Close
Enter your
text here

eDiscoveryDaily

eDiscovery Case Law: U.S. Court Rules on ECPA Protection of Emails in the Cloud
 

An October 3 decision by the Ninth Circuit Court of Appeals offers new clarity in defining and protecting the eDiscovery rights of non-U.S. nationals using U.S. services online, by ruling that emails stored on servers located within the U.S. are protected by national laws on ESI.

In Suzlon Energy Ltd v. Microsoft Corporation, the court determined that holders of online accounts whose servers are located in the U.S., regardless of their location or nationality, are protected by the Electronic Communications Privacy Act of 1986, commonly known as the "ECPA." The ECPA ensures that the disclosure of emails by electronic communication service providers is limited and restricted to specific circumstances.

The Suzlon case originated out of an Australian case brought by an Indian company (Suzlon) against an Indian defendant, Rajagopalan Sridhar and put the Ninth Circuit Court's opinion on the reach of the ECPA to the test.

  • The plaintiff's legal counsel sought access to emails in the defendant's Hotmail account, stored on Microsoft servers located in the U.S.
  • The defendant did not provide consent for his emails to be used in discovery, nor did Microsoft consent to release the emails in question.
  • Microsoft's objection brought the case before the U.S. District Court for the Western District of Washington and later before the Ninth Circuit Court of Appeals, both of which agreed that the emails were protected by the ECPA.
  • Despite the plaintiff's and defendant's Indian nationality, and the fact that the suit in question was Australian, the U.S. court ruled in a manner that creates a powerful precedent for future lawsuits related to electronic communication providers whose servers are located in the U.S. As a result of this case, it has become clear that any users with accounts in U.S.-held cloud services will be subject to the same protections under the ECPA as a U.S. citizen.

So, what do you think? Does this ruling offer fair and sensible protect to U.S.-based companies and the users of their cloud services, or does it unnecessarily complicate the field of international eDiscovery? Please share any comments you might have or if you'd like to know more about a particular topic.

Marketing a Litigation Support / eDiscovery Department within a Law Firm: The “Marketing Mind-Set”, Part 3
 

In the last two posts, we’ve talked about some “marketing mind-set” principles that are appropriate for a litigation support / eDiscovery department.  There’s just one more for you to consider:

In all of the marketing that you do, you need to stay focused on selling solutions to your clients’ problems rather than on selling your services.  Don’t promote products and services.  Promote solutions.

Always be thinking and talking about:

  • How you can make your clients more efficient.
  • How you can save your clients money.
  • How you can make your clients’ jobs easier.
  • How you can free up their time so they can focus on substantive work.

Always focus on the problem you can solve, or the task that you can make easier, or the costs that you can cut.  This will get their attention.  This will peak their interest.  This will be the deciding factor in their choice to involve you in a case. 

Selling solutions rather than services should be part of any “big picture” marketing that you do as well as part of one-on-one marketing that you do to individual attorneys and litigation teams in the firm.

The mind-set principles that we’ve covered in the past few posts are critical. Regardless of how many presentations and newsletters and brochures that you do… those activities are likely to fail if you haven’t approached them with these mind-set principles in mind. So, let me recap them here:

  1. Marketing is anything that you do to get a new customer of keep an existing customer.
  2. Whether you realize it or not, you are marketing all the time.  It is not an occasional, planned activity. It is a mode of operation.
  3. Think of your department as a stand-alone company, and think of the litigators in your firm as clients.
  4. Focus on selling solutions to your clients’ problems, not on selling services and products.

Be sure to look for posts in this series next week, when we start discussion of marketing mechanisms for getting new customers. We’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.

Marketing a Litigation Support / eDiscovery Department within a Law Firm: The “Marketing Mind-Set”, Part 2
 

Last week, we started talking about the right “marketing mind-set” for a litigation support / eDiscovery department.  Here are a couple more mind-set adjustments you may need to make:

  1. Stop thinking of your group as a department within a law firm.  Instead, think of your group as a “stand-alone business” – specifically, a service business.
  2. Stop thinking of the attorneys and paralegals in the firm as your co-workers.  Think of them as your clients.

There’s a really good reason for thinking like this:

It’s appropriate for a litigation support department.

Unlike other departments in the firm, attorneys can choose whether to use your department or not.  Unlike most other departments in the firm, you have competition.  Attorneys can’t go outside the firm to have invoices generated.  They have to use the firm’s accounting department.  They can, however, go outside the firm for litigation support services. They can turn to consultants and litigation support / eDiscovery service and product providers.  You need to take steps to ensure that your department is their first choice.

What does this mean – to operate as a stand alone business — in practice?  There are three key things you need to do:

  1. Stay focused on promoting your offerings to litigators in the firm – both litigators who are using your services and litigators who are not yet using your department.
  2. Make it very easy and painless for your clients to work with you.
  3. Stay focused on delivering premier customer service to your clients.

Over the next few weeks, I’m going to give you tips and suggestions in each of these areas.

We’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.

eDiscovery Trends: Service Providers Unite!

While mergers and acquisitions of major eDiscovery providers (such as Symantec’s acquisition of Clearwell and HP’s acquisition of Autonomy) dominate the headlines, the majority of eDiscovery providers are actually small to midsized companies that provide a full range of services from coast to coast.  To enable the small/midsized providers to compete with the eDiscovery “bohemoths” of the world, Jerry Correia and Greg Bayless formed the Legal Service Providers Association (LSPA).

The LSPA’s mission is to help the small/midsized legal service providers grow and thrive by providing access to increased sales and marketing opportunities, training and certification programs, supplier discounts, and human resources support. The idea is that “strength in numbers” can enable LSPA’s members to compete on an equal footing with the “big boys”.

Jerry and Greg have 38 years experience in the legal services industry, managing companies providing services to law firms and corporate legal departments.  They’ve spent the last 15 years to running companies focused on helping vendors in the legal services industry improve and grow by providing training, consulting, staffing and national referral services.  They started the LSPA in January of this year with the belief that small to midsized companies are the best suited for and the most dedicated to providing the service excellence clients have come to expect and demand, but few providers can develop and negotiate the kinds of programs and discounts available to Fortune 500 corporations by themselves.  Through membership in the LSPA, members can benefit from savings including up to 60% from suppliers such as Staples or UPS, which not only benefits the providers, but also their clients where savings can be passed along.

Since announcing its charter member program back in February, the LSPA has added 40 charter members to date.  While all members of the LSPA enjoy benefits such as training and supplier credits and discounts, and sales/marketing and technical support, charter member companies receive additional exposure and branding opportunities through premium placements on their website, emails, press releases and newsletters.

Part of LSPA’s education program includes webinars available to its members.  In the past two months, LSPA has conducted webinars related to understanding the risks associated with collecting ESI (conducted by Jason Park, owner of MD5 Group) and top 10 eDiscovery trends and predictions (conducted by Maura R. Grossman, Counsel at Wachtell, Lipton, Rosen & Katz, and Ronald J. Hedges, former United States Magistrate Judge).

Want to learn more?  Tomorrow, the LSPA is conducting an Informational and Membership Benefits webinar where they will discuss the vision for the LSPA, describe member benefits and discuss how to join the organization.  To register for the webinar, click here.

So, what do you think?  Do you use small or medium providers for eDiscovery services?  Does the LSPA make those providers better?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: CloudNine Discovery is a charter member of the LSPA.

eDiscovery Searching: A Great Example of Why Search Results Need to Be Tested
 

In my efforts to stay abreast of current developments in eDiscovery (and also to identify great blog post ideas!), I subscribe to and read a number of different sources for information.  That includes some of the “web crawling” services that identify articles, press releases and other publications such as the Pinhawk Law Technology Daily Digest, which is one of my favorite resources and always has interesting stories to read.  I also have a Google Alert set up to deliver stories on “e-Discovery” via a daily email.

So, I got a chuckle out of one of the stories that both sources (and probably others, as well) highlighted last week:

A+E, Discovery get ready to roll out

The story is about two of the biggest players in the global TV, A+E Networks and Discovery Networks, rolling out their channels into India and Latin America respectively.  The article proceeds to discuss the challenges of rolling out these channels into markets with various requirements and several languages and dialects included in those markets.

This story has nothing to do with eDiscovery.

Why did it wind up in the list of eDiscovery stories returned by these two services?  Because the story title “A+E, Discovery get ready to roll out” retrieved a hit on “e-Discovery”.  Many search engines are generally set to ignore punctuation when searching, so a search for “e-Discovery” actually looks like a search for “e Discovery” to a search engine (keep in mind searches are also usually case insensitive).  So, a document with a title of “A+E, Discovery get ready to roll out” could actually be viewed by a search engine as “a e discovery get ready to roll out”, causing the document to be considered a “hit” for “e discovery”.

This is just one example why search results can retrieve unexpected results.  And, why a defensible search process (such as the “STARR” approach outlined here) that involves testing and refining searches is vital to maximizing your search recall and precision.

BTW, this can happen to any search engine, so it’s not a reflection on either Pinhawk or Google.  Both are excellent resources that can occasionally retrieve non relevant results, just like any other “web crawling” service.

So, what do you think?  Did you see this story crop up in the eDiscovery listings?  Have you encountered similar examples of search anomalies?  Please share any comments you might have or if you’d like to know more about a particular topic.

State eDiscovery Rules: Florida Moves to Adopt New Civil Procedure Rules on eDiscovery
 

Florida is currently preparing to adopt a set of changes to its Rules of Civil Procedure with regard to discovery of ESI, closely founded on the changes made to the Federal Rules in 2006. Based on the recommendation of the Florida Civil Rules Electronic Discovery Subcommittee, the full Rules Committee voted on implementing changes now rather than waiting until 2013 when these rules would normally be considered.

Florida eDiscovery Rules to Mimic Federal Rules – Mostly

On July 29, the Board of Governors of the Florida Bar accepted the plan to adopt changes as soon as this fall – changes that essentially copy those made to the Federal Rules except for the elimination of the Federal Rule 26(f) "meet and confer" conference, which will not be considered a mandatory part of discovery of ESI by Florida courts.

However, since this type of early conference is required by circuit courts in Miami, Orland and Tampa – three of Florida's largest judicial areas – that should minimize the risk that issues of major importance regarding eDiscovery will be overlooked, at least in many major business cases. What's more, Florida has a special rule that mandates early conferences in cases that are considered "complex".

New Florida Rules

The new rules are expected to have a significant positive effect on Florida courts, for several reasons:

  • The near-duplication of current federal rules for eDiscovery provides Florida courts with much-needed guidance on the role and implications of ESI in discovery.
  • It creates consistency between federal and state rules, important where national corporations may be involved in cases in Florida.
  • It also enables Florida courts to rely on federal precedent, preventing Florida lawyers from the need to "reinvent the wheel," and allowing them to draw on federal decisions and judgments.
  • Finally, the similarities between the new Florida rules and existing federal rules will prevent plaintiffs from "shopping" courts depending on the rules and regulations assigned to eDiscovery.

With the improvement in clarity of eDiscovery procedures and the strong connection between state and federal rules, these amendments to the Florida Rules of Civil Procedure seem poised to make discovery proceedings simpler and easier in the sunshine state.

So, what do you think? Are the changes to Florida's eDiscovery procedures positive? Is the omission of something like Federal Rule 26(f) a serious problem, or is it insignificant? Please share any comments you might have or if you'd like to know more about a particular topic.

Marketing a Litigation Support / eDiscovery Department within a Law Firm: The “Marketing Mind-Set”
 

As we discussed yesterday, successful marketing of a litigation support / eDiscovery department within a law firm is a significant “key to success” to the success of such a department.  For marketing efforts to be successful in a law firm, they have to be approached with the right “mind-set”.  This may require making some adjustments to how litigation support / eDiscovery department members think about marketing, and perhaps even some adjustments to how the department operates.

As a first step, it’s important that everyone in the department has a common understanding of what “marketing is”.  I looked it up in the New Oxford American dictionary, and here’s their definition:

“The action or business or promoting and selling products or services, including market research and advertising”.

This definition is accurate, but I’m not crazy about it.  I don’t think it makes a strong enough point.  I like this, bare-boned and “to the point” definition better:

Marketing is anything that you do get a new customer or to keep an existing customer.

Yes, marketing includes advertising and market research.  Successful marketing also includes lots of little things that you do everyday.  It even includes all the casual conversations you have people in your firm.  So, here’s a “mind-set adjustment you may need to make:

Mind-Set Principle #1:  Don’t think of marketing as an occasional, planned activity.  Think of it as a mode of operation.

Whether you realize it or not, when you are on the job, you are marketing.  Every time you speak with someone in the firm, you are marketing.  Every time you send an email to someone in the firm, you are marketing.  Every time you have someone in your office and they look around and see how organized or disorganized you are, you are marketing.  And this goes for everyone in the department. 

Stay tuned for next week’s posts in this series, where we’ll cover a few more marketing mind-set principles.

In the meantime, we’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.

Marketing a Litigation Support / eDiscovery Department within a Law Firm: Introduction
 

You may have seen the movie “Field of Dreams”.  In that film, Ray – the main character – builds a baseball field on his farm in Iowa.  Famous, deceased baseball players like Shoeless Joe Jackson appear to play ball on the field, and fans travel from all over to watch the ball games.  Throughout the movie, a voice tells Ray “If you build it, they will come”.

If you look this film up in a movie directory, it’s categorized as a “fantasy”.  And this statement – “If you build it, they will come” – is a fantasy too.  This just doesn’t work in real life.  We have to do more than build something:

  • We have to let people know about it,
  • We have to convince people that it’s something that want or something that they need, and
  • We need to continuously remind people about it.

This is certainly the case for law firm litigation support / eDiscovery departments.  These departments offer invaluable services to law firm litigators.  They make litigators more effective and more efficient.  All too often though, these departments are underutilized because lawyers don’t recognize opportunities to use the services.  I’ve worked with some departments that have been hugely successful in providing services, and with others that have been less so.  There are several “keys to success”, but one very significant, common key I’ve seen in each successful department has been good marketing within the firm.

In this blog series (which will run over the next several weeks), we’re going to cover marketing techniques that work in a law firm.  Specifically, we’ll cover:

  • The Marketing Mind-Set,
  • Getting New Customers, and
  • Keeping Existing Customers.

In the meantime, we’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.

eDiscovery Trends: Opinions…Everybody Has One
 

With the number of presidential candidacy polls already being conducted with over a year(!) before the 2012 presidential election, it’s no surprise that just about everyone is willing to express an opinion on just about anything.  With that in mind, one of the best eDiscovery blogs out there, Ralph Losey’s e-Discovery Team blog, is currently conducting a confidential poll of its readers related to various eDiscovery topics.

Using Polldaddy.com, Ralph asks questions related to various eDiscovery topics, including confidentiality orders, privacy rights, eDiscovery certification and new Federal Rules for eDiscovery.  He even asks a polling question of his readers as to whether they like these polls!  Amazingly, 13 people (10.48%) so far have responded ‘no’ to that question, which makes me wonder why they would take the time to respond when they don’t like polls?  Hmmm…  😉

Each of the polling questions not only provides a button to vote, but also provides a link to view results.  If there’s an end date to the poll at some point, Ralph doesn’t indicate one, so it appears that the ‘polls’ are open indefinitely.  The questions each have ‘yes’ and ‘no’ selections, along with an ‘other’ (with space to put in a comment and usually a fourth qualifying option (for example, question #2 below provides a choice for ‘Most of the time, but not always’).

I don’t want to “steal anyone’s thunder” and report current results, but you can use the link above to check out current results for each of the questions.  I will say that it appears that most of the questions have at least 100 responses so far, with some having a clear majority opinion and others being much more evenly distributed in responses.  Here are the questions Ralph asks in his blog post (excepting the aforementioned question about liking polls):

  1. Should courts routinely enter umbrella confidentiality protective orders during the discovery phase of the case?
  2. Should the public have a right to see all information filed with a court?
  3. Should all information accepted into evidence in a trial be disclosed to the public?
  4. Should Plaintiffs in civil suits have a right to protect from public disclosure any of their confidential information that is directly relevant to their case?
  5. Should Defendants in civil suits have a right to protect from public disclosure their confidential information that is directly relevant to the case?
  6. Should corporations have the same privacy rights as individuals?
  7. Is lack of privacy a problem in the United States?
  8. Are you concerned about your employer's right to read your email?
  9. Would you like stronger U.S. privacy laws where no one can read your email and other personal communications without your permission? (multiple answers allowed)
  10. Would you like to see privacy protection on the Internet strengthened?
  11. Do you agree with Patrick Oot? (and his criticism of eDiscovery certification programs)
  12. Do you think there is a need for certification of expertise in the field of electronic discovery?*
  13. Do you think there is a need for extensive training programs in e-discovery law?
  14. Do we need to amend the Federal Rules of Civil Procedure again soon to address e-discovery issues?
  15. Do we need to amend the FRCP to add one or more new rules on preservation?
  16. Should the rules be amended to limit the scope of relevancy in discovery?

*I have a ‘bone to pick’ with one of the potential responses to question 12 (Yes, but only State Bar Associations should do it) as it implies that the only people who need certification are attorneys and other legal practitioners, when technologists and consultants need it too.

I encourage you to check out the post, vote and view current results.  Even if you don’t like polls.  😉

So, what do you think?  Can we learn anything from polls like this?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Law: Model Order Proposes to Limit eDiscovery in Patent Cases
 

A recent article in Texas Lawyer discussed the new model order proposed by Federal Circuit Chief Judge Randall Rader as a measure against the "excesses" of eDiscovery production. As noted at the 2011 Eastern District of Texas Bench Bar Conference in Irving last week, the "Model Order on E-Discovery in Patent Cases" was unanimously voted on by the Federal Circuit Advisory Council and, as a result, could significantly alter the way discovery materials are used in patent cases.

What's Wrong with eDiscovery Now?

In his speech at the 2011 Eastern District of Texas Bench Bar Conference, "Thoughts on the Status and Direction of Patent Litigation in the United States," Judge Rader accuses the courts of becoming “intolerantly expensive”, forcing “accused infringers to acquiesce to non-meritorious claims” therefore imposing “an unhealthy tax on innovation and open competition”.  He compared the model order to the current Federal Rule of Civil Procedure 30, which limits cases to 10 depositions of 7 hours or fewer.

Rader said "the greatest weakness of the U.S. court system is its expense. And the driving factor for that expense is discovery excesses." Hence, the proposed model order to save the participants in these cases time and money.

Model Order Proposes Limits on eDiscovery

Rader's model order would create several limits on the production of electronically stored information in patent cases, including:

  • Exclusion of metadata from eDiscovery production requests without "good cause";
  • Restrictions on email production requests to specific issues and “not general discovery of a product or business”;
  • Delaying of email production requests until after disclosures about the patents, the accused uses of the invention, relevant financial information and the prior art;
  • A maximum of five custodians per party in email requests, and only five search terms each, unless courts specifically allow in excess of that number (if litigants submit requests that exceed those court orders, they must pay for the extra production);
  • Receiving parties cannot use materials asserted by producing parties as attorney-client or work product privileged;
  • Prohibitions on the use of privileged information produced as part of a mass production or other inadvertent release.

For more information about this model order and its implications, see Model Order Would Limit E-Discovery in Patent Cases.

So, what do you think?  Will the model order “catch on” as a way to limit the eDiscovery possible in patent cases?  Will other jurisdictions adopt the model order? Please share any comments you might have or if you'd like to know more about a particular topic.