection – we’ve vastly expanded it.  Our motto is to collect “any data, anytime, anywhere”.  We’ve been providing data collection services for over a decade, and our collection guys like to say they’ve never met a piece of data they didn’t like.

Now, we’ve brought that data collection capability direction to TotalDiscovery.com.  The latest upgrade, which we’re previewing at the show to be released in March, will offer the ability to collect data from social media sites like Facebook, Twitter, as well as collections from Webmail and Apple systems.  So, you can collect pretty much anything through TotalDiscovery.com that we have historically offered in our services division. It gives you a single place to manage data collection and bring it all together in one place, and then deliver it out to the review platform you want.

We’re on a three-week development cycle, which doesn’t always mean new features every three weeks, but it does mean we’re regularly adding new features.  Mid-year in 2011, we added legal hold capabilities and we’ve also recently added other components to simplify search and data delivery.  Now, we’ve added expanded collection for social media sites, Webmail and Apple.  Later this year, we expect to release our predictive coding capabilities to enable clients to perform predictive coding right after collection instead of waiting until the data is in the review tool.

Thanks, Brian, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: DOJ Criminal Attorneys Now Have Their Own eDiscovery Protocols
Criminal attorneys, are you discouraged that there is a lack of eDiscovery rules and guidelines for criminal cases?  If you work for the Department of Justice or other related law enforcement agencies, cheer up!

As noted in the Law Technology News article, DOJ Lays Down the Law on Criminal E-Discovery Protocols, written by Evan Koblentz, the government’s Joint Electronic Technology Working Group (JETWG), led by the DOJ, unveiled its best practices guide for eDiscovery at a federal software summit in Washington on February 10.  The 21 page document, “intended for cases where the volume and/or nature of the ESI produced as discovery significantly increases the complexity of the case”, primarily consists of three sections:

  • Recommendations for ESI Discovery in Federal Criminal Cases: Provides a general framework for managing ESI, including planning, production, transmission, dispute resolution, and security;
  • Strategies and Commentary on ESI Discovery in Federal Criminal Cases: Provide more detailed guidance for implementing the recommendations – this section will evolve to reflect experiences in actual cases; and
  • ESI Discovery Checklist: One page checklist for addressing ESI production issues.

While the one page checklist has several items that would apply to any case, there are some items specific to criminal cases that would make it a handy reference for conducting eDiscovery on those cases.  The three sections are based on ten basic principles, which should have familiarity to those who have been dealing with eDiscovery in civil cases.  They are as follows:

  1. Lawyers have a responsibility to have an adequate understanding of electronic discovery.
  2. In the process of planning, producing, and resolving disputes about ESI discovery, the parties should include individuals with sufficient technical knowledge and experience regarding ESI.
  3. At the outset of a case, the parties should meet and confer about the nature, volume, and mechanics of producing ESI discovery. Where the ESI discovery is particularly complex or produced on a rolling basis, an on-going dialogue may be helpful.
  4. The parties should discuss what formats of production are possible and appropriate, and what formats can be generated. Any format selected for producing discovery should maintain the ESI’s integrity, allow for reasonable usability, reasonably limit costs, and, if possible, conform to industry standards for the format.
  5. When producing ESI discovery, a party should not be required to take on substantial additional processing or format conversion costs and burdens beyond what the party has already done or would do for its own case preparation or discovery production.
  6. Following the meet and confer, the parties should notify the court of ESI discovery production issues or problems that they reasonably anticipate will significantly affect the handling of the case.
  7. The parties should discuss ESI discovery transmission methods and media that promote efficiency, security, and reduced costs. The producing party should provide a general description and maintain a record of what was transmitted.
  8. In multi-defendant cases, the defendants should authorize one or more counsel to act as the discovery coordinator(s) or seek appointment of a Coordinating Discovery Attorney.
  9. The parties should make good faith efforts to discuss and resolve disputes over ESI discovery, involving those with the requisite technical knowledge when necessary, and they should consult with a supervisor, or obtain supervisory authorization, before seeking judicial resolution of an ESI discovery dispute or alleging misconduct, abuse, or neglect concerning the production of ESI.
  10. All parties should limit dissemination of ESI discovery to members of their litigation team who need and are approved for access, and they should also take reasonable and appropriate measures to secure ESI discovery against unauthorized access or disclosure.

Evan’s article provides comments from Andrew Goldsmith, the national criminal eDiscovery coordinator, regarding the efforts and intent of the document and training program for DOJ attorneys and other law enforcement personnel, as well as efforts of the department to determine how to apply commercial, civil litigation oriented, eDiscovery software to criminal cases.  It’s a good read and the guidelines look promising as a resource for criminal attorneys to manage eDiscovery in those cases.

So, what do you think?  Do these guidelines show promise for eDiscovery in criminal 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.

eDiscovery Trends: Tom Gelbmann of Gelbmann & Associates, LLC
This is the fourth of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:
  1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Tom Gelbmann. Tom is Principal of Gelbmann & Associates, LLC.  Since 1993, Gelbmann & Associates, LLC has advised law firms and Corporate Law Departments to realize the full benefit of their investments in Information Technology.  Tom has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; last year he and George Socha converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and George Socha launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle and there are nine active projects with over 300 members from 81 participating organizations.

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?  And which trend(s), if any, haven’t emerged to this point like you thought they would?

I’m seeing an interesting trend regarding offerings from traditional top tier eDiscovery providers. Organizations who have invested in eDiscovery related technologies are beginning to realize these same technologies can be applied to information governance and compliance and enable an organization to get a much greater grasp on its total content.  Greater understanding of location and profile of content not only helps with eDiscovery and compliance, but also business intelligence and finally – destruction – something few organizations are willing to address.

We have often heard – Storage is cheap. The full sentence should be: Storage is cheap, but management is expensive.  I think that a lot of the tools that have been applied for collection, culling, search and analysis enable organizations to look at large quantities of information that is needlessly retained. It also allows them to take a look at information and get some insights on their processes and how that information is either helping their processes or, more importantly, hindering those processes and I think it’s something you’re going to see will help sell these tools upstream rather than downstream.

As far as items that haven’t quite taken off, I think that technology assisted coding – I prefer that term over “predictive coding” – is coming, but it’s not there yet.  It’s going to take a little bit more, not necessarily waiting for the judiciary to help, but just for organizations to have good experiences that they could talk about that demonstrate the value.  You’re not going to remove the human from the process.  But, it’s giving the human a better tool.  It’s like John Henry, with the ax versus the steam engine.  You can cut a lot more wood with the steam engine, but you still need the human.

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

Based on the sessions that I’ve attended, I think there’s much more education.  There’s just really more practical information for people to take away on how to manage eDiscovery and deal with eDiscovery related products or problems, whether it’s cross-border issues, how to deal with the volumes, how to bring processes in house or work effectively with vendors.  There’s a lot more practical “how-tos” than I’ve seen in the past.

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

Well, I think one of the things I’m very proud of with EDRM is that just before LegalTech, we put out a press release of what’s happening with the projects, and I’m very pleased that five of the nine EDRM projects had significant announcements.  You can go to EDRM.net for that press release that details those accomplishments, but it shows that EDRM is very vibrant, and the teams are actually making good progress.

Secondly, George Socha and I are very proud about the progress of Apersee, which was announced last year at LegalTech.  We’ve learned a lot, and we’ve listened to our clientele in the market – consumers and providers.  We listened, and then our customers changed their mind.  But, as a result, it’s on a stronger track and we’re very proud to announce that we have two gold sponsors, AccessData and Nuix.  We’re also talking to additional potential sponsors, and I think we’ll have those announcements very shortly.

Thanks, Tom, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Best Practices: Google’s Blunder Keeps Them Under the (Smoking) Gun

As we noted back in November, a mistake made by Google during discovery in its lawsuit with Oracle could cost the company dearly, perhaps billions.  Here’s a brief recap of the case:

Google is currently involved in a lawsuit with Oracle over license fees associated with Java, which forms a critical part of Google’s Android operating system.  Google has leveraged free Android to drive mobile phone users to their ecosystem and extremely profitable searches and advertising.

Despite the use of search technology to cull down a typically large ESI population, a key email, written by Google engineer Tim Lindholm a few weeks before Oracle filed suit against Google, was produced that could prove damaging to their case.  With the threat of litigation from Oracle looming, Lindholm was instructed by Google executives to identify alternatives to Java for use in Android, presumably to strengthen their negotiating position.

“What we’ve actually been asked to do (by Larry and Sergey) is to investigate what technical alternatives exist to Java for Android and Chrome,” the email reads in part, referring to Google co-founders Larry Page and Sergey Brin. “We’ve been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.”

Lindholm added the words “Attorney Work Product” and sent the email to Andy Rubin (Google’s top Android executive) and Google in-house attorney Ben Lee; however, Lindholm’s computer saved nine drafts of the email while he was writing it – before he added the words and addressed the email to Lee.  Because Lee’s name and the words “attorney work product” weren’t on the earlier drafts, they weren’t picked up by the eDiscovery software as privileged documents, and they were produced to Oracle.

Judge William Alsup of the U.S. District Court in Oakland, California, indicated to Google’s lawyers that it might suggest willful infringement of Oracle’s patents and despite Google’s motion to “clawback” the email on the grounds it was “unintentionally produced privileged material”, Alsup refused to exclude the document at trial.  Google next filed a petition for a writ of mandamus with the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., seeking to have the appeals court overrule Alsup’s decision permitting Oracle to use the email as evidence in the trial.

On February 6, the Federal Circuit upheld Alsup’s ruling that the email is not privileged, denying Google’s mandamus petition. Observing that the email was written at the request of Google’s co-founders, Larry Page and Sergey Brin (who are not lawyers) and did not refer specifically to legal advice or the senior counsel’s investigation, the appeals court rejected Google’s petition.

As we noted before, organizing the documents into clusters based on similar content, might have grouped the unsent drafts with the identified “attorney work product” final version and helped to ensure that the drafts were classified as intended and not produced.

So, what do you think?  Could this mistake cost Google billions?  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: Jim McGann of Index Engines
This is the third of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:
  1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Jim McGann.  Jim is Vice President of Information Discovery at Index Engines.  Jim has extensive experience with the eDiscovery and Information Management in the Fortune 2000 sector. He has worked for leading software firms, including Information Builders and the French-based engineering software provider Dassault Systemes.  In recent years he has worked for technology-based start-ups that provide financial services and information management solutions.

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?  And which trend(s), if any, haven’t emerged to this point like you thought they would?

I think what we’re seeing is a lot of people becoming a bit more proactive.  I may combine your questions together because I’m surprised that people haven’t become proactive sooner.  LegalTech has included a focus on litigation readiness for how long? Ten years or so?  And we’re still dealing with how to react to litigation, and you’re still seeing fire drills occur.  There’s still not enough setting up of environments in the corporate world and in the legal world that would enable customers to respond more quickly.  It surprises me how little has been developed in this regard..

I think the reason for the slow start is that there are a lot of regulations that have been evolving and people haven’t really understood what they need to prepare and how to react.  There’s been ten years of LegalTech and we’re still struggling with how to respond to basic litigation requests because the volume has grown, accessibility arguments have changed, Federal rules have been solidified, and so forth.

What we’re seeing when we go and talk to customers (and we talk to a lot of end-user customers that are facing litigation) is IT on one end of the table saying, ‘we need to solve this for the long term’, and litigation support teams on the other end of the table saying, ‘I need this today, I’ve been requesting data since July, and I still haven’t received it and it’s now January’.  That’s not good.

The evolution is from what we call “litigation support”.  Litigation support, which is more on the reactive side to proactive litigation readiness, expects to be able to push a button and put a hold on John Doe’s mailbox.  Or, specifically find content that’s required at a moment’s notice.

So, I think the trend is litigation readiness.  Are people really starting to prepare for it?  Every meeting that we go into, we see IT organizations, who are in the compliance security groups, rolling up their sleeves and saying I need to solve this for my company long term but we have this litigation.  It’s a mixed environment.  In the past, we would go meet with litigation support teams, and IT wasn’t involved.  You’re seeing buzz words like Information Governance.  You’re seeing big players like IBM, EMC and Symantec jumping deep into it.

What’s strange is that IT organizations are getting involved in formalizing a process that hasn’t been formalized in the past.  It’s been very much, maybe not “ad hoc”, but IT organizations did what they could to meet project needs.  Now IT is looking at solving the problem long term, and there’s a struggle.  Attorneys are not the best long term planners – they’re doing what they need to do.  They’ve got 60 days to do discovery, and IT is thinking five years.  We need to balance this out.

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

We’re talking to a lot of people that are looking at next generation solutions.  The problems have changed, so solutions are evolving to address how you solve those problems.

There’s also been a lot of consolidation in the eDiscovery space as well, so people are saying that their relationship has changed with their other vendors.  There have been a lot of those conversations.

I’m not sure what the attendance is at this year’s show, but attendees seem to be serious about looking for new solutions.  Maybe because the economy was so bad over the past year or maybe because it’s a new budget year and budgets are freeing up, but people are looking at making changes, looking at new solutions.  We see that a lot with service providers, as well as law firms and other end users.

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

We’ve announced the release of Octane Version 4.3, which preserves files and emails at a bit level from MS Exchange and IBM Lotus Notes, as well as indexing forensics images and evidence files at speeds reaching 1TB per hour using a single node.  Bit-for-bit email processing and forensic image indexing speeds are unprecedented breakthroughs in the industry.  Bit-level indexing is not only faster but also more reliable because email is stored in its original format with no need for conversion.  Index Engines can also now index terabytes of network data including forensic images in hours, not weeks, like traditional tools.  So, we’re excited about the new version of Octane.

We’ve also just announced a partnership with Merrill Corporation, to provide our technology to collect and process ESI from networks, desktops, forensic images and legacy backup tapes, for both reactive litigation and proactive litigation readiness.  Merrill has recognized the shift in reactive to proactive litigation readiness that I mentioned earlier and we are excited to be aligned with Merrill in meeting the demands of their customers in this regard.

Thanks, Jim, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: Christine Musil of Informative Graphics Corporation (IGC)
This is the second of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:
  1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends? (Note: Christine was interviewed the night before the show, so there were obviously no observations at that point)
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Christine Musil.  Christine has a diverse career in engineering and marketing spanning 18 years. Christine has been with IGC since March 1996, when she started as a technical writer and a quality assurance engineer. After moving to marketing in 2001, she 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.

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?  And which trend(s), if any, haven’t emerged to this point like you thought they would?

That’s a hard question.  Especially for us because we’re somewhat tangential to the market, and not as deeply enmeshed in the market as a lot of the other vendors are.  I think the number of acquisitions in the industry was what we expected, though maybe the M&A players themselves were surprising.  For example, I didn’t personally see the recent ADI acquisition (Applied Discovery acquired by Siris Capital) coming.  And while we weren’t surprised that Clearwell was acquired, we thought that their being acquired by Symantec was an interesting move.

So, we expect the consolidation to continue.  We watched the major content management players like EMC OpenText to see if they would acquire additional, targeted eDiscovery providers to round out some of their solutions, but through 2011 they didn’t seem to have decided whether they’re “all in” despite some previous acquisitions in the space.  We had wondered if some of them have decided maybe they’re out again, though EMC is here in force for Kazeon this year.  So, I think that’s some of what surprised me about the market.

Other trends that I see are potentially more changes in the FRCP (Federal Rules of Civil Procedure) and probably a continued push towards project-based pricing.    We have certainly felt the pressure to do more project-based pricing, so we’re watching that. Escalating data volumes have caused cost increases and, obviously, something’s going to have to give there.  That’s where I think we’re going to see more regulations come out through new FRCP rules to provide more proportionality to the Discovery process, or clients will simply dictate more pricing alternatives.

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

We just announced a new release of our Brava!® product, version 7.1, at the show.  The biggest additions to Brava are in the Enterprise version, and we’re debuting a the new Brava Changemark®  Viewer (Changemark®) for smartphones as well as an upcoming Brava HTML client for tablets.  iPads have been a bigger game changer than I think a lot of people even anticipated.  So, we’re excited about it. Also new with Brava 7.1 isvideo collaboration and improved enterprise readiness and performance for very large deployments.

We also just announced the results of our Redaction Survey, which we conducted to gauge user adoption of toward electronic redaction software. Nearly 65% of the survey respondents were from law firms, so that was a key indicator of the importance of redaction within the legal community.  Of the respondents, 25% of them indicated that they are still doing redaction manually, with markers or redaction tape, 32% are redacting electronically, and nearly 38% are using a combined approach with paper-based and software-driven redaction.  Of those that redact electronically, the reasons that they prefer electronic redaction included professional look of the redactions, time savings, efficiency and “environmental friendliness” of doing it electronically.

For us, it’s exciting moving into those areas and our partnerships continue to be exciting, as well.  We have partnerships with LexisNexis and Clearwell, both of which are unaffected by the recent acquisitions.  So, that’s what’s new at IGC.

Thanks, Christine, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Case Law: Predictive Coding Considered by Judge in New York Case

In Da Silva Moore v. Publicis Groupe, No. 11 Civ. 1279 (ALC) (S.D.N.Y. Feb. 8, 2012), Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York instructed the parties to submit proposals to adopt a protocol for e-discovery that includes the use of predictive coding, perhaps the first known case where a technology assisted review approach was considered by the court.

In this case, the plaintiff, Monique Da Silva Moore, filed a Title VII gender discrimination action against advertising conglomerate Publicis Groupe, on her behalf and the behalf of other women alleged to have suffered discriminatory job reassignments, demotions and terminations.  Discovery proceeded to address whether Publicis Groupe:

  • Compensated female employees less than comparably situated males through salary, bonuses, or perks;
  • Precluded or delayed selection and promotion of females into higher level jobs held by male employees; and
  • Disproportionately terminated or reassigned female employees when the company was reorganized in 2008.

Consultants provided guidance to the plaintiffs and the court to develop a protocol to use iterative sample sets of 2,399 documents from a collection of 3 million documents to yield a 95 percent confidence level and a 2 percent margin of error (see our previous posts here, here and here on how to determine an appropriate sample size, randomly select files and conduct an iterative approach). In all, the parties expect to review between 15,000 to 20,000 files to create the “seed set” to be used to predictively code the remainder of the collection.

The parties were instructed to submit their draft protocols by February 16th, which is today(!).  The February 8th hearing was attended by counsel and their respective ESI experts.  It will be interesting to see what results from the draft protocols submitted and the opinion from Judge Peck that results.

So, what do you think?  Should courts order the use of technology such as predictive coding in litigation?  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.