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eDiscoveryDaily

eDiscovery Trends: Wednesday’s ILTA Sessions
 

As noted yesterday and Monday, 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.  There’s still time 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.

Perform a “find” on today’s ILTA conference schedule for “discovery” and you’ll get 9 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

9:15 AM – 10:30 AM:

Corporate Legal E-Discovery: Six Topics in 60 Minutes

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

Speakers are: Joanne Lane – MetLife; Robert Stangler – Best Buy; Alexander George Arato – CA, Inc.

1:30 PM – 2:30 PM:

Best Practices for Social Media in the Corporation

Description: What are the dos and don'ts for a corporation seeking to utilize social media? Learn more about which vehicles are permitted, policies and procedures, benefits to the company and e-discovery aspects. See business-use examples as well.

Speakers are: Deborah Ratterman-Warnecke – Sears Holdings Corporation; Joel Resnick – Evolver; Teresa Burnett – Deere & Company

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?  Are you attending ILTA this year?  Have any sessions stood out for you as particularly enlightening?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Tuesday’s ILTA Sessions
 

As noted yesterday, 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.  There’s still time 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.

Perform a “find” on today’s ILTA conference schedule for “discovery” and you’ll get 6 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

9:15 AM – 10:30 AM & 11:30 AM – 12:30 PM (2 part session):

Hands-On: Forensics 101 for Legal Professionals

Description: Forensic collection is often associated with full-disk imaging. However, targeted and remote collection has been commonplace for several years and has become best practice. Taught by a former attorney and computer forensics expert, this session will dispel such misconceptions around the concept of forensic search and collection and walk attendees through a series of hands-on exercises. Legal professionals will learn requirements and best practices to ensure their collections are forensically sound, and they will learn the pros and cons of different collection methodologies, enabling them to effectively evaluate their options in the real world. Attendees will use a forensics-based e-discovery platform to perform hands-on exercises covering acquisition, validation, chain of custody, data analysis and reporting.

Speaker is: David Speringo – AccessData (Summation)

1:30 PM – 2:30 PM:

Software for Your Litigation Support Tool Belt

Description: There are many options for electronic Bates labeling, redaction, PST management, metadata retrieval, load file creation, etc. This session will highlight the various tools and utilities available to litigation support professionals regardless of firm size. We will focus on some industry standard must-haves and little-known jewels.

Speakers are: Kyle Neitzel – Lindquist & Vennum PLLP; Danny Chan – Bereskin & Parr 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?  Are you planning to attend ILTA this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Welcome to ILTA 2011!
 

The International Legal Technology Association (ILTA) annual educational conference of 2011 kicked off yesterday with several networking events, and begins in earnest today with the first day of sessions.  eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next four days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.

If you’re in the Nashville area, come check out the show – there are 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.

Perform a “find” on today’s ILTA conference schedule for “discovery” and you’ll get 7 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

11:00 AM – 12:00 PM:

Litigation and Practice Support Professional Development

Description: In the world of litigation and practice support, sometimes there are more job opportunities than there are people to fill them. Once you’ve gone through the long process of hiring the perfect candidate(s), how do you develop and retain your litigation and practice support teams? In this session, we will discuss various views, tips and tricks regarding professional development, retention, training, education, certification, rewards and recognition.

Speakers are: Cheryl J. Proctor – Baker Donelson Bearman Caldwell & Berkowitz; Julie K. Brown – Vorys, Sater, Seymour and Pease LLP; Ruth Hauswirth – Cooley LLP; Randal Girouard – Haynes and Boone, LLP

1:00 PM – 2:00 PM:

Offshoring and Outsourcing: What It Means for Your Firm and Your Job

Description: Are you ready for the growing impact on the legal market of outsourcing and offshoring? The forces that are driving legal work towards LPOs seem unstoppable and are already changing the way clients think about legal work and the way law firms carry out that work. This affects lawyers and technologists. How should you and your firm respond and adapt to these changes? As the legal marketplace breaks down along the "cost/value" continuum, where will you and your firm end up on that spectrum?

Speakers are: Toby Brown – Vinson & Elkins, L.L.P.; Jordan Furlong – Edge International Consulting; Kevin Colangelo – Pangea3, A Thomson Reuters Business

Controlling Litigation Support Costs

Description: Peer group session leader Scott Cohen will cover common and not-so-common methods of achieving cost control in litigation support effort, including proportionality targeted collection/preservation. We'll also discuss off-shoring and searching/filtering/analytics.

Speakers are: Scott M. Cohen – Winston & Strawn LLP; Kevin Behan – Winston & Strawn LLP; Dan Regard – iDiscovery Solutions, Inc.; Jeff Fehrman – Integreon

2:30 PM – 3:30 PM:

Extending Contentious Matter Extranets to Transactions

Description: Come see how you can use your existing information management skills and procedures to offer collaborative services to your transaction-driven practice teams; extend your extranet infrastructure for use across your entire legal practice and matters; apply security, confidentiality and defensibility expertise to new opportunities; and assess for key functionality needed for providing matter extranets to transactions.

Speakers are: Michelle Mahoney – Mallesons Stephen Jaques; Thomas Barce – Fulbright & Jaworski L.L.P.; Beth Patterson – Allens Arthur Robinson; John Shaw – IntraLinks

4:00 PM – 5:00 PM:

Applying Litigation Support Tools to the Transactional Practice

Description: Law firms and corporate legal departments are looking for ways to leverage existing technology investments in other practice areas. This session will discuss the application of information management systems, technologies and tools –– traditionally used in litigation support –– to the transactional practices.

Speakers are: Thomas Barce – Fulbright & Jaworski L.L.P.; Duane Lites – Jackson Walker L.L.P.; Joel Lessem – Firmex Inc.; Danny Thankachan – Thompson & Knight, L.L.P.

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?  Are you planning to attend ILTA this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: 6 Project Management Practices to Apply to eDiscovery Cases
 

We’ve discussed project management as it relates to eDiscovery many times on this blog and even discussed whether there is any difference in managing legal projects vs. other types of projects.  This article published on Law Technology News yesterday, written by David Kearney of Cohen & Grigsby provides a good summary of six best practices to apply not only to eDiscovery projects, but to any project.

Everybody loves lists, right?  At least I do.  Here are the six best practices the author listed, with some of my own observations:

  1. Identify stakeholders and manage expectations. Every project has one or more people who have a stake in the end result (i.e., stakeholders).  That could be counsel, end clients, third parties or all of the above. It’s important to communicate expectations and time frames clearly (and, personally, I try to follow up with written documentation of all communicated expectations to minimize the chance of misunderstandings).  It’s also important to have a champion of the project to keep everyone on the same page.
  2. Communicate and report. Did I get ahead of myself and already mention communications?  The author advocates a communication plan and reporting methods, which is vital for keeping people on the same page.  It should include regular, periodic reporting (e.g., a weekly status report) and a plan for communicating ad-hoc updates (including key decisions made).  The means for communicating decisions may depend on the importance of the decision – for key decisions, I’ve been known to meet with or call the key players and follow up with an email to make sure that everyone is informed.
  3. Define the scope. The author discussed defining the scope to minimize the impact to costs, schedules, quality and resources.  This is certainly true and an important up-front step.  But, guess what?  Scope frequently changes.  Collections are larger than you thought, you have more custodians than you thought, additional services are requested, etc.  So, it’s important to gather as much information up front as possible to define the scope as accurately as possible, but also be prepared to adjust scope as things change and communicate (there’s that word again!) any changes in scope to the project team.
  4. Create the plan. The author talks about defining “what needs to happen, when it needs to happen, how much it's going to cost, the risks, how risks will be managed, how long project activities will take, and who will perform the work”. I especially like addressing how risks will be managed.  On projects I’ve worked on before, we’ve actually done a “pre-mortem” to brainstorm what can go wrong (i.e., risks) and identify a plan for mitigating each of those risks up front.  This exercise can avoid a lot of headaches during the project.
  5. Manage costs. Two words: budget and track.  You should prepare a budget at the beginning of a project and track costs against that budget throughout the project.  And, if scope changes, the budget should be updated to reflect those changes.
  6. Document lessons learned. The author discusses the importance of maintaining historical data on projects to track decisions, resources, etc., and then conducting a “post-mortem” (my words, not his) to learn from your mistakes and also your successes(!).  You’ll hopefully be managing more projects in the future, so you want to make sure you can learn as much as you can from each previous project you’ve managed.

So, what do you think? Have you managed any eDiscovery projects?  Did you learn any valuable lessons from those experiences? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Case Law: Sanctions for Spoliation, Even When Much of the Data Was Restored

A Virginia court recently ordered sanctions against the defendant in a case of deliberate spoliation of electronic discovery documents.

In E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3:09cv58, 2011 WL 2966862 (E.D. Va. July 21, 2011), the defendant was found to have committed spoliation “in bad faith” in a manner that constituted a “violation of duty… to the Court and the judicial process,” as follows:

  • The defendant, Kolon Industries Inc., was charged with misappropriation of trade secrets, conspiracy, information theft, and other allegations.
  • Within two days of receiving the plaintiff’s February 4, 2009 complaint, the defendant issued a litigation hold to upper-level employees. Several days after that, on February 10, a second hold notice was sent to all employees in English – even though most of Kolon’s staff members did not speak English.
  • Subsequently, many of the defendant’s key employees were found to have deleted files and emails that may have been relevant for discovery. After extensive investigation, the plaintiff’s expert discovered that the defendant had demonstrably deleted at least “17,811 files and email items” that should have been preserved for discovery.
  • The court determined that employees had deleted ESI “in bad faith,” conducting intentional spoliation and alteration of relevant evidence in direct contravention of the demands of discovery.
  • Even though many (but not all) of the documents were recovered (most from backup tape), the court rejected the defendant’s argument that “there can be no spoliation finding because many documents were recovered” and eventually produced, stating: “The fact that technology permits the undoing of spoliation does not change at all the fact that spoliation has occurred.”
  • Accordingly, the court leveled sanctions against the defendant, ordering it to pay the plaintiff’s legal fees, costs and expenses on this motion, and ordered an adverse inference instruction to the jury.  However, the court found that default judgment requested by the plaintiff was not appropriate, citing defendant’s attempts to place two litigation holds and the “good fortune that many deleted items were recoverable because of the preservation of Kolon’s backup tapes.”

So, what do you think? Were the sanctions appropriate, or should recovery of much of the deleted data have spared the defendant in this case? Have you ever been involved in a case where deleted electronic documents were recovered and sanctions avoided? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: North Carolina Adopts eDiscovery Rules
 

Earlier this year, Wisconsin and Connecticut adopted new eDiscovery rules.  On October 1, changes to the North Carolina Rules of Civil Procedure will go into effect to provide guidelines for handling eDiscovery in North Carolina state courts.  The rule changes, for the most part, follow the same guidelines as the 2006 Amendments to the Federal Rules of Civil Procedure.  Here is a summary of the changes:

  • Discovery Plans: Parties to a case now have the right to require the development of a discovery plan, to manage all discovery in the case (not just eDiscovery).  The parties are required to meet to discuss the possibility of settlement and the preparation of a discovery plan to address discovery of electronically stored information (“ESI”), production of ESI, discovery limitations or phasing, and the deadline for completion of all discovery.
  • Required Production of Metadata: The definition of ESI now expressly includes the metadata for date sent, date received, author, and recipients. The definition of ESI does not include other metadata unless the parties agree or the court so orders.  This is a significant departure from the Federal Rules.
  • Privilege Logs: Privilege logs describing privileged material withheld from discovery are now required.
  • Inadvertent Disclosure: The new rules protect inadvertent disclosure of privileged information during discovery.
  • Sanctions: The amendments adopt a safe harbor provision which mirrors the federal rule, protecting a party from sanctions for losing ESI “as a result of routine, good faith operation of an electronic information system.”
  • Subpoenas:   Rule 45 of the NC Rules of Civil Procedure has been revised to provide that parties producing documents need not produce the same ESI in more than one format, or provide ESI that is not reasonably accessible because of undue burden or costs.

So, what do you think? Are you aware of the “state” of eDiscovery rules in your state?  Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Best Practices: When Collecting, Image is Not Always Everything
 

There was a commercial in the early 1990s for Canon cameras in which tennis player Andre Agassi uttered the quote that would haunt him for most of his early career – “Image is everything.”  The quote haunted him because, as a young player, he was considered to be more style than substance and unable to “win the big one” – a reputation that he ultimately overcame.

When it comes to eDiscovery preservation and collection, there are times when “Image is everything”, as in a forensic “image” of the media is necessary to preserve all potentially responsive ESI.  This is especially true when one party is suspected of deleting ESI to avoid producing it in Discovery.  For example, a forensic copy of a hard drive will include every byte of data on that drive, including data in unallocated space and file slack – these are locations on the drive that may contain data that was once actively used, but is now available to be overwritten after that data was “deleted”.

However, forensic imaging of media is usually not necessary for Discovery purposes. When it is necessary, the parties (usually in coordination with the court) must establish a protocol for how that inspection will take place. This protocol must be conducted in a manner that is verifiable and is usually conducted by an experienced professional, trained to collect data in a forensically sound manner and qualified to testify in court to that process if required.

For most cases, collection involves straightforward copying of the active targeted ESI as it exists on the producing party’s system.  However, to maintain the integrity of the metadata, not just any means of copying will do.  Copying files with “drag and drop” using Windows Explorer may get the files from one place to another, but key metadata (such as file creation date, which reflects the date of the copy, NOT the original) may be changed.

Fortunately when doing a targeted collection, there are several applications that, if used correctly, will copy files quickly and effectively while preserving the metadata.  Here are a few:

  • SafeCopy 2: Easy to use file copy utility created by Pinpoint Labs specifically for eDiscovery.
  • Robocopy: Microsoft utility for copying files from one location to another.
  • Upcopy: An “intelligent” file copy utility specifically suited for eDiscovery.

Also, FTK® Imager is an imaging and forensic image preview tool that is a free download and part of AccessData’s Forensic Toolkit®.  FTK® Imager also has the option to forensically acquire specific files using the custom content image option.

With any of these utilities, you can support the targeted collection needs for most cases.

So, what do you think? Have you used any of these utilities for eDiscovery collection?  Please share any comments you might have or if you'd like to know more about a particular topic.

Announcement: Trial Solutions is now CloudNine Discovery!
 

In addition to today’s regular blog post about eDiscovery case law, we have an important announcement: Trial Solutions is pleased to announce that we have officially changed our name to CloudNine Discovery!

After much discussion, we determined that a more accurate name was needed to represent our expanded products and services which have developed over the years, particularly in the areas of online data and document review hosting

We selected our new name, "CloudNine Discovery" with two goals in mind: 1) to continue providing customer service that puts our clients "on cloud nine" and 2) to lead the world in combining self-service with managed hosting and "cloud" storage.  Cloud storage is a model of networked online storage where data is stored on multiple virtual servers, generally hosted by third parties, rather than being hosted on local servers.

Our mission will continue to be to simplify the discovery process through innovative technology, transforming data hosting into a world-class experience that is easy and affordable. CloudNine Discovery will offer the same products and services offered by Trial Solutions, and our core leadership will remain intact.

As for the eDiscovery Daily blog?  While the name of the sponsor has changed, the blog will continue to provide daily eDiscovery news and analysis each and every business day, just as we always have.  We haven’t missed a day yet (knock on wood!) and will do our best to continue to provide useful information from an eDiscovery perspective.

As always, please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Case Law: "Untimely" Motion for Sanctions for Spoliation Denied

A recent ruling by the US District Court of Tennessee has denied a motion for sanctions for spoliation on the grounds that the motion was “untimely.”

In Am. Nat’l Prop. & Cas. Co. v. Campbell Ins., Inc., No. 3:08-cv-00604, 2011 WL 3021399 (M.D. Tenn. July 22, 2011), the plaintiff argued that the defendants’ admitted failure to preserve evidence “warrants a harsh penalty,” but the court found in favor of the defense that the motion was untimely.

  • The defendants, Tommy Campbell, Marshall C. Campbell and Campbell Insurance, Inc. were previously found to have failed to preserve email evidence from the period between April and July 2009. The plaintiff claimed that these emails contained “damning evidence” and that this discovery spoliation was deliberate.
  • This spoliation was discovered in May 2010, but the plaintiff did not file a motion for sanctions until July 16, 2011 – more than fourteen months after the spoliation was discovered and almost five months after discovery closed in February of 2011.
  • With the trial less than seven weeks way, the court considered this motion for sanctions for spoliation in the light of the summary of the law on spoliation that was provided in Goodman v. Praxair Services, Inc., 632 F.Supp.2d 494 (D.Md.2009). Among other points, the district court in Goodman v. Praxair encouraged courts to be aware of the time between the close of discovery and a motion related to spoliation, as well as cautioning against spoliation motions “made on the eve of trial.”
  • The court rejected the plaintiff’s excuse for the timing on the basis that “because the relevant emails were deleted and cannot possibly be produced, the Motion for Sanctions ‘is not a discovery motion.'”
  • Because of the “disruptive” timing of the motion, and the inability of the plaintiff to effectively explain why they delayed so long in filing a motion after this spoliation was encountered in discovery, the court ultimately ruled against the motion for sanctions, calling it “untimely”.

So, what do you think? Does spoliation of evidence “expire” or should timeliness matter at all in a case like this one? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Same Old Story, Lawyers Struggling to “Get” eDiscovery
 

A couple of days ago, Law Technology News (LTN) published an article entitled Lawyers Struggle to Get a Grasp on E-Discovery, by Gina Passarella, via The Legal Intelligencer.  Noting that “[a]ttorneys have said e-discovery can eat up between 50 to 80 percent of a litigation budget”, the article had several good observations and quotes from various eDiscovery thought leaders, including:

  • Cozen O'Connor member David J. Walton, co-chairman of the firm's eDiscovery task force, who observed that “I'm afraid not to know [eDiscovery] because it dominates every part of a case”;
  • LDiscovery General Counsel Leonard Deutchman, who noted that the younger generation comfortable with the technology will soon be the judges and attorneys handling these matters, asked the question “what happens to those people that never change?”.  His answer: “They die.”
  • K&L Gates eDiscovery analysis and technology group Co-Chairman Thomas J. Smith noted that “A lot of the costs in e-discovery are driven by paranoia because counsel or the party themselves don't really know the rules and don't know what the case law says”.
  • Morgan Lewis & Bockius partner Stephanie A. "Tess" Blair heads up the firm's e-data practice and hopes that in five years eDiscovery will become more routine, noting “I think we're at the end of the beginning”.
  • Dechert's e-discovery practice guru Ben Barnett said, “Technology created the problem, so technology needs to solve it.”  But, David Cohen, the head of Reed Smith's eDiscovery practice, said that the increasing amount of data sources are keeping ahead of that process, saying “You have to make improvements in how you handle it just to tread water in terms of cost”.

There are several other good quotes and observations in the article, linked above.

On the heels of Jason Krause’s two part series on this blog regarding the various eDiscovery standards organizations, and the controversy regarding eDiscovery certification programs (referenced by this post regarding the certification program at The Organization of Legal Professionals), where do attorneys turn for information?  How do attorneys meet the competency requirements that the American Bar Association (ABA) Model Rules set forth, when an understanding of eDiscovery has become an increasing part of those requirements?

One common denominator of the firms quoted above is that they all have one or more individuals focused on managing the eDiscovery aspect of the cases in which they’re involved.  Having an eDiscovery specialist (or a team) can be a key component of effectively managing the discovery process.  If you’re a smaller firm and cannot devote a resource to managing eDiscovery, then find a competent provider that can assist when needed.

In addition to identifying an “expert” within or outside the firm, there are so many resources available for self-education that any attorney can investigate to boost their own eDiscovery “savvy”.  Join one of the standards organizations referenced in the two part series above.  Or, participate in a certification program.

One method for self-education that attorneys already know is case law research – while there is always variety in how some of the issues are handled by different courts, case decisions related to eDiscovery can certainly identify risks and issues that may need to be addressed or mitigated.  Subscribing to one or more resources that publish eDiscovery case law is a great way to keep abreast of developments.  And, I would be remiss if I didn’t note that eDiscovery Daily is one of those resources – in the nearly 11 month history of this blog, we have published 43 case law posts to date.  More to come, I’m sure… 😉

So, what do you think? Do you have a game plan for “getting” eDiscovery?  Please share any comments you might have or if you'd like to know more about a particular topic.