eDiscoveryDaily
Court Sides with Plaintiff’s Proposal, Orders Random Sample of the Null Set: eDiscovery Case Law
In City of Rockford v. Mallinckrodt ARD Inc., No. 17 CV 50107, No. 18 CV 379 (N.D. Ill. Aug. 7, 2018), Illinois Magistrate Judge Iain D. Johnston adopted the parties’ proposed order establishing the production protocol for ESI with the inclusion of the plaintiffs’ proposal that a random sample of the null set will occur after the production and that any responsive documents found as a result of that process will be produced.
Case Background
In this case involving alleged breach of contract, racketeering and antitrust violations related to the defendant’s prescription medication, the parties agreed on several aspects of discovery, including a plan to use keyword searching and a protocol for agreeing on search terms, date restrictions, and custodian restrictions. The protocol also addressed the steps to be taken if a party were to dispute a specific term as being overly broad, with the producing party to review a statistically valid sample of documents to determine if the term is returning mostly responsive documents, followed by negotiation as to any modifications to the term, with a plan to submit to the Court if they could not agree.
However, the parties could not agree on what to do after the production. The defendants’ proposed that if “the requesting party reasonably believes that certain categories of requested documents exist that were not included in the production, the parties will meet and confer to discuss whether additional terms are necessary.” On the other hand, the plaintiffs proposed a random sample of the null set (the documents not returned via search), with the following specific provision:
“The producing party agrees to quality check the data that does not hit on any terms (the Null Set) by selecting a statistically random sample of documents from the Null Set. The size of the statistically random sample shall be calculated using a confidence level of 95% and a margin of error of 2%. If responsive documents are found during the Null Set review, the producing party agrees to produce the responsive documents separate and apart from the regular production. The parties will then meet and confer to determine if any additional terms, or modifications to existing terms, are needed to ensure substantive, responsive documents are not missed.”
Judge’s Ruling
While noting that “the parties have agreed to use key word searching”, Judge Johnston evaluated the “pros and cons” of keyword searching as compared to technology assisted review (TAR), but ultimately decided that he “will not micromanage the litigation and force TAR onto the parties.”
As for the proposal in dispute, Judge Johnston ruled that sampling the null set is reasonable under Rule 26(g), stating that “Defendants provide no reason establishing that a random sampling of the null set cannot be done when using key word searching. Indeed, sampling the null set when using key word searching provides for validation to defend the search and production process, and was commonly used before the movement towards TAR.”
Judge Johnston also ruled that sampling the null set is proportionate under Rule 26(b)(1), stating: “The Court’s experience and understanding is that a random sample of the null set will not be unreasonably expensive or burdensome. Moreover and critically, Defendants have failed to provide any evidence to support their contention…Indeed, the Court’s experience and understanding is that the random sample will not be voluminous in the context of a case of this magnitude.” Judge Johnston also cited the issues at stake, the potential amount in controversy, asymmetrical discovery (with the defendants having access to the vast majority of the relevant information), the “substantial resources” of the defendant and that “the burden and expense of a random sampling of the null set does not outweigh its likely benefit of ensuring proper and reasonable – not perfect – document disclosure” all as reasons as to why sampling was proportionate in this case.
As a result, Judge Johnston ordered a random sample of the null set, determining that “Plaintiffs’ proposed 95% confidence level with +/-margin of 2% is acceptable.”
Editor’s Note: It’s worth noting that if you plug the proposed confidence level and margin of error into the Raosoft sample size calculator, you get no more than 2,401 documents that need to be sampled — even if the size of the null set is as large as 10 million documents. Conducting a random sample is one of the most proportionate activities associated with eDiscovery review.
So, what do you think? Should random sampling of the null set always be required in cases like this to help confirm a comprehensive search result? Please let us know if any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant.
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
New Phishing Scam Goes After Office 365 Users: Cybersecurity Trends
According to a recent blog post, there’s a new phishing campaign where the scammers are taking advantage of a small, but serious oversight in Microsoft’s Office 365 suite of online services to serve phishing emails that are visually indistinguishable from work-related emails and appear completely safe. This new attack has impacted an estimated 10% of Office 365 users worldwide.
As reported in Bitdefender (The Underrated Importance of Training Your Staff to Spot Devious Phishing Attacks, written by Filip Truta, and covered by Sharon Nelson’s excellent Ride the Lighning blog), PhishPoint, as the campaign is dubbed, has a variant that most other phishing scams don’t: it goes beyond email and uses SharePoint to harvest end-users’ credentials.
Here is how the PhishPoint scam works:
- Victim receives email containing a link to a SharePoint document
- Email body is identical to a standard SharePoint invitation to collaborate
- Victim clicks the hyperlink in the email thinking it is a legitimate work document
- Victim’s browser automatically opens a SharePoint file
- SharePoint file impersonates a standard access request to a OneDrive file
- Victim clicks on “Access Document” hyperlink that leads to a spoofed Office 365 login screen
- Victim attempts to login, at which point their credentials are harvested by the PhishPoint authors
Exploited properly, the scam can easily lead to a catastrophic data breach. While Microsoft’s link-scanning security layer does sniff out malicious links in the body of an email, it does not scan the links inside a linked SharePoint document. Even if it did, it still couldn’t blacklist a malicious URL inside the document without blacklisting links to all SharePoint files. Researchers feel this is a dangerous oversight.
Stolen corporate domain usernames and credentials are in high demand on the dark web and underground specialized forums. As more and more organizations are moving to cloud-based solutions, phishers themselves are adjusting their techniques to steal credentials via existing attack tools, such as phishing kits.
These phishing kits are usually stored on legitimate-but-compromised websites and are linked to in generic communication. Fake invitations to files hosted on SharePoint Online, outstanding payments for Office 365 subscriptions, or notices of upcoming account termination are the most common lures used to persuade victims into giving away their credentials. And since the messages aren’t branded with visual identities of specific companies, these campaigns likely target a wide pool of organizations, not just a few select companies. Some of the phishing kits even have their own defense mechanisms that enable them to fly under the radar and avoid blacklisting.
The post also provides several recommendations to avoid getting caught by phishing scammers, including hovering with your mouse cursor over the hyperlink to make sure the link is actually the site it claims to be, being wary of any unsolicited or uncharacteristic requests to input your credentials and using two-factor authentication on every site that offers it, among others.
These phishing scammers can be very clever and can even mimic people from within your own organization to make you think you’re clicking on a link provided by a co-worker. One thing we have done at CloudNine to help identify those is to mark any emails coming from an external source with an “*** External Email ***” marker inserted into the received email to help recipients identify those phishing instances. The battle against malware scammers continues.
So, what do you think? Do you have any mechanisms your organization uses to spot phishing attempts that you would like to share? Please share any comments you might have or if you’d like to know more about a particular topic.
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
Court Denies Plaintiff’s Request for Native Re-Production by Defendant: eDiscovery Case Law
In Baker v. Santa Clara Univ., No. 17-cv-02213-EJD (VKD) (N.D. Cal. Jul. 31, 2018), California Magistrate Judge Virginia K. Demarchi denied, without prejudice, the plaintiff’s request for an order compelling production of electronically stored documents in native format, finding that the plaintiff “does not have a compelling reason for demanding that SCU (Santa Clara University) re-produce its entire responsive document production in native format simply because she might find something missing.”
Case Background
In this case involving claims of ongoing harassment, discrimination and retaliation by the plaintiff against her employer, the plaintiff served 54 requests for the production of documents in May 2018, with the 54th request to cover the format of production for all documents responsive to the other 53 requests, stating:
“With respect to each request, produce all documents in native format, including electronically stored information, metadata, and all metadata fields. Do not do anything that strips, removes, changes, limits, or otherwise alters the actual electronically stored information and metadata fields of any document that exists in an electronic format. Ensure that all such evidence remains intact, undisturbed, and is produced with each and every electronic document.”
The defendant produced over 2,500 pages of documents in response to the plaintiff’s document requests, but objected to Request No. 54 and produced all documents in .pdf format without metadata. The defendant did not specifically contend that the documents it produced are maintained in .pdf format in the usual course of its business. As a result, the plaintiff asked for an order requiring the defendant to produce all responsive, electronically stored information in native format. In requesting the re-production in native format, the plaintiff stated that native format “is very useful in identifying missing `parent emails'[,] `child emails'[,] hidden attachments[,] altered electronic records[,] and other electronic activity having the usefulness of establishing the existence of electronic records that have not been produced.” In response, the defendant stated, without contradiction, that it attempted to engage the plaintiff’s counsel in a discussion of the search and production of electronically stored information more than a year ago in connection with the parties’ obligations under Rule 26(f), and that the plaintiff’s counsel did not meaningfully engage in the required discussion.
Judge’s Ruling
Judge Demarchi observed that “Neither party has complied with the rules and guidelines that govern the production of electronically stored information”. Noting that “Rule 34(b)(2) requires a party responding to document requests to object to a requested form of production for electronically stored information, and to state the form or forms of production it intends to use,” Judge Demarchi determined that “while SCU objected to the form of production demanded by Ms. Baker in response to Request No. 54, it did not specify the form of production it intended to use, and it apparently did not organize and label its production to correspond to the categories in Ms. Baker’s requests.”
As for the plaintiff, Judge Demarchi determined that the plaintiff “appears to have utterly failed to comply with the requirements of Rule 26(f) and this Court’s Guidelines for the Discovery of Electronically Stored Information by refusing to meaningfully engage in any discussions early in the case about the search and production of documents stored in electronic format.”
Stating that “The parties now find themselves in a dispute two weeks before the close of fact discovery that might have been avoided had they both complied with their respective and mutual discovery obligations”, Judge Demarchi, while acknowledging that the defendant “has not made any showing that re-producing some or all of its production in native format would be unduly burdensome” stated:
“Ms. Baker’s primary argument for demanding production of documents in native format is that such production might reveal that SCU has not produced all of the documents it should have. SCU’s document production is not particularly voluminous, and Ms. Baker has had nearly a month to review it. Absent a specific, articulable basis for believing SCU has not complied with its discovery obligations, Ms. Baker does not have a compelling reason for demanding that SCU re-produce its entire responsive document production in native format simply because she might find something missing.”
As a result, Judge Demarchi denied the plaintiff’s request without prejudice, stating “If Ms. Baker identifies particular documents or specific categories of documents for which she requires metadata or production in native format, she should make a request for re-production of those documents to SCU, together with an explanation of why re-production is necessary, as SCU has invited her to do already. If the parties cannot agree on whether or to what extent re-production may be necessary or justified, they may bring their dispute before the Court pursuant to the Court’s Standing Order for Civil Cases.”
So, what do you think? Should the plaintiff’s failure to comply with Rule 26(f) have let the defendant off the hook for failing to comply with Rule 34(b)(2)? Please let us know if any comments you might have or if you’d like to know more about a particular topic.
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
Thursday’s ILTACON 2018 Sessions: eDiscovery Trends
As noted yesterday, Tuesday and Monday, the International Legal Technology Association (ILTA) annual educational conference of 2017 (otherwise known as ILTACON) is happening this week and eDiscovery Daily has once again covered the show and, this year, CloudNine has been exhibiting at the show and participating in a major way. This is the last day to check out the show at the Gaylord National Resort in National Harbor, MD if you’re in the Washington DC area with a number of sessions available and as many as 209(!) exhibitors providing information on their products and services.
Here are a couple of sessions to check out today (time displayed is ET):
9:00 AM – 10:00 AM:
Design Thinking in Litigation Support: A practical workshop on how design thinking can be leveraged in litigation support to develop a solution that works for the legal teams. Hear real world examples of how design thinking improved customer service and deliveries, and improved processes and policies.
Takeaways:
- Learn about the basic fundamental steps to design thinking
- Hear about examples of how law firms have used design thinking to improve their legal services to clients.
Speaker: David Bryant Isbell, Managing Director, Global eDiscovery and Data Advisory Baker & McKenzie.
11:15 AM – 12:15 PM:
Transforming Records Managers: Assessing and Adapting to the Changing Skill Needs for Information Governance: Records management is a critical component of Information Governance (IG) but it is only part of the solution. IG is a multi-discipline, organization-wide strategy requiring collaboration and records managers are best positioned to lead the way. Learn how to assess and adapt your records team to the new, more broad skills needed to address information governance.
Takeaways:
- Understand the key skills for Information Governance Program Managers vs. traditional Records Managers and how to assess current skills to identify gaps in skills needed to transition
- Matrix of essential skills and relevant certifications
- An action plan to develop the skills of your team
Speakers: James A. Merrifield, Records & Information Governance Manager Robinson & Cole LLP; Leigh Isaacs, Director, Records & Information Governance White & Case LLP; Terry Coan, Managing Director HBR Consulting LLC.
So, what do you think? Did you attend ILTACON this year? If so, what did you think? Please share any comments you might have or if you’d like to know more about a particular topic.
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
Wednesday’s ILTACON 2018 Sessions: eDiscovery Trends
As noted yesterday and Monday, the International Legal Technology Association (ILTA) annual educational conference of 2017 (otherwise known as ILTACON) is happening this week and eDiscovery Daily will once again be covering the show and, this year, CloudNine will exhibiting at the show and participating in a major way. There’s still time to check out the show at the Gaylord National Resort in National Harbor, MD if you’re in the Washington DC area with a number of sessions available and as many as 209(!) exhibitors providing information on their products and services.
In addition to exhibiting at the show in booth 936, CloudNine also hosted a happy hour yesterday at the National Harbor’s Public House. We’re also going to be the sunglass sponsor for the ACEDS Monumental Sunset Cruise today from 7:00 to 10:00pm ET!
Here is one session to check out today (time displayed is ET):
3:30 PM – 5:00 PM:
Litigation Support & Legal Operations: Ideas and Innovation Workshop: Be prepared to roll up your sleeves and actively participate in this interactive session! This will be a combination of a lightning-round expert panel, a town hall, and a peer-to-peer tabletop workshop. Attendees will have the opportunity to collaborate and solve some of the real world problems we face in litigation support and legal operations, today. A recap of challenges and solutions will be provided to attendees at the end of the session.
Takeaways:
- The opportunity to participate in collaborative problem solving.
- Exposure to issues attendees may or may not be aware of.
- List of collaborative solutions developed during the session for each of the scenarios identified.
Speaker: David Cowen, President & Managing Partner The Cowen Group.
So, what do you think? Are you attending ILTACON this year? Please share any comments you might have or if you’d like to know more about a particular topic.
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
Tuesday’s ILTACON 2018 Sessions: eDiscovery Trends
As noted yesterday, the International Legal Technology Association (ILTA) annual educational conference of 2017 (otherwise known as ILTACON) is happening this week and eDiscovery Daily will once again be covering the show and, this year, CloudNine will exhibiting at the show and participating in a major way. There’s still time to check out the show at the Gaylord National Resort in National Harbor, MD if you’re in the Washington DC area with a number of sessions available and as many as 209(!) exhibitors providing information on their products and services.
In addition to exhibiting at the show in booth 936, CloudNine will also host a happy hour today from 4:30 to 6:30pm ET at the National Harbor’s Public House (click here to register). Come and get to know CloudNine, your provider for LAW PreDiscovery®, Concordance® and the CloudNine™ SaaS platform! We’re also going to be the sunglass sponsor for the ACEDS Monumental Sunset Cruise tomorrow from 7:00 to 10:00pm ET!
Here are a few sessions to check out today (all times ET):
1:30 PM – 2:30 PM:
O365 and eDiscovery: What’s New?: Office 365, Microsoft’s current software suite, is often a “go-to” tool in e-Discovery. We’ll examine the strengths and weaknesses of each applications and get up to speed with all of the newest features. Additionally, we’ll examine the future of e-Discovery and what to expect from Microsoft as its products evolve.
Speakers include: Derek Nagel Esq., Consultant; John Collins, Director, Information Governance / Compliance The Options Clearing Corporation (OCC).
3:30 PM – 5:00 PM:
EDiscovery Directors’ Roundtable: What Keeps You Up at Night?: Litigation Support and eDiscovery Directors are tasked with running a business within a business. The challenges you face go beyond the case specific: From expanding services to other practice areas, how to best present your team’s value to clients and firm stakeholders, understanding your staffing and staff development needs and forecasting technology trends, to addressing evolving, complex data privacy and security concerns. Your job is to keep your business model relevant and profitable in an increasingly competitive and consolidated industry. This session will provide a forum for directors to share and learn from each other in a “safe” environment. The session is for law firm professionals at the director level only.
Takeaways:
- Gather, share, and identify growth opportunities for your department within your firm.
- Learn what’s worked for others in gathering metrics and presenting those to firm management.
- Compare and strategize how to overcome challenges and pain points unique to this role.
Speakers include: Joy Holley, Director of Practice Support Bryan Cave, LLP; Chris Haley, Director of Legal Technology Troutman Sanders LLP; Brian Jenson, Director, Litigation Support & E-Discovery Services Orrick, Herrington & Sutcliffe LLP.
Information Governance Roundtable: Come and enjoy a rich and detailed discussion among law firm information governance professionals. They will dive deep into current issues and future risks and issues of note.
Speakers include: Tamara Tureson, Compliance and Records Manager Faegre Baker Daniels LLP; Joshua Johns, Manager of CTS Platform, Process and Information Governance Faegre Baker Daniels LLP; Brian McCauley, Director of Information Governance Drinker Biddle & Reath LLP; Brianne Aul, Firmwide Senior Records and Information Governance Manager Morgan, Lewis & Bockius, L.L.P.; Jill Sterbakov, Information Governance Compliance Attorney Morgan, Lewis & Bockius, L.L.P.
So, what do you think? Are you planning to attend ILTACON this year? Please share any comments you might have or if you’d like to know more about a particular topic.
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
ILTACON 2018 Has Begun!: eDiscovery Trends
The International Legal Technology Association (ILTA) annual educational conference of 2018 (known as ILTACON) kicked off yesterday with several networking events, and begins in earnest today with the first day of sessions. As always, eDiscovery Daily will once again be covering the show and, this year, CloudNine will exhibiting at the show and participating in a major way. 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.
In addition to exhibiting at the show in booth 936, CloudNine will also host a happy hour on Tuesday, August 21 from 4:30 to 6:30pm ET at the National Harbor’s Public House (click here to register). Come and get to know CloudNine, your provider for LAW PreDiscovery®, Concordance® and the CloudNine™ SaaS platform! We’re also going to be the sunglass sponsor for the ACEDS Monumental Sunset Cruise on Wednesday, August 22 from 7:00 to 10:00pm ET!
If you’re in the Washington DC area, come check out the show at the Gaylord National Resort in National Harbor, MD – there are a number of sessions available and as many as 209(!) exhibitors providing information on their products and services. Sessions of interest (including one I’m speaking at today at 1pm!) in the main conference tracks include (all times ET):
11:00 AM – 12:00 PM:
The Future of eDiscovery: A Discussion Amongst Industry Leaders: What does the future of eDiscovery hold? Hear from industry leaders as they discuss their predictions of both the short and long-term future of the eDiscovery market. They’ll analyze anticipated disrupters and how their organizations are planning for change. Additionally, they’ll share practical steps for law firms to begin preparing themselves today.
Takeaways:
- Hear from industry vision leaders on what they see as our future in the eDiscovery space will be and how they are planning for any change within their organization.
- Learn about the market disruptors?
- What should law departments or law firms be thinking and preparing for?
Speakers include: Andrew Sieja, President & CEO Relativity; Jay Leib, Founder and CEO NexLP; Erin Harrison, Managing Director Baretz+Brunelle; Atanu Banerjee, Group Program Manager Microsoft Corporation.
1:00 PM – 2:00 PM:
eDiscovery Training Roadmap: In this interactive and informative session, we will walk through how to train and develop your eDiscovery staff. The discussion will help you determine who the stakeholders are and what skills do they need to succeed. We will also discuss eDiscovery best practices, training strategies, and defining work processes. The discussion will include types of training that won’t work and war stories from our veteran eDiscovery experts.
Speakers include: Gillian Glass, Director of Practice Support, Paralegals and Records Farella Braun + Martel LLP; Joy Murao, Founder, CEO Practice Aligned Resources.
eDiscovery and Litigation Support for Small Firms: Which Hat Should I Wear Today?: eDiscovery is a critical component of litigation these days. Learn how small firms can effectively manage eDiscovery and litigation support without a dedicated department and while juggling multiple tasks.
Speakers include: Brett Burney, Principal Burney Consultants; Doug Austin, Vice President of Products & Services CloudNine; Dana Wesley Sarti, Litigation Support Coordinator, Information Security Contact Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP; Sherry Rather, Litigation Support Coordinator Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP.
2:30 PM – 3:30 PM:
Managing Out-of-the-Ordinary Projects in eDiscovery: How does your firm approach out-of-the-ordinary projects? This session will provide hands on practical information on how to approach non-ordinary projects. Every project should be approached in the same manner, using fundamental project management steps. We will review these steps and provide insight on how some special projects were successful using these fundamentals.
Speakers include: Michael Quartararo, Managing Director eDPM Advisory Services; Richard Brooman, Litigation Support Project Manager Saul Ewing Arnstein & Lehr; Jessica Hasen, Counsel, E-Discovery Services and Strategy Perkins Coie; Jeremiah Weasenforth, Managing Project Attorney Orrick, Herrington & Sutcliffe LLP.
And, of course, you don’t want to miss the Exhibit Hall Opening Reception from 7:00 PM – 9:00 PM ET, where “there’s an open world of video games at ILTA’s Partner Video Game HQ” where attendees can play lots of video games while enjoying food and drink. Come join us at booth #936 and try to beat us in a game of Mario Kart 8 – you could win a Nintendo Switch!
So, what do you think? Are you planning to attend ILTACON this year? Please share any comments you might have or if you’d like to know more about a particular topic.
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
Preparing for Litigation Before it Happens: eDiscovery Best Practices, Part Seven
Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems. He has also been a great addition to our webinar program, participating with me on several recent webinars. Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s?, eDiscovery for the Rest of Us (which we also covered as a webcast) and Litigate or Settle? Info You Need to Make Case Decisions (which is our next scheduled webcast on August 29th). Now, Tom has written another terrific overview regarding pre-litigation considerations titled Preparing for Litigation Before it Happens that we’re happy to share on the eDiscovery Daily blog. Enjoy! – Doug
Tom’s overview is split into seven(!) parts, so we’ll cover each part separately. Parts one, two and three were published last week, part four was published Monday, part five was published Tuesday and part six was published yesterday. Here’s the seventh and final part.
BTW, in addition to exhibiting at ILTACON in National Harbor, MD next week in booth 936, CloudNine will also host a happy hour on Tuesday, August 21 from 4:30 to 6:30pm ET at the National Harbor’s Public House (click here to register). Come and get to know CloudNine, your provider for LAW PreDiscovery®, Concordance® and the CloudNine™ SaaS platform! We want to see you!
Concluding Remarks
An IG strategy will depend entirely upon the business practice of your client and their various needs, including but not limited to proactive handling of eDiscovery matters for litigation.
ARMA suggests five main guidelines for building out the IG strategy that provide terrific guidance for any organization looking to implement or improve its IG program. They are:
1) Think big but start small: A good data governance process has three components: people, process and technology. Start by identifying and hiring the right people, then define a process, and finish by sourcing the technology to get the job done.
2) Build a business case: I had a client tell me once, “anyone can tell me what my problem is, Tom. You suggest solutions.” What are your goals? What are you trying to improve and how will the IG policy do it? Show an ROI to drive the change.
3) Metrics: You must be able to measure progress and display success to make your plan succeed. And since the plan will most likely take time to implement, use metrics to set milestones and measure progress.
4) Communicate: Regular and consistent communication is essential to show progress and correct problems that may arise during implementation. Include not just team members but all people in the organization with an emphasis on key players.
5) Get buy in: The project must become part of the business not something with a beginning and end date. You are making changes, not a product. Get buy in from everyone.
With an increased concentration on the two-fold concerns of privacy and security, IG has become more important than ever. These five guidelines can help your organization more efficiently and cost-effectively manage its data, enabling it to accomplish its organizational IG goals.
So, what do you think? Does your organization have a plan for preparing for litigation before it happens? As always, please share any comments you might have or if you’d like to know more about a particular topic.
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
Preparing for Litigation Before it Happens: eDiscovery Best Practices, Part Six
Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems. He has also been a great addition to our webinar program, participating with me on several recent webinars. Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s?, eDiscovery for the Rest of Us (which we also covered as a webcast) and Litigate or Settle? Info You Need to Make Case Decisions (which is our next scheduled webcast on August 29th). Now, Tom has written another terrific overview regarding pre-litigation considerations titled Preparing for Litigation Before it Happens that we’re happy to share on the eDiscovery Daily blog. Enjoy! – Doug
Tom’s overview is split into seven(!) parts, so we’ll cover each part separately. Parts one, two and three were published last week, part four was published Monday and part five was published Tuesday. Here’s the sixth part.
BTW, in addition to exhibiting at ILTACON in National Harbor, MD next week in booth 936, CloudNine will also host a happy hour on Tuesday, August 21 from 4:30 to 6:30pm ET at the National Harbor’s Public House (click here to register). Come and get to know CloudNine, your provider for LAW PreDiscovery®, Concordance® and the CloudNine™ SaaS platform! We want to see you!
One Reason Why IG is Not More Popular
I have developed one theory for why formal IG policies and software have not been used more widely. It is that the increased improvements in and use of technology to analyze data and find patterns in Big Data has preempted more widespread use of IG applications.
This is not a new phenomenon. Knowledge Management pioneers were doing this type of development years. People like Ron Friedmann, Partner at Fireman & Co. and Peter Krakaur, Vice President of Legal Business Solutions at United Lex, were building home-grown systems at their firms (Ron at Wilmer Cutler Perkins in the early 90’s and Peter at Brobeck Phleger & Harrison came in the early 2000’s) to share, use and manage internal information. These KM systems were the first multidisciplinary approach to achieving organizational objectives by making the best use of enterprise wide knowledge
Search engines were not unique but later came blazingly fast search engines like X1. Using indexing across more than 500 filetypes, X1 allowed unified searching through their local data indices across multiple data types with a user-friendly interface.
Then came Google with it’s equally fast web-based searching. Google wanted to index all the information they were collecting and then present meaningful results to users. There was nothing on the market that would do that, so they built their own platform which eventually came to be the open source project Nuch. Hadoop was spun-off from that and Yahoo then helped develop Hadoop for enterprise applications.
Both Google and then Hadoop were designed to search large amounts of data that didn’t fit into tables and could benefit from analytical searching. Further, Hadoop was designed to run on a large number of machines that don’t share either memory or disks, so users could buy their own servers, link them together and run Hadoop on each one. The result is you can have organizational data on multiple separate servers and Hadoop is good at dealing with data spread across multiple servers.
So, as the data environment became one where early systems in limited domains were struggling to find distributed data, the need arose for this new generation of knowledge management solutions using semantic and linguistic capabilities that could provide system wide information access in a non-structured way.
Ralph Losey made the point best when he observed that “AI-Enhanced Big Data Search Will Greatly Simplify Information Governance” (in this blog post here). Why? Because as he put it,
In order to meet the basic goal of finding information, Information Governance focuses its efforts on the proper classification of information. Again, the idea was to make it simpler to find information by preserving some of it, the information you might need to access, and destroying the rest. That is where records classification comes in.
This creates a basic problem for Information Governance because the whole system is based on a notion that the best way to find valuable information is to destroy worthless information. Much of Information Governance is devoted to trying to determine what information is a valuable needle, and what is worthless chaff. This is because everyone knows that the more information you have, the harder it is for you to find the information you need. The idea is that too much information will cut you off. These maxims were true in the pre-AI-Enhanced Search days, but are, IMO, no longer true today, or, at least, will not be true in the next five to ten years, maybe sooner.
The interesting point is that Ralph said this in 2014. That’s right. Four years ago. So maybe the issue with lack of IG deployment is that were undergoing the same realization that Ralph articulated and were drifting away from IG programs into more analytics-based programs that they could build themselves.
As I pointed out above, business data can be regulated by hundreds if not thousands of federal, state and local laws which require different types of information to be preserved for different lengths of time. Information governance thus became a very complicated legal analysis problem and building an IG policy around this “records life-cycle” paradigm to reflect those requirements might have made sense in a paper world.
But Big Data in the ESI world is cheap to store and easy to search, especially with the new analytic algorithms and the new paradigm is what Ralph calls “Save and Search v. Classify and Delete.” Ralph also likes to call all this new analytic power “AI.” I myself think that’s an underdefined and over used label but is the name really important? If I can use a newer analytical search product such as Brainspace or Heureka to effectively comb through massive amounts of corporate data and then see trends and links among users and data types I’m not sure that it matters what we call it.
To sum up, Ralph sees three big advances in the field of search analytics that are dictating the new alternatives to IG: Big Data, cheap parallel computing and better algorithms. All three of those combine to make IG systems less important as clients learn to adopt aggressive search strategies with new technology that allow them to find data for both corporate strategy and litigation avoidance.
We’ll publish Part 7 – Concluding Remarks – tomorrow.
So, what do you think? Does your organization have a plan for preparing for litigation before it happens? As always, please share any comments you might have or if you’d like to know more about a particular topic.
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.