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eDiscoveryDaily

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.

eDiscovery Trends: Sometimes the Vendor Sues the Law Firm – And Wins!
The eDiscovery malpractice case involving McDermott, Will & Emery has captured considerable interest in the industry and this blog, with recent posts here, here and here to relate developments in the case associated with inadvertent production of 3,900 privileged documents.

Sometimes, the “shoe is on the other foot”, so to speak.

As noted in David’s Snow’s article on Law Technology News entitled Is Cataphora Case a Sign of Vendor-Law Firm Fights to Come?, Cataphora (which has its legal division acquired by Ernst & Young since the case was filed) won a judgment of $317,113 against several big-time mass-torts plaintiffs firms in a breach of contract case.

In Cataphora, Inc. v. Parker et al., Cataphora sued the plaintiffs firms associated with the Chinese drywall multidistrict litigation for breach-of-contract, for cancelling the contract for pre-trial document review after receiving an invoice for an up-front fee of $366,000. Cataphora never did the work.

According to Roger Chadderdon, technology counsel at Cataphora, who represented the company in court, “We got screwed,”. “Their strategy from day one was to drag this out as long as possible to make it go away.”  He says the plaintiffs firms told Cataphora, “Sue us if you dare.”

They dared, and the jury decided in favor of Cataphora, that the contract was enforceable, and issued the award. This case was tried in the Northern District of California Magistrate court – an appeal is expected.

The plaintiffs firms associated with this litigation have been involved in a wide variety of multimillion dollar class-action lawsuits, ranging from Vioxx to the BP oil spill to the Toyota acceleration defect to the Bridgestone / Firestone tire cases.

“These guys are the worst of hypocrites that you can possibly find,” Chadderdon says. “They claim to be trying to help the little guy, but what they’re doing is trying to put more money in their own pockets. Everybody knows that, but this is a case that illustrates it beyond what I have ever seen.”

Snow’s article quotes Tom O’Connor, a previous thought leader on this blog, for reactions, and O’Connor asked the question “How many vendors have you ever heard of suing lawyers and winning?”,  O’Connor noted that “Mostly the dirty linen in this stuff never goes public.  In the old days, they’d settle the case. From the firm point of view, nobody wanted their business practices aired. That’s not the sort of lawsuit that ever would’ve been filed 5 years ago.”

As Snow’s article notes, the Above the Law blog has a more extensive write-up on the case for more information.

So, what do you think?  Do the McDermott and Cataphora cases signal a trend of contentious relationships between vendor and law firm?  Or are they aberrations?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Court Says Lack of eDiscovery Rules for Criminal Cases is a Crime

A New York district court recently ordered the United States Government to reproduce thousands of pages of electronic discovery materials in a criminal case involving the distribution of cocaine.

In United States v. Briggs, No. 10CR184S, 2011 WL 4017886 (W.D.N.Y. Sept. 8, 2011), the Government produced thousands of pages of electronic documents and a number of audio recordings, none of which were text searchable. The court ultimately decided that the onus of producing searchable materials for eDiscovery fell on the Government itself.

  • Defendants requested that the Government reproduce the discovery materials in a searchable format, but the Government refused, stating that it had used a program “routinely used” in criminal cases and would not bear the storage burden or cost of reproducing the documents.
  • The defense argued that the volume of production was virtually impossible to navigate without the ability to sort or search the documents, and that the materials presented for discovery lacked some relevant information. The court later made the comparison that a paper equivalent to this discovery situation “would be if the Government took photographs of thousands of pages… put them in boxes, and invited inspection by defense counsel.”
  • In light of the absence of a rule or standard for discovery of electronic materials in criminal cases such as this one, the court referred to other criminal cases in which the same issues were discussed, including United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) and United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008). Both of these cases dealt at some point with similar debates over document format and extensive discovery production, with different findings of whether the producing party was required to produce in the requested format.
  • The court decided that, in light of the absence of a clear standard, the Government was the party “better able to bear the burden of organizing these records for over twenty defendants in a manner useful to all” and ordered the Government to produce the files in searchable PDF or native format.
  • Finally, the court expressed its hope that the Advisory Committee on Criminal Rules would soon establish rules addressing the production of ESI in criminal cases.

So, what do you think? Was the court fair to put the onus of searchable text production on the Government? Should there be similar rules governing eDiscovery issues in the Federal Rules of Criminal Procedure as there are in the Federal Rules of Civil Procedure? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth
Despite the recent economic recession resulting in “crashing” corporate profitability, eDiscovery is still growing as an industry, according to a Market Research Report now available from IBISWorld.

As revealed in a press release announcing the report, revenue in the eDiscovery industry is growing at an annual rate of 5.6% over the last five years to an estimated $786.5 million in 2011.  In line with a rebound in corporate profitability last year, eDiscovery industry revenue jumped 9.1% then and is anticipated to exceed the five-year average growth rate again this year, with an increase of 7.6%.  As the press release notes, “[t]he copious amount of electronically stored information (ESI) has made e-discovery services resilient in the face of tough economic conditions”.  In addition, 60% of law firms are planning on increasing their eDiscovery staff in the next 6 months, according to a survey of 45 AmLaw 200 firms conducted by The Cowen Group.

The IBISWorld press release also notes that while eDiscovery revenue has grown, the number of participants in the industry has declined as the industry has continued to consolidate, with major acquisitions including Symantec Corporation’s acquisition of Clearwell and Hewlett-Packard’s acquisition of Autonomy in 2011 alone.  As a result, the number of industry participants has dropped an estimated average annual rate of 2.0% over the five years to 2011, to 612 businesses.

With corporate profit expected to grow at a rate of 7.3% annually over the next five years (to 2016), continued spiraling growth of ESI volumes and growing demand from the legal market, IBISWorld expects eDiscovery industry revenue to continue to rise at an average annual rate of 6.1% over those five years, to reach $1.1 billion by the end of 2016.  Considerable growth in ESI and the rise of social networks is expected to continue to fuel the demand for new and advanced eDiscovery products like:

  • Processing and Analysis Software,
  • Collection Software,
  • Review Software,
  • Legal Hold Software, and
  • Consulting Services.

The full Market Research report from IBISWorld is available for purchase and download here.

I guess it’s true: People do continue to sue each other as much (and even more) during tough economic times as they do during prosperous times!  And, they certainly continue to have more data.

So, what do you think?  Do these numbers surprise you?  Are you as busy (or even busier) than you were five years ago?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Sedona Conference Provides Guidance for Judges
Last month, The Sedona Conference® made a public comments version of the Cooperation Proclamation: Resources for the Judiciary available on the Sedona Conference website. The Sedona Conference Cooperation Proclamation has set a non-trivial goal- to teach the profession to collaborate during the discovery process instead of the traditional gladiatorial style of litigation. The Resources for the Judiciary document aims to provide judges with a foundation for creating a collaborative and non-adversarial approach to managing eDiscovery.

The Cooperation Proclamation was published in 2008 and is a short document that argues that if lawyers work together during the discovery phase, the merits of the underlying dispute are more likely to get a fair hearing. Specifically, it calls on lawyers to “work more collaboratively during the discovery phase so that greater time and attention (and money) can be spent on litigating the merits of the underlying dispute.”

The Resources for the Judiciary distinguishes between “active case management” and “discovery management.” The former can be characterized as a proactive and the latter as a reactive judicial approach to managing discovery. While offering guidance for both approaches, the proclamation urges judges to take an active case management model approach. That is not to say that judges should make decisions for parties, but to provide “a clear set of expectations designed to move the evidence-gathering phase of the litigation forward in a speedy and inexpensive way, without the cost, delay, and gamesmanship associated with unmanaged discovery.”

The Resources for the Judiciary is a detailed and practical document, providing a practical “toolkit” to train and support judges in techniques of discovery cooperation, collaboration, and transparency. It is organized by common stages of discovery disputes from a judge’s perspective. Eighteen issue areas are listed, beginning with preservation and continuing through topics like choosing search methodology and ending with everyone’s least favorite issue, sanctions. Each topic area lists the Federal Rule that applies to any given topic, an explanation of the issue, and practical guidance for achieving successful resolution of disputes. Each section includes detailed guidance in the form of current case law and examples of orders from the bench.

The Resources make the following recommendations:

  • Judges should adopt a “hands-on” approach to case management early in each action;
  • Judges should establish deadlines and keep parties to those guidelines (or make reasonable adjustments) with periodic status reports or conferences;
  • Judges should encourage the parties to meet before discovery commences to develop a realistic discovery plan;
  • Judges should encourage proportionality in preservation demands and expectations and in discovery requests and responses;
  • Judges should exercise their discretion to limit or condition disproportionate discovery and shift disproportionate costs;
  • If necessary, judges should exercise their authority to issue sanctions under the relevant statutes, rules, or the exercise of inherent authority on counsel or parties who create unnecessary costs or delay, or who otherwise frustrate the goals of discovery by “gaming the system”.

The Sedona Conference has acknowledged that cooperation is contrary to the adversarial instincts lawyers have been taught, and that it will require a generational shift for the nature of litigation to change. But there is perhaps no better way to encourage lawyers to cooperate than to create and active and informed judiciary on eDiscovery issues.

To submit a public comment, you can download a public comment form here, complete it and fax (yes, fax) it to The Sedona Conference® at 928-284-4240.  You can also email a general comment to them at tsc@sedona.net.

So, what do you think?  Can guidance like this help prevent intractable discovery disputes? Please share any comments you might have or if you’d like to know more about a particular topic.