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Avoiding Glittering Generalities in Selecting eDiscovery Software – Considering Complexity: eDiscovery Best Practices

Editor’s Note: If you read our blog regularly, you know that we frequently reference my friend and CloudNine colleague Rob Robinson’s excellent blog, Complex Discovery for various industry information, including quarterly business confidence surveys, eDiscovery software and service market “mashups” and information about industry mergers and acquisitions (among other things).  We’ve been discussing aspects of on-premise and off-premise eDiscovery offerings quite a bit lately (including this recent webcast conducted by Tom O’Connor and me a few weeks ago) and Rob has written a terrific article on the subject which he has graciously allowed me to publish here.  This is the fourth part of his multi-part article (parts 1, 2 and 3 here, here and here) – we will publish it in a series over a couple of weeks or so.  Enjoy! – Doug

Considering Complexity

“Simplicity does not precede complexity, but follows it.” Alan Perlis

The ability of eDiscovery software to deal with data complexity such as being able to ingest and process an increasing number of data formats is one of the most important challenges faced by eDiscovery professionals today. In fact, according to the Summer 2017 eDiscovery Business Confidence Survey, almost 22% of 101 eDiscovery ecosystem respondents highlighted that the challenge of increasing types of data would have the biggest impact on their business during the next six months.

In facing this challenge, many organizations have employed a combination of software offerings, integrated through workflow, to address both non-complex and complex data in their discovery efforts. One example of this combinatorial approach to solving this specific challenge is to employ an off-premise, SaaS-based offering using a private cloud approach based on emerging technology and then leveraging an on-premise, mature eDiscovery processing engine to address volume and file format challenges not able to be addressed by the off-premise platform. This combination approach takes advantage of the speed and cost benefits of the cloud to deal with a majority of eDiscovery volume and file format challenges and the robustness of a mature on-premise offering to address complexity challenges presented by high volumes of data and an increasing number of file formats. While many software providers highlight the fact that their specific offering can handle all eDiscovery challenges, their assertion may have limits. Those limits being that it may take much more time to complete high volume and non-mainstream file format related requests than with the prudent approach of a combination of on-premise and off-premise offerings offering a balance of emerging and technology.

Quick Takeaway: With the complexity of many eDiscovery challenges, a combination of software solutions may be required to accomplish certain complex task requirements satisfactorily. These combinations of solutions may include on-premise and off-premise offerings working in a complementary fashion. Given that most organizations will face a degree of complexity at some point that cannot be solved by a single eDiscovery solution, it seems reasonable to make offering selections that do not prevent efficient interoperability with other platforms.

Thursday, we will address the last area of evaluation, providing a consideration of cost.

So, what do you think?  What factors do you consider when evaluating and selecting eDiscovery software?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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.

“Master” Your Knowledge of eDiscovery With This Conference in Washington DC This Week: eDiscovery Trends

If you’re going to be in the Washington DC area this Thursday and/or Friday, October 12th and 13th, join me and other legal technology experts and professionals at The Master’s Conference 2017 DC event.  It’s a day and a half of educational sessions covering a wide range of topics!

The Master’s Conference brings together leading experts and professionals from law firms, corporations and the bench to develop strategies, practices and resources for managing eDiscovery and the information life cycle.  This year’s Washington DC event covers topics ranging from privacy to cybersecurity to predictive coding and AI, among other things.

The event will be held at The National Press Club, 529 14th St NW, Washington, DC 20045.  It’s about a block and a half away from the White House.  Registration begins at 8am each day, with sessions starting right after that, at 8:30am.

CloudNine will be sponsoring the session On Premise or Off Premise? A Look At Security Approaches to eDiscovery at 2:45pm on Thursday, October 12th.  I will be moderating a panel that includes Kelly Twigger, Principal with ESI Attorneys, James Zinn, Director of Channel Management with Relativity and Sean Weppner, Managing Director of Operations at Nisos Group.

Our panel discussion will discuss on-premise and off-premise eDiscovery solutions and considerations for each.  It should be a very informative discussion with a very knowledgeable panel!  Hope you can join us!

Click here to register for the conference.  If you’re a non-vendor, you can save $125 by registering before Wednesday for the entire conference or $100 by registering before Wednesday to attend one day.  So, if you plan to attend and haven’t registered yet (why not?), now is the time to do it.

This year, The Master’s Conference still has one more event scheduled for Orlando.  Click here for more information on remaining scheduled events for the year.

So, what do you think?  Are you going to be in Washington DC this Thursday and Friday?  If so, come join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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 Motions to Compel Against Various Defendants, For Various Reasons: eDiscovery Case Law

In Blosser v. Ashcroft, Inc., et al., No. C17-5243 BHS (W.D. Wash. Sep. 19, 2017), Washington District Judge Benjamin H. Settle settled this dispute for now between the plaintiffs and three defendants over discovery disputes by denying the plaintiffs’ motions to compel against all three defendants, two of them without prejudice.

Case Background

In this case by the plaintiffs against several defendants alleging liability resulting from exposure to asbestos, the plaintiffs filed motions to compel against three defendants in July 2017, with all three defendants responding in August 2017, followed shortly by plaintiffs’ reply to each response.

With regard to defendant Weir, the parties’ dispute stemmed over Weir’s search of its electronic database.  The plaintiffs sought information on “any and all Atwood-Morrill valves on the Kitty Hawk and the Peleliu at any time, as well as any of its valves and replacement parts sent to PSNS in 1976 and 1977 when Mr. Blosser was working there”, but Weir contended that its database is not searchable by ship name or hull number and that doing a manual review would be “incomprehensible.”

With regard to defendant William Powell, the plaintiffs moved for an order (1) striking the boilerplate objections, (2) compelling William Powell to fully produce relevant documents, and (3) produce a 30(b)(6) deponent (the parties ultimately resolved the 30(b)(6) issue, so the Court denied this portion of the motion as moot).  Regarding the request for production, William Powell asserted that “it has no documents responsive to [the Blossers’] requests”, but the plaintiffs submitted deposition testimony from 2009 and asserted that William Powell must have relevant documents because its website “makes clear that it has an available database from which to mine information.”

With regard to defendant Flowserve, the dispute existed over determining a date for the 30(b)(6) deposition as well as the date for Flowserve to produce documents.

Judge’s Ruling

With regard to defendant Weir, Judge Settle observed that “it is unclear whether the parties conferred or attempted to confer to resolve this dispute without Court action”, noting that the plaintiffs’ attorney threatened a motion to compel regardless of Weir’s attempt to comply with the discovery requests (“we would be filing a motion to compel regardless because our document requests were broader than the limitation Weir had unilaterally imposed.”) and citing an email exchange from Weir that included the exact same threat to file a motion to compel without any indication of a good faith attempt to resolve this dispute.  To this, Judge Settle said “This failure alone is sufficient to deny the motion to compel.”

However, briefly addressing the merits of the dispute anyway, Judge Settle indicated that he “agrees with the Blossers that the information it seeks seems relevant and readily identifiable” and noted that “Weir’s response seems rather illusive in that it asserts there is only one possible way to electronically search its database.”  So, Judge Settle denied the motion without prejudice and ordered the parties “to meet and confer on the issue of searching Weir’s database.”

With regard to defendant William Powell, Judge Settle denied the plaintiffs’ motion, stating: “The Court cannot compel a party to produce that which its attorney certifies it does not have in its possession. Stale testimony and speculation based on website advertisements do not overcome an attorney’s certification to the Court.”

With regard to defendant Flowserve, Judge Settle stated that “the Blossers have failed to show that a dispute exists that requires Court intervention”, noting that the plaintiffs’ attorney acknowledged that several dates had been proposed by both sides on the 30(b)(6) deposition and that Flowserve contended that it informed the plaintiffs that it will “make responsive documents available at a mutually agreeable time and location” and that the “invitation remains outstanding.”  So, Judge Settle denied the plaintiffs’ motion without prejudice.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

So, what do you think?  What should parties be required to do to demonstrate to the court that their opponent has responsive data it’s not producing?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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.

Avoiding Glittering Generalities in Selecting eDiscovery Software – Considering Capability: eDiscovery Best Practices

Editor’s Note: If you read our blog regularly, you know that we frequently reference my friend and CloudNine colleague Rob Robinson’s excellent blog, Complex Discovery for various industry information, including quarterly business confidence surveys, eDiscovery software and service market “mashups” and information about industry mergers and acquisitions (among other things).  We’ve been discussing aspects of on-premise and off-premise eDiscovery offerings quite a bit lately (including this recent webcast conducted by Tom O’Connor and me a few weeks ago) and Rob has written a terrific article on the subject which he has graciously allowed me to publish here.  This is the third part of his multi-part article (parts 1 and 2 here and here) – we will publish it in a series over the next couple of weeks or so.  Enjoy! – Doug

Considering Capability

“Technology is a useful servant but a dangerous master.” Christian Lous Lange

Once the security of a potential solution has been considered, the next reasonable area of examination and evaluation is that of capability. Assessing capability is just determining whether or not a solution can accomplish the necessary tasks required in an eDiscovery effort. While there are not always discernible differences in the capabilities of on-premise and off-premise offerings, there are some characteristics to consider as they may be indicators of the ability of a solution to meet actual needs as opposed to perceived needs. Some of these characteristics include maturity, integration, and automation.

The maturity of an offering is important as it helps inform one on how long an offering has been in the market and if it might or might not contain the latest and most efficient technology to accomplish eDiscovery tasks. However, maturity becomes a factor only when it contributes to the inability of a solution to perform the task for it is being asked to complete. If a mature solution is incapable of completing a task today based on lack of functionality or in the near-term based on discontinued support, then it might not be the most appropriate solution from a purchase protection perspective. On the other hand, if it works today and will be maintained in the future, it seems reasonable that the mature offering should not be excluded as a potential choice solely based on the time it has been available on the market.

When discussing maturity, many eDiscovery professionals often and wrongly categorize maturity as legacy and equate legacy with insufficiency. This generalization may be true in some cases. However, some of the most mature offerings in the marketplace today are still the most effective at accomplishing specific tasks. Given that some of the most mature offerings are on-premise, there may be situations where the most appropriate choice for a particular task might be accomplished with an on-premise solution. It is easy to react to the glittering generality of considering all mature technology as legacy and therefore not as good as newer offerings. However, make sure that judgment on capability is first and foremost on the ability of the offering to complete required tasks and not on the time an offering has been in the marketplace.

Integration of an offering is also an important selection characteristic as it may indicate the potential for time and cost efficiencies lacking in non-integrated solutions. For example, offerings that have internal or external technology integration points for ingestion, processing, and review tasks might be more desirable than non-integrated offerings. However, integration without appropriate capability is not acceptable as one cannot be successful in eDiscovery if one cannot perform required tasks.

Automation in eDiscovery should be considered in the same way integration is considered. If automation is available, then it may be desirable over non-automated solutions based on time and cost savings delivered in task completion. However, automation ceases to be important if the tasks being automated are unable to complete required tasks. An example of this would be the automation of ingestion and processing in an offering. Automation of these tasks may be beneficial for certain data types, but if the data types that need to be processed cannot be processed due to lack of system capability, then the time efficiencies of automation may be negated by the time required for manual processing.

Additionally, not all offerings are created equal in their capability to accomplish tasks on large volumes of data. This volume limitation on an offering’s capability is not one usually found in a provider’s software marketing materials or user’s guides, but it is usually well known by those who have implemented specific solutions that fall short in this capability. In fact, even some of the newer, cloud-based off-premise offerings fall short in this area, so short that they position their offering for best use in small and medium cases sizes.  This type of data volume capability limitation is becoming increasingly important as the challenge of increasing volumes of data is regularly noted as one of the top concerns of eDiscovery professionals.

Quick Takeaway: In examining the capability of an offering, the first focus should be on its ability to accomplish required tasks. If it can complete required tasks, then it is reasonable to consider its maturity, integration, and automation as selection data points for comparison. Integration, especially external integration points with other offerings, should be a key consideration in offering selection as very few eDiscovery platforms can handle all eDiscovery challenges without the use of complementary platforms.

Next week, we will address the last two areas of evaluation, providing a consideration of complexity and cost.

So, what do you think?  What factors do you consider when evaluating and selecting eDiscovery software?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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.

Here’s a Chance to Learn from the Epic Mistakes of Other High Profile Organizations: eDiscovery Best Practices

The recent eDiscovery failures at Wells Fargo and at the Department of Justice show that eDiscovery mistakes and failures happen even at the largest corporations and government agencies.  Here’s your chance to learn from their mistakes.

On Wednesday, October 25 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Lessons Learned from Recent eDiscovery Disasters. In this one-hour webcast that’s CLE-approved in selected states, we will discuss the various issues that occurred in these high-profile cases and what to do to avoid them in your own cases.  Topics include:

  • Attorney Duty of Competence
  • Managing Communications: Attorney Responsibilities
  • Managing Communications: Vendor Responsibilities
  • Recommended Workflows for Tracking Review
  • Common Redaction Mistakes and How to Avoid Them
  • Checking for Personally Identifiable Information (PII)
  • Key Takeaways for Better eDiscovery Project Management

I’ll be presenting the webcast, along with Tom O’Connor, who is now a Special Consultant to CloudNine!  If you follow our blog, you’re undoubtedly familiar with Tom as a leading eDiscovery thought leader (who we’ve interviewed several times over the years) and I’m excited to have Tom as a participant in this webcast!  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  It just might keep you from being mentioned in The New York Times – not in a good way.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

So, what do you think?  Do you know any other eDiscovery “epic fail” stories?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Avoiding Glittering Generalities in Selecting eDiscovery Software – Considering Security: eDiscovery Best Practices

Editor’s Note: If you read our blog regularly, you know that we frequently reference my friend and CloudNine colleague Rob Robinson’s excellent blog, Complex Discovery for various industry information, including quarterly business confidence surveys, eDiscovery software and service market “mashups” and information about industry mergers and acquisitions (among other things).  We’ve been discussing aspects of on-premise and off-premise eDiscovery offerings quite a bit lately (including this recent webcast conducted by Tom O’Connor and me a few weeks ago) and Rob has written a terrific article on the subject which he has graciously allowed me to publish here.  This is the second part of his multi-part article (part 1 here) – we will publish it in a series over the next couple of weeks or so.  Enjoy! – Doug

Considering Security

“Distrust and caution are the parents of security.” Benjamin Franklin

The security of data is fast becoming one of the most prominent and visible areas of concern in the selection of eDiscovery software solutions. With public examples of data security failures increasing in regularity and impact, it behooves any discovery solution decision maker to carefully consider how they manage this important risk factor and make decisions based on facts.

Control of data, applications, servers, storage, and network connectivity behind an organization’s firewall has traditionally been viewed as the most secure of available eDiscovery solution deployment options. In this on-premise security approach, an organization has complete control of data and all the elements that might act on the data in the course of eDiscovery. For organizations that have an established security infrastructure, on-premise offerings appear to be a safe approach to eDiscovery security as they minimize security risk through the exercise of direct control of data.  The on-premise approach also seems highly desirable to many organizations sensitive to data transfer regulations and privacy requirements as it ensures they maintain a direct understanding of the physical location of data and have the ability to act on that data at all times.  From an acceptance standpoint, according to a recent eDiscovery industry report from the Aberdeen Group (covered by us here), organizations are 50% more likely to have an on-premise eDiscovery solution than a cloud-based one.  With these facts in mind, it seems reasonable to conclude that an on-premise approach to security is a safe method that is and should continue to be used by many organizations as part of their eDiscovery solution even in the face of growing acceptance of off-premise alternatives.

With the mainstream acceptance of cloud computing, the off-premise approach to delivering eDiscovery software is experiencing increasing in acceptance. This acceptance is based on many attributes, one being the evidence that off-premise offerings delivered via SaaS may be able to satisfactorily address many of the security requirements previously only achievable in on-premise offerings.  Reasons for this growing acceptance of cloud-centric eDiscovery solutions as secure on-premise alternatives include but are not limited to the following security elements:

  • Sophisticated Encryption: The ability to encrypt data in various states of movement and rest.
  • Security Experts on Staff: The availability of experts to continuously monitor and address security requirements.
  • First Access to Emerging Technologies: The access to emerging technologies based on size and centralization of data.

These elements of security are increasingly available in cloud offerings and are helping make the use off-premise eDiscovery solutions acceptable when viewed through the lens of security.

There are also different types of cloud implementations that may contribute to the overall security of a particular cloud-centric solution. There are pure public clouds that operate exclusively on a public cloud infrastructure and are delivered by companies such as Amazon, Microsoft, and Google. There are also private cloud solutions that combine the economic and access benefits of pure public cloud solutions with the added security of provider-owned resources that allow for determination of the exact physical location of data at any time. This ability to reach out and physically locate client data is a desirable security attribute of private clouds, especially in light of increasing regulatory and legal requirements around the disposition and disposal of personally identifiable information.

Given the current state of security of most public and private cloud eDiscovery offerings, it seems reasonable to suggest that there are many appropriate cloud-based offerings from a solely security-centric perspective.

Regardless of on-premise or off-premise approach, there are always some areas of security concern that transcend delivery approach. One example of this type of security concern is the transfer of productions outside of the firewall or cloud-secured environment to requesting parties. However, there are also many ways to mitigate even this risk through the use of secure transfer protocols, encryption, and shared access to secure servers managed with role-based access. In fact, some vendors present this concern of data transfer security argument as a reason not to consider a solution when in fact the real reason the vendor highlights this risk is that getting data out of their system is incredibly time-consuming and they want to direct users to proprietary approaches that mitigate data transfer speed deficiencies. Said differently, when evaluating software provider arguments and objections to differing security concerns, make sure you accurately understand the cause of the concern as it may be more related to performance deficiencies than security deficiencies.

Quick Takeaway: Both on-premise and off-premise offerings may be sufficient to meet organizational security requirements. However, some approaches may mitigate security risk more comprehensively than others, so it is important to understand current and potential future security requirements when selecting eDiscovery software.

Thursday, we will address the next area of evaluation, providing a consideration of capability.

So, what do you think?  What factors do you consider when evaluating and selecting eDiscovery software?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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.

It’s a “Fest” of Us, For the “Best” of Us: eDiscovery Trends

See what I did there?  Frank Costanza would be proud.

We’re about three weeks out from this year’s Relativity Fest conference, conducted every year by Kcur, uh, Relativity (sorry, old habits die hard).  Relativity Fest is an annual conference designed to educate and connect the eDiscovery community and features over 160 panel discussions, as well as hands-on labs, breakout sessions, and insights from Relativity staff, Relativity users, and industry leaders.  It’s a big show with over 2,000 attendees and a lot going on.

This year, Relativity Fest is October 22 through 25 in Chicago at The Hilton Chicago (where the final scenes of the 1993 movie The Fugitive, with Harrison Ford and Tommy Lee Jones, was filmed).

As a development partner in the Relativity ecosystem, CloudNine will be the conference and will be there to provide demonstrations of our Outpost for Relativity that automatically ingests and loads data into Relativity based on your specified criteria.

Also, I will be covering the show for eDiscovery Daily, and I’m delighted to say that I will also be speaking at a session at the conference.  My session is e-Discovery in the Cloud, on Tuesday, October 24 at 11:00 am, moderated by David Horrigan, e-Discovery Counsel and Legal Content Director at Relativity and we will be joined by Rachi Messing, Senior Program Manager at Microsoft, Ari Kaplan, Principal at Ari Kaplan Advisors and Kelly Twigger, Founder of ESI Attorneys.

In addition to that session, there are several other interesting looking sessions at the conference, including:

  • Beer and Basics: e-Discovery 101 and Relativity Fundamentals, Sunday (10/22) at 5:30pm with David and Michael Quartararo, Director of Litigation Support at Stroock & Stroock & Lavan LLP – what goes better with eDiscovery than beer and wine?
  • e-Discovery in Asia, Monday (10/23) at 11:00am, a panel discussion with eDiscovery providers and practitioners from China, Korea, and Japan to discuss the eDiscovery legal framework in their respective countries.
  • The Judicial Panel, Monday (10/23) at 1:00pm, with David (again – he’ll be quite busy that week), along with Judge Nora Barry Fischer of the Western District of Pennsylvania, Judge Andrew Peck of the Southern District of New York, Judge Xavier Rodriguez of the Western District of Texas and (all the way from Australia) Justice Peter Vickery of the Supreme Court of Victoria (and the recent landmark TAR decision in that country) to discuss the latest legal developments in eDiscovery.
  • It’s a Small World After All: Solving Challenges in Multilingual Reviews, Monday (10/23) at 3:30pm and Tuesday (10/24) at 8:30am, experts from McDermott Will & Emery will discuss various best practices in dealing with various challenges associated with foreign language data.
  • A Practical Roadmap for EU Data Protection and Cross-Border Discovery, Tuesday (10/24) at 1:30pm, with GDPR and other cross-border challenges emerging, this should be an interesting session.
  • Plaintiffs Can Use Technology, Too!, Wednesday (10/24) at 8:30am, perspectives from a judge, a lawyer, and a technologist on successful use of technology on large received productions (and the judge is retired Judge Shira Scheindlin!).

To register to attend Relativity Fest, click here.  It’s not too late!  And, the Cubbies may still be in the baseball playoffs then(!) – though the Astros are going to win it all this year, just sayin’… :o)

So, what do you think?  Are you attending Relativity Fest this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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.

Avoiding Glittering Generalities in Selecting eDiscovery Software: eDiscovery Best Practices

Editor’s Note: If you read our blog regularly, you know that we frequently reference my friend and CloudNine colleague Rob Robinson’s excellent blog, Complex Discovery for various industry information, including quarterly business confidence surveys, eDiscovery software and service market “mashups” and information about industry mergers and acquisitions (among other things).  We’ve been discussing aspects of on-premise and off-premise eDiscovery offerings quite a bit lately (including this recent webcast conducted by Tom O’Connor and me a few weeks ago) and Rob has written a terrific article on the subject which he has graciously allowed me to publish here.  This is the first part of his multi-part article – we will publish it in a series over the next couple of weeks or so.  Enjoy! – Doug

Forget the glittering generalities of opinioned providers and professionals trying to champion a particular approach to eDiscovery at the exclusion of others. The reality is that on-premise and off-premise solutions delivered as part of both emerging and mature technology implementations are and will continue to be a fundamental piece of any eDiscovery software portfolio if an organization wants to address the areas of security, capability, complexity, and cost comprehensively.

Considerations for the Selection of eDiscovery Software

One of the ongoing topics in the area of eDiscovery software revolves around assertions and attestations on what is the optimal delivery model for achieving the best balance of security, capability, complexity, and cost in an eDiscovery software offering. On one end of the spectrum, there are champions of the on-premise approach whose argument centers around security and capability and highlights that ability to deal with complex data sets is more important than how long the software has been on the market. On the other end of the spectrum, there are champions of the off-premise approach, also known as the cloud-enabled approach, whose argument centers around the speed and cost benefits of self-service discovery supported by the economics of a public cloud infrastructure. Between the ends of this spectrum reside a variety of offerings that combine attributes of both on-premise and off-premise offerings to deliver unique solutions.

So, how does one go about determining what might be the best offering to help them solve their on-going eDiscovery challenges? That is a great question and one without a single definitive answer. However, the following considerations may be helpful to eDiscovery professionals as they examine on-premise, off-premise, and combination software approaches with the goal of determining what the best-balanced solution might be for their needs.

Four Areas of Evaluation

Regardless of the type of delivery approach selected for the conduct of eDiscovery, there at least four attributes that should be considered in every solution selection. These attributes are:

  • Security: Does the solution provide the level of data protection needed for your eDiscovery effort?
  • Capability: Does the solution allow you to complete the basic tasks required for your eDiscovery effort?
  • Complexity: Does the solution allow you to complete advanced tasks required for your eDiscovery effort?
  • Cost: Does the solution address security, capability, and complexity in a cost-effective manner?

The ability to approach these attributes individually and collectively to find a solution that meets requirements, preferences, and budgets, ultimately determines whether an organization is successful from a legal, technological, and business perspective in the accomplishment of eDiscovery.  Next week, we will begin to touch on each of these areas of evaluation, beginning with a consideration of security.

So, what do you think?  What factors do you consider when evaluating and selecting eDiscovery software?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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 Opts for Lesser Sanction for Failure to Preserve Electronic Vehicle Data: eDiscovery Case Law

In Barry v. Big M Transportation, Inc., et al., No. 1:16-cv-00167-JEO (N.D. Ala. Sep. 11, 2017), Alabama Chief Magistrate Judge John E. Ott denied the plaintiffs’ request for default judgment sanctions for failing to preserve a tractor-trailer involved in an automobile accident and its “Electronic Data/Electronic Control Module (ECM) Vehicle Data Recorder/Black Box” and the data associated with the ECM device.  As an alternative sanction, Judge Ott indicated the intent to tell the jury that the ECM data was not preserved and to allow the parties to present evidence and argument at trial regarding the defendant’s failure to preserve the data.

Case Background

In this case arising out of a motor vehicle accident which was filed in Alabama state court and then removed to federal court, the plaintiffs sought to recover compensatory and punitive damages for their injuries and asserted claims against the trucking company and the driver of the truck.  Both defendants filed a motion for summary judgment on the plaintiffs’ claims and the plaintiffs filed a motion for partial summary judgment on the defendants’ affirmative defenses of contributory negligence, assumption of the risk, and intervening cause, as well as a “spoliation sanction” in the form of either a default judgment on the defendants’ negligence liability or an order judicially establishing certain facts against the defendants.

As a part of their motion for partial summary judgment, the plaintiffs requested a spoliation sanction against the defendants for their failure to preserve the tractor’s ECM data following the accident (or the tractor for that matter, which was sold), moving for either a default judgment on the defendants’ negligence liability or an order by the Court establishing “the speed [at] which {the driver} was driving and the maneuvers he made in the light most favorable” to the plaintiffs. In response, the defendants argued that the failure to preserve the ECM data was “well-reasoned and justifiable” and even if seen as not reasonable, didn’t warrant the imposition of sanctions. In addition, the driver defendant argued that he had no duty to preserve the tractor’s ECM data at the time of the accident or had any custody or control over the tractor following the accident.

Judge’s Ruling

In considering the request for sanctions, Judge Ott found that “Big M—but not Shaffer—is guilty of spoliation. Big M’s corporate representative, Benton Elliott, confirmed that it is Big M’s normal practice to retrieve the ECM data from a tractor if they know a collision is severe, and he admitted that there was nothing preventing Big M from preserving the ECM data in this instance.”

However, Judge Ott indicated that he was “unwilling to impose either of the severe sanctions requested by the Barrys for a number of reasons”, including 1) he was “not convinced that Big M acted with the intent to deprive the Barrys of the use of the ECM data”, that 2) “it was Big M’s impression that the Barrys were at fault for the accident”, that 3) “the Barrys have not been prejudiced to such an extent that the severe sanctions they have requested would be warranted” and 4) “the Barrys have not shown that Shaffer bears any responsibility for the loss of the ECM data.”

As a result, Judge Ott ruled that “the Barrys’ request for spoliation sanctions will be denied to the extent they have asked the Court to enter a default judgment on the Defendants’ negligence liability or, alternatively, to enter an order judicially establishing the speed at which Shaffer was driving and the maneuvers he made prior to impact in the light most favorable to the Barrys. However, as an alternative sanction, the Court intends to tell the jury that the ECM data was not preserved and will allow the parties to present evidence and argument at trial regarding Big M’s failure to preserve the data.”

So, what do you think?  Is that a sufficient sanction for failing to preserve the truck and the ECM data?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

Case opinion link courtesy of eDiscovery Assistant.

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.