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eDiscoveryDaily

eDiscovery Trends: Social Media Lessons Learned Through Football
 

The NFL Football season begins tonight with the kick-off game pitting the last two Super Bowl winners – the New Orleans Saints and the Green Bay Packers – against each other to start the season.

An incident associated with my team – the Houston Texans – recently illustrated the issues associated with employees’ use of social media sites, which are being faced by every organization these days and can have eDiscovery impact as social media content has been ruled discoverable in many cases across the country.

Last year’s NFL rushing leader, Arian Foster, recently “tweeted” a picture of the MRI image showing his injured hamstring to all of his followers on Twitter. The “tweet” provided an explanation of where his hamstring was specifically damaged.

The problem is that NFL teams guard specific injury information regarding their players as if they were trade secrets and in a sport where sidelining your opponents’ best players is a competitive advantage, telling those opponents where your injury is located is not a wise move (what was he thinking?).  Also, there are strict guidelines within the NFL regarding the disclosure of injury information because (big surprise!) it can impact betting on the games.

Foster, who subsequently “tweeted” that he was just joking around, provided yet the latest reminder that former congressman Anthony Weiner and many others have provided before: think before you hit send.

But, as bad as the consequences can be to individuals who post content on social media sites unwisely, it can be just as bad (or worse) for organizations that employ those individuals.

Postings on social media sites by employees can range from simply embarrassing for an organization from a public relations standpoint to downright damaging to the organization in the form of disclosure of confidential information.  The risk is clear.  Yet, in the socially technological world in which we live today, it is impractical for organizations to “ban” use of social media sites by their employees.  It’s going to happen and companies have to be prepared to address it.

The best way to address it is to implement a sound social governance policy that provides guidelines for acceptable and unacceptable behavior on social media sites and the consequences for the unacceptable behavior.  Implementation includes education with training examples that clarify any ambiguities.  This blog post from last year illustrates factors to address in a good social governance policy.  Hopefully, someone from the Texans is explaining these concepts to Arian Foster.

So, what do you think? Does your organization have a social governance policy?  Does it train employees on the use of that policy? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: When you DE-NIST, A Lot May Be Missed
 

eDiscovery Daily has referenced several articles in the past by Craig Ball, including this one and this one, and also conducted a thought leader interview with him at LegalTech New York earlier this year.  Craig regularly has great observations about eDiscovery trends that are not talked about in other forums, so I try to “keep tabs” on his articles and provide some of those useful insights to this blog.

Last week on his blog, “Ball in your court”, Craig discussed shortcomings associated with “DE-NISTing”, which is the process of removing files from review that are standard components of the computer’s operating system and off-the-shelf software applications such as Microsoft Office applications.  There’s no need to review these files as they are considered system files and would not generally contain work product of the user.  These files are identified by their known HASH values that uniquely identify their content and matched against a list maintained by the National Software Reference Library, a branch of the National Institute for Standards and Technology (NIST – hence the term “DE-NISTing” to reference removing these files from the review set).

While the NIST list is updated four times per year, Craig was noting that a number of these system files were not being removed during the “DE-NISTing” process on workstations using Windows 7 and the latest release of Microsoft Office.  So, Craig ran a test by performing a “pristine install” of Windows 7 on a “sterile” hard drive, which consisted of 47,690 files.  Of those, only 7,277 were removed during “DE-NISTing”, meaning that 85% of the files were not removed during this process and could be left in the review set if not removed via any other means.

Why were so many files missed?  Evidently, the NIST list does not yet include Windows 7 files, despite the fact that there are more than 350 million workstations that run Windows 7.  It also doesn’t include Microsoft Office 2010 files yet either.  So, the NIST list is not as up to date as it could be.

As a result, several service providers supplement the NIST list with other files, but as Craig notes, it’s important to be able to trace and defend the supplemented list if required and not try to pass it off as the official NIST list (which Craig likens to selling a “Prada knockoff”).

Supplementing the NIST list by removing system files such as EXE and DLL files is a clearly documentable method to reduce the number of files in the review set.  This method doesn’t depend on HASH values and, assuming that these file types are not responsive (which is usually the case) can be an effective method for eliminating files to review.

So, what do you think? Do you depend on the NIST list to remove files from review sets?  Do you use any supplemental methods for further reducing these sets?  Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: Your Chance to Comment on Code of Conduct for eDiscovery
 

The Electronic Discovery Reference Model (EDRM) has made numerous contributions to the eDiscovery industry since it was founded in 2005, with the EDRM diagram (above) having become a universally accepted standard to reflect the eDiscovery life cycle.

The latest contribution is a first draft of the EDRM Model Code of Conduct (MCoC), which focuses on the ethical duties of service providers associated with these five key principles and also provides a corollary for each principle to illustrate ethical duties of their clients:

  • Professionalism: Service Providers should perform their work in a competent, accurate, timely and cost-effective manner, adhering to the highest standards of professionalism and ethical conduct. Clients should be forthright, accurate and timely in their dealings with Service Providers and act at all times in accordance with the highest professional standards of ethical conduct.
  • Engagement: Service Providers should collaborate with Clients to establish and memorialize the terms of their relationship including any reasonably foreseeable parameters as early as possible upon the initiation of any new engagement. Clients should provide sufficiently detailed information about the subject matter, the parties involved in the litigation and any material issues or variables that would assist the Service Provider in accurately defining the engagement.
  • Conflicts of Interest: Service Providers should employ reasonable proactive measures to identify potential conflicts of interest, as defined and discussed below. In the event that an actual or potential conflict of interest is identified, Service Providers should disclose any such conflict and take immediate steps to resolve it in accordance with the Guidelines set forth below.  Clients should furnish Service Providers with sufficient information at the commencement of each engagement to enable each Service Provider to identify potential conflicts of interest. If an actual or potential conflict of interest is identified and disclosed and the Client elects to proceed with the engagement, the Client should work in good faith with the Service Provider and other parties to facilitate a resolution to any such conflict in accordance with the Guidelines set forth below.
  • Sound Process: Service Providers should define, implement and audit documented sound processes that are designed to preserve legal defensibility. Clients should cooperate with Service Providers to ensure that auditable, documented sound processes, appropriate for each engagement, are defined and implemented by all concerned parties to preserve legal defensibility.
  • Security and Confidentiality: Service Providers should establish and implement procedures to secure and maintain confidentiality of all Client ESI, communications and other information. Clients should work with Service Providers to ensure that reasonable measures, appropriate for each engagement, are established and implemented by all concerned parties to secure and maintain confidentiality of all ESI, communications and other information.

Each section then provides detailed guidelines and a discussion section to provide more detailed guidance and recommendations.  The MCoC also provides a detailed introduction to illustrate the need for guidance in ethical decision making, as well as the scope of the guidelines.

Now is your chance to provide feedback!  This initial draft of the MCoC is open to all for public comment through September 30, 2011.  You may post comments at http://www.edrm.net/004 or email comments to mail@edrm.net to provide feedback to the team.

The EDRM MCoC team will review all feedback at the EDRM Mid-Year meeting, in October and will publish the first version of the MCoC will be published in January 2012, prior to the LegalTech NY conference.  These guidelines are a much needed statement on the ethical duties of participants in eDiscovery activities and the efforts of the MCoC team are truly commendable!

So, what do you think? Do you believe that these guidelines are a major step in the right direction?  Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: NY Times Says US Government Has Its Head in the Clouds
 

No, this isn’t a post bashing our government – you can find plenty of articles on the web for that!  😉

As noted a few months ago, Forrester and Gartner have predicted big growth for the cloud computing industry, with Forrester predicting nearly a six-fold growth in nine years.  Many organizations are finding that cloud computing solutions, including Software-as-a-Service (SaaS) solutions for using applications over the web, are saving those organizations significant costs over the costs of having to provide their own software, hardware and infrastructure.  In eDiscovery, these SaaS solutions support every phase of the EDRM life cycle, from Identification to Presentation.

Earlier this week, the New York Times published an article entitled Tight Budget? Look to the ‘Cloud’, written by Vivek Kundra, the Obama administration’s chief information officer from 2009 until earlier this month.  Mr. Kundra noted that there were “vast inefficiencies” in the $80 billion federal IT budget when he took office, and that the Defense Department spent $850 million over ten years on one personnel system alone.

In response, Kundra and his staff instituted a “Cloud First” policy, which advocates the adoption of cloud computing solutions by government agencies.  It even went as far as to mandate the transition of at least three projects for every agency to the cloud by next summer.  As a result, some agencies, such as the General Services Administration, have embraced cloud computing and cut IT costs on some systems by over 50 percent.

Some agencies, like the State Department, have balked at the transition to the cloud, citing security concerns.  However, Kundra notes that “cloud computing is often far more secure than traditional computing, because companies…can attract and retain cyber-security personnel of a higher quality than many governmental agencies”.  Here is an example of the security associated with cloud based solutions, using the facility used by CloudNineDiscovery (formerly Trial Solutions).  As you will see, there are numerous mechanisms to secure sensitive client data.

Kundra notes that a shift to cloud-based services in health care alone to achieve a 1 percent productivity increase over ten years would result in a $300 billion savings.  Noting significant growth in cloud computing in Japan and India, he advocates the creation of a global Cloud First policy to enable nations to determine how the flow of information internationally should be handled, leading to global efficiencies.

So, what do you think? Do you use any cloud based solutions in managing your discovery needs?  Please share any comments you might have or if you'd like to know more about a particular topic.

Full disclosure: I work for CloudNine Discovery (formerly Trial Solutions), which provides SaaS-based eDiscovery review applications FirstPass® (for first pass review) and OnDemand® (for linear review and production).  Our clients’ data is hosted in a secured Tier 4 Data Center in Houston, Texas.

Have a Happy Labor Day!

eDiscovery Trends: A Site Designed to Facilitate Meet and Confer Conferences
 

The past two days, we discussed the basics of the Rule 26(f) “meet and confer” conference and details regarding the topics to discuss during that conference.  Hopefully, you found that review informative.

Now, as noted in a recent Law Technology News article by Sean Doherty, there’s a web application to facilitate the process to prepare for and conduct the Rule 26(f) conference.

MeetandConfer.com, provided by 26F LLC, was created to help attorneys prepare for court mandated “meet and confer” meetings.  The application is designed for law firms and corporate clients to help them determine the content, scope, and extent of ESI associated with the case.  There are four modules to coordinate the process, as follows:

  • Manage Enterprise Information: Enables users to map out organizational information, allowing all parties to understand where potentially relevant ESI is located, policies and practices associated with the ESI, and who is responsible for the ESI.  This module also enables various aspects of the organization to be documented, including backup policies and disaster recovery plans.
  • Matter Scoping: Enables users to track the various matters, and, for each matter, it enables users to track custodians and generate surveys to gather information about the locations of potentially responsive ESI.
  • Meet and Confer: Allows attorneys to define essential ESI needs for both parties while projecting a budget to identify, collect and process the data.  This module also provides a mechanism for computer-aided video conferencing (which can be facilitated by an independent mediator) to actually conduct the conference.
  • System Administration: Supports the creation of clients and users and establish rights for each user group.

Sean’s article mentioned above goes into more detail into each module, reflecting his “hands on” experience in “test driving” the application.  MeetandConfer.com is offering a free one month trial to “qualified” users (i.e., attorneys and judges), with the monthly rate of $149 per user to be billed after the free trial.

So, what do you think? Would an application like this make it easier to fully prepare for “meet and confer” conferences? Would you consider using such an application?  Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Rules: ESI Topics of the "Meet and Confer"
 

Yesterday, we talked about the basics of the Rule 26(f) “meet and confer” conference, Today, let’s go into more detail about the topics that are typically covered during the “meet and confer”, and why.

The "meet and confer" conference focuses on the exchange of information regarding discovery and the creation of a comprehensive plan that will govern the sharing and privilege of ESI. Accordingly, the requirements of this meeting specify discussion of the following topics:

  • Initial Disclosures: This exchange may be specific and detailed or very basic, depending on the needs of the case and the attorney's agendas. Proposed changes to the requirements, timing, or form of these disclosures may be discussed.
  • Topics on which Discovery may be Needed: It may be easy to agree on subjects for which discovery is necessary, or it may require prolonged discussion to reach an accord. In some instances, time and expense can be saved by beginning with a single area and later expanding discovery to include other topics, if necessary. Known as "phased discovery", this can be a very effective choice, as long as it is conducted in a way that does not require duplication of effort in later phases.
  • Format of Production of ESI: Although the actual discovery process may be conducted over weeks or even months after the conference, it's important to agree now on the format of production to prevent parties from accidentally converting files into a type that will later prove to be inconvenient or result in loss of data. This is especially important if one party has a request for a particular format.
  • Privilege, Inadvertent Disclosure, and Protective Orders: Although we all strive to prevent disclosure of privileged information, it's important to discuss in advance the possible implications and a process for dealing with such an eventuality, if it should occur.
  • Potential Deviations from Discovery Rules Requirements: In some cases, opposing attorneys will agree that they can accomplish discovery in fewer depositions than specified by Federal Rules or local rules. If so, this discussion and any related proposals should be part of the "meet and confer" conference so they can be incorporated into the discovery plan.
  • Any Other Orders or Concerns about Discovery: From discovery agreements to questions or requests, almost any topic related to eDiscovery can be part of the "meet and confer" conference.

To get the most out of the "meet and confer," and to save time and expense, most attorneys will prepare an extensive agenda of the topics for discussion in advance of the meeting itself. Although there are many other topics that may be included in the conference, this list covers key requirements of the Rule 26(f) "meet and confer" conference and the discovery plan to be created there.

So, what do you think? Did you learn something that you didn’t already know about the Rule 26(f) "meet and confer" conference?  If so, then we accomplished our goal! Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Rules: What's Really Required for the "Meet and Confer"?
 

Almost any litigation professional who works with eDiscovery is aware of the Rule 26(f) "meet and confer" conference, but many don't fully understand its parameters and how it affects ESI. What exactly is the "meet and confer" and what are some of its implications in regard to eDiscovery?

What is the "Meet and Confer"?

The "meet and confer" conference is now a requirement in Federal cases as of the rules changes of 2006 to the Federal Rules of Civil Procedure. In addition to Rule 26(f) for Federal cases, an increasing number of states now have (or are contemplating) a similar rule.  It provides an opportunity for the parties in a lawsuit to discuss discovery and create a plan for the sharing of information during and before trial.

The goal of the "meet and confer" rules is to provide a basis for an open exchange of information and a productive dialogue about discovery-related topics. Even in the antagonistic world of litigation, it is possible to reach an accord on the details of discovery by conforming to the requirements of these rules and of the discovery process.

What are the Parameters of the "Meet and Confer"?

Rule 26(f) states that attorneys must meet and discuss "any issues about preserving discoverable information" as well as developing a "discovery plan." It also specifies that:

  • Attorneys must already be aware of the location and nature of their own clients' computer systems and discoverable documents, and must be prepared to ask questions about their opponents' ESI, electronic systems, and data preservation actions.
  • In order to be fully prepared for this conference, an attorney needs to know as much as possible about the location, volume, and logistical challenges that surround the collection of ESI, as well as the client's preferences regarding privilege, protective orders, and document review.
  • The more informed the attorneys are on each of these counts, the more capable they will be to address relevant issues, streamline the discovery process, and minimize eDiscovery costs.
  • Attorneys may exchange either in-depth or limited information about the legal holds process.
  • The result of the "meet and confer" conference is to establish a comprehensive discovery plan and lay the groundwork for the discovery aspects of the rest of the proceeding.

Tomorrow, I’ll go into more details about the specific topics to be covered at the Rule 26(f) conference.  Oh, the anticipation!

So, what do you think? Do you have any experience with Rule 26(f) conferences that went awry or cases where having a Rule 26(f) conference would have helped? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Case Law: Defendants' Privilege Waived for "Completely Ineffective" Discovery Procedures

In a case over purported building and zoning code violations, an Illinois District Court has found the defendants responsible for inadvertently producing several privileged documents during discovery and for a failure to correct the problem in a timely manner, and has ordered the privilege to be waived.

In Thorncreek Apartments III, LLC v. Vill. of Park Forest, Nos. 8 C 1225, 08-C-0869, 08-C-4303, 2011 WL 3489828 (N.D. Ill. Aug. 9, 2011), the plaintiff appealed to have six documents that were accidentally submitted by the defendants (as part of discovery nine months earlier) declared to be not subject to privilege. The court ruled in favor of the plaintiff after the following events:

  • More than two months after the production of discovery documents was completed, the plaintiffs attempted to use two of the defendants’ privileged documents at deposition and the defendants became aware of problems in their own discovery production. Defense counsel contacted the plaintiff’s counsel shortly thereafter to notify them that certain privileged documents had been produced inadvertently during discovery.
  • Four months later, defense counsel produced a privilege log that noted 159 documents that should have been protected during discovery, but which had all been inadvertently disclosed. Defense counsel had intended that plaintiffs would have access to all documents in their shared online discovery database, but that documents “marked as ‘privileged’ during its review… would be automatically withheld from the production database.”
  • The defense and plaintiffs were able to come to an agreement about the majority of the documents between themselves, but six documents remained at issue. The plaintiff filed a motion “seeking an order finding that six documents produced… are not protected from disclosure by the attorney-client privilege or, alternately, are not protected from disclosure because the privilege has been waived” by production of the documents during discovery.
  • The court examined the events of the previous nine months, since the beginning of discovery, and determined that the defendants’ steps to prevent disclosure were “completely ineffective.”
  • The defendant was found to have failed to perform a final check of its discovery documents before production, to have inadvertently produced all of its privileged documents, and to have taken an excessive amount of time after such production to discover its error due, in part, to its failure to produce a privilege log at any time before the problem was uncovered.
  • A portion of each of the six documents was found to be subject to attorney-client privilege, but despite the inadvertent nature of production, the court found the defense entirely at fault for the violation of privilege and ruled accordingly that privilege had been waived.

So, what do you think? Does this kind of inadvertent disclosure constitute a waiver of privilege? Was the ruling appropriate or should the defense have been allowed to “clawback” those privileged documents? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Lawyers Versus Machines – Who’s “Winning”?
 

As discussed on this blog, mainstream publications including The New York Times and Forbes have noticed the rise of search technology in discovery, particularly predictive coding. The New York Times article, Armies of Expensive Lawyers, Replaced by Cheaper Software, inspired a lot of consternation in the legal community by proposing that technology was replacing human lawyers. Among the first to reply, Ralph Losey wrote a blog post New York Times Discovers eDiscovery, But Gets the Jobs Report  Wrong, arguing that “the supposed job-chilling impact of these new technologies on the legal profession was off the mark. In fact, the contrary is true.”

However, the Times article does point to a real trend – clients demanding that their outside counsel and litigation support teams use technology to work more efficiently. “Just because the “paper of record” says something doesn’t make it so, of course. But it does mean that every GC and Litigation DGC/AGC in America (and likely Canada) now has this trend on their radar,” litigation project management guru Steven Levy wrote on the blog Lexican.

The obvious problem with the New York Times article is that search and review is an iterative process and demands human intervention to make the machines involved function properly.  However, the missing piece of the discussion today is exactly what the relation between human reviewers and computers should be. There is a nascent movement to investigate this topic, finding the line where machine-led review ends and where human intervention is necessary.

Recent research by some of the leaders of the TREC Legal Track research project has begun to explore the interaction between human and machine review. Maura Grossman, a litigator with Wachtell, Lipton, Rosen & Katz and one of the TREC coordinators, and Gordon Cormack, a computer scientist and fellow TREC-er, wrote the research paper Technology Assisted Review in eDiscovery Can be More Effective and Efficient Than Manual Review. As the title indicates, human review cannot match the accuracy of technology-assisted review. However, the paper points out the need for a roadmap detailing the ideal interaction between human lawyers and machine review in litigation. “A technology-assisted review process involves the interplay of humans and computers to identify the documents in a collection that are responsive to a production request, or to identify those documents that should be withheld on the basis of privilege.”

What may be endangered is the existing review process, as it has traditionally been practiced, not human attorneys. Bennett Borden, an attorney with Williams Mullin, argues the linear review processes cannot produce the same results as the skillful use of technology. He has some interesting asides about the ways lawyers can do things computer searches cannot. For example, human reviewers are able to intuitively “come upon a scent” of relevant documents that machines missed. He says that reviewers not only are able to effectively pursue information by following leads initiated by a computer, but they actually enjoyed the process more than straight-ahead manual review.

Clearly, more research is needed in this area, but if lawyers are going to defend their role in litigation, defining the role of lawyers in discovery is an important question. What do you think?  Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: Thursday’s ILTA Sessions
 

As noted the past three days, the International Legal Technology Association (ILTA) annual educational conference of 2011 is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Today’s the last day to check out the show if you’re in the Nashville area with a number of sessions available and over 280(!) exhibitors providing information on their products and services, including (shameless plug warning!) my company, CloudNine Discovery, which is previewing the version 10.5 release of our linear review application, OnDemand®, prior to release next month.  Last chance!

Perform a “find” on today’s ILTA conference schedule for “discovery” and you’ll get 11 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

9:15 AM – 10:30 AM:

Emerging E-Discovery Technologies: Predictive Coding and Remote Collection

Description: Law firms, corporations and government agencies continue to feel the impact of addressing electronic discovery requirements with growing data sizes and shrinking timelines. Technology providers have developed some practical solutions that will increase efficiency, minimize cost and address quality to minimize risk. This session will discuss two of those emerging technologies: predictive coding and remote collection. Please join us in an open discussion with industry leaders who will provide practical thoughts to consider when utilizing these solutions.

Speakers are: Dominic Jaar – KPMG LLP; Greg Buckles – Reason-eD, LLC; L. Keven Hayworth – Morgan, Lewis & Bockius, L.L.P.; Howard Sklar – Recommind; Patrick Zeller – Guidance Software

11:00 AM – 12:00 PM:

Legal vs. IT: Aligning Litigation and Practice Support

Description: Many are talking about a perceived conflict between legal and IT –– whether they can get along and speak the same language. An experienced panel will help you see litigation and practice support as bilingual facilitators, as they discuss characteristics of highly-functional multidisciplinary teams and relationship-building, bringing together the viewpoints of technology professionals and practice group members to achieve shared success.

Speakers are: Deborah Ratterman-Warnecke – Sears Holdings Corporation; John L. Kapp – Shearman & Sterling, LLP; Barb Sloan – Hunsucker Goodstein & Nelson PC; Carolyn Anger – Stikeman Elliott LLP

2:00 PM – 3:00 PM:

Data Archiving: Where Did All the Storage Space Go?

Description: Join us for an interactive discussion about how IT professionals, litigation support departments and attorneys work together to identify litigation data that can be archived. We’ll address such questions as: How do you categorize data? What archiving solutions/processes are being used? What are the costs? Learn how firms are archiving and saving on storage while keeping data available to attorneys.

Speakers are: Scott M. Cohen – Winston & Strawn LLP; John Elbasan – Stroock & Stroock & Lavan LLP; Vincent Collado – Computer Design & Integration

3:30 PM – 4:30 PM:

LexisNexis: Gaining a Competitive Edge and Economic Advantage in E-Discovery

Description: The nature of litigation is that it is often sporadic, unpredictable and can fall outside the scope of standard litigation-support processes. Learn how to increase your ability to say "yes" to challenging deadlines, and decrease delays due to managing difficult data by utilizing a hybrid approach to what is kept in-house and what is outsourced. This panel discussion will provide new strategies and best practices for leveraging internal and external teams, as well as LexisNexis e-discovery and litigation-management technology to add greater flexibility and cost efficiency to your cases and a competitive edge in the discovery process.

Speakers are: George William Farrall – Integreon; Jennifer Stevenson – LexisNexis; Miklos Wenczl – Skadden, Arps, Slate, Meagher & Flom, LLP

For a complete listing of all sessions at the conference, click here.

eDiscoveryDaily will also be “tweeting” periodically throughout ILTA, so feel free to check out our updates at twitter.com/Cloud9Discovery.

So, what do you think?  Did you attend ILTA this year?  What were the highlights for you?  Please share any comments you might have or if you’d like to know more about a particular topic.