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eDiscoveryDaily

E-Discovery Day 2.0: eDiscovery Trends

We’ve recently celebrated Halloween, we’re about to celebrate Thanksgiving.  Guess what we celebrate next?  You guessed it, it’s…E-Discovery Day!*

As the site for E-Discovery Day states, “[o]n December 1, 2016, thousands of Legal and IT professionals will gather both online and off to discuss e-discovery. They will be met with a full day worth of informative webcasts, in-person networking events and more—all hosted by E-Discovery Day sponsors.”

Last year, according to their site, there were 1,351 webcast participants, 26 eDiscovery experts who presented and 83% of last year’s participants said they would participate again this year.

This year, there are several excellent webcasts scheduled, including:

  • Mainstream News & E-Discovery: What You Should Be Watching Out for in 2017: Panelists Craig Ball, Robert Cruz, Tara Jones and Zach Warren will recap what news events you should be tracking and proactively advising your legal team on to ensure you’re prepared to take on new e-discovery risks in 2017. Presented by Actiance and Exterro.  TIME 11:15 AM ET / 8:15 AM PT
  • Rule 26(b)(1): How to Make a Persuasive Proportionality Argument: In this webcast, learn tips for making a persuasive proportionality argument that will hold up in court and how offering alternative remedies to overbroad productions requests can heighten your changes for a favorable ruling from panelists Judge Joy Conti, Ralph Losey and Maura Grossman. Presented by Exterro.  TIME 12:30 PM ET / 9:30 AM PT
  • 10 Years Forward and Back – Automation in eDiscovery: This unique session highlights the progress of eDiscovery technologies during the last decade and looks forward through the lens of innovation to the next ten years data discovery. Panelists including Mary Mack, George Socha, Doug Austin, David Horrigan, Bill Dimm, Bill Speros will be sharing their thoughts and considerations regarding the use of Technology-Assisted Review. Presented by ACEDS and CloudNine.  TIME 1:00 PM ET / 10:00 AM PT
  • What is E-Discovery Costing Your Organization?: In this webcast, benchmark your organization’s e-discovery costs against others and learn what metrics you should be focusing on to accurately track your e-discovery spend with panelists William Hubbard, Ross Dubinsky and Bobbi Basile. Presented by HBR Consulting, Exterro and Morae Legal.  TIME 1:45 PM ET / 10:45 AM PT
  • Rule 37(e): Less Sanctions, More Negotiating: In this webcast, learn how the courts are currently interpreting this new spoliation standard and get tips for safeguarding your organization from future spoliation sanctions with panelists Joshua Gilliland, Esq., Judge John Facciola (Ret.) and David Rohde, Esq. Presented by Epiq and Exterro.  TIME 3:00 PM ET / 12:00 PM PT
  • Why Every Firm/Legal Department Needs to Invest More in Legal Project Management: In this webcast, learn how to utilize legal project management principles and tools to get tasks completed faster and discover how other legal teams have incorporated legal project management at their organizations with panelists Seth Eichenholtz, David Yerich, Esq. and Thomas Mullane. Presented by Exterro and LTPI.  TIME 4:15 PM ET / 1:15 PM PT
  • E-Discovery Training for 2017: In this webcast, learn how to take your e-discovery acumen to the next level with insights from legal/e-discovery teachers on the topics you should be learning more about and how to get involved with educational e-discovery groups in 2017 with panelists Mary Mack, William Hamilton, Eric Mandel and George Socha. Presented by ACEDS, EDRM, Exterro and LTPI.  TIME 5:30 PM ET / 2:30 PM PT
  • eDiscovery 101 – An Alternate Career Path: Lighthouse eDiscovery will host a free educational webinar on eDiscovery Day 2016. Geared towards law students and others considering entering the ediscovery profession, this webinar will highlight how and when ediscovery fits into litigation, outline who the players are, and provide a glimpse into a day in the life of ediscovery work. Presented by Lighthouse Discovery.  TIME 6:00 PM ET / 3:00 PM PT

In addition, there will be in-person networking events in Dallas, Detroit, Houston, Jacksonville, Los Angeles, Orange County and New York.  Click on the appropriate link to register for the in-person event near you!

I’m excited to be presenting again with my colleagues at the “10 Years Forward and Back – Automation in eDiscovery” session – it was very well received at The Masters Conference in DC in October.  So, if you missed it then, you can catch it on E-Discovery Day!

So, what do you think?  Do you plan to attend an E-Discovery Day event?  Please share any comments you might have or if you’d like to know more about a particular topic.

*You thought I was going to say “Festivus”, didn’t you?

Speaking of Thanksgiving, eDiscovery Daily will return next Monday.  Happy Thanksgiving!

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.

The Fall Version of The eDiscovery Business Confidence Survey Has a Canadian Influence: eDiscovery Trends

With everything else we’ve been covering, we’ve been remiss to mention that it’s time for another round of the quarterly eDiscovery Business Confidence Survey created by Rob Robinson and conducted on his terrific Complex Discovery site.  The fall survey is currently going on through the end of November.  In addition to the affiliation with the Association of Certified eDiscovery Specialists (ACEDS), the survey now has a new Canadian influence.

As discussed last week on LegalTech News (What’s the Difference With E-Discovery in Canada? A Heavy ECA Focus, to Start, written by Zach Warren), Commonwealth Legal is now teaming with ComplexDiscovery and ACEDS for the survey, bringing a Canadian perspective to the formerly U.S.-exclusive results.

“While Canada is a smaller market north of the border, our cultural and jurisdictional differences contribute to the advancement of eDiscovery in distinct ways”, said Jennifer Johnson, Vice President of Commonwealth Legal. “This survey offers a unique opportunity for Canadian eDiscovery professionals to have their insight measured and heard.”

As before, the eDiscovery Business Confidence Survey is a non-scientific survey designed to provide insight into the business confidence level of individuals working in the eDiscovery ecosystem. The term ‘business’ represents the economic factors that impact the creation, delivery, and consumption of eDiscovery products and services.  The purpose of the survey is to provide a subjective baseline for understanding the trajectory of the business of eDiscovery through the eyes of industry professionals.

Also as before, the survey asks questions related to how you rate general business conditions for eDiscovery in your segment of the eDiscovery market, both current and six months from now, a general sense of where you think revenue and profits will be for your segment of the market in six months and which issue do you think will most impact the business of eDiscovery over the next six months, among other questions.  It’s a simple nine question survey that literally takes about a minute to complete.  Who hasn’t got a minute to provide useful information?

Individual answers are kept confidential, with the aggregate results to be published on the ACEDS website (News & Press), on the Complex Discovery blog, and on selected ACEDS Affiliate websites and blogs (we’re one of those and we’ll cover the results as we have for the first three surveys) upon completion of the response period, which concludes November 30.

The more respondents there are, the more useful the results will be!  What more do you need?  Click here to take the survey yourself.  Don’t forget!  Let’s set a record!

Additionally, you can join Mary Mack, George Socha, Eric Mandel, Zach Warren, David Horrigan on December 14 for a webinar to review the results of the survey.  Click here to register for the webinar.

So, what do you think?  Are you confident in the state of business within the eDiscovery industry?  Share your thoughts in the survey and, as always, please share any comments you might have with us or let us know 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.

Here’s an Independent Review of CloudNine: eDiscovery Trends

If you love to read about legal technology, you probably have signed up for newsletters via Technolawyer.  Technolawyer has several useful newsletters for the tech-interested legal professional, including BlogWorld and LitigationWorld.  Recently, CloudNine was reviewed by Technolawyer with the resulting review published in the LitigationWorld newsletter.

Jennifer Dixon conducted the review.  The review was completely independent and not sponsored by CloudNine (all we did was provide a brief overview to her before she proceeded to review the platform).  Here are a couple of observations from Jennifer’s review of the platform:

  • “During my litigation career, I spent hours of my time on the phone with technical support attempting to coordinate uploading, review, and production. In light of these experiences, I find the CloudNine self-service model incredibly refreshing. It puts power into the reviewer’s hands, enabling you to customize your screen views, metadata, filtering, and production. The analytics tools provide simple visualizations of document batch contents, reducing surprises and confusion down the road. All the review tools you need for a well-organized document review are present and easy to use. CloudNine handles all of the most common document types found in today’s discovery projects. Sorting through thousands of emails will be a breeze.”
  • “For small cases in particular, CloudNine enables you to do it all yourself, saving you time and money. For larger cases, CloudNine offers consulting services for collection and processing. CloudNine easily earns a TechnoScore of A-.”

Thanks to Technolawyer and to Jennifer for the review of our platform.  We really appreciate it!

If you want more information or to check out the review, you can do so on our site here.  Here’s your chance to learn more about CloudNine, from an independent source!

So, what do you think?  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.

Public Comment Period Extended for Commentary on Defense of Process: eDiscovery Best Practices

As we noted a couple of months ago, The Sedona Conference® Working Group on Electronic Document Retention and Production (WG1) has issued a Public Comment Version of a new Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process.  The deadline for public comment was to have ended a couple of days ago, on November 15.  Now, the deadline for public comment has been extended by the WG1 steering committee.

The new deadline for the public comment period for the Commentary is Monday, November 28.

As noted in the Preface, the Commentary “represents the culmination of five years of spirited dialogue within WG1 on a number of sensitive topics that go to the heart of what it means to be a competent advocate and officer of the court in an age of increasing technological complexity. It addresses the tension between the principle of party-controlled discovery, and the need for accountability in the discovery process, by establishing a series of reasonable expectations and by providing practical guidance to meet these competing interests. The overriding goal of the principles and guidelines set forth in this Commentary is to reduce the cost and burden typically associated with modern discovery by helping litigants prepare for – or better yet, avoid altogether – challenges to their chosen discovery processes, and by providing guidance to the courts in the (ideally) rare instances in which they are called upon to examine a party’s discovery conduct.”

The WG1 steering committee gave no reason for the extension in its email announcement.  Perhaps they are receiving a lot of comments, which shows that a lot of people have taken interest in the Commentary.  If so, that’s good.

As usual, the Commentary is free and you can download it here.  Questions and comments regarding the Commentary may be sent to comments@sedonaconference.org.

So, what do you think?  Will these new principles help organizations implement a sound eDiscovery process?  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.

Three Ways that eDiscovery is Safer in the Cloud: eDiscovery Trends

I missed this article when it was published a couple of weeks ago (and have actually presented in a CLE program with the author since), but it still seems timely to cover especially in light of our post on Monday regarding lawyers’ use of the cloud and their concerns about security…

In the article 3 Ways E-Discovery is Safer in the Cloud than On-Premise, David Greetham discusses how, often, cloud service providers have stronger security options than those at law firms.  He notes three reasons in particular as to why that is the case:

  1. Sophisticated encryption: The ability for providers to encrypt data at rest (i.e., in storage), in transit and intra-application (i.e., moving data from one application to another) is something that most firms don’t provide.  As David notes, this means that they not only protect sensitive business data, but also ensure compliance with HIPAA, HITEC and other regulations designed to protect personally identifiable information (PII).
  2. Security experts on staff: Cloud service providers employ a sizeable team of security experts which proactively monitor their cloud environment 24 hours a day, 365 days a year.
  3. First access to emerging technologies: The cloud is where emerging technologies will be implemented first, because that’s where more and more data is being stored and processed.

David states that “Many firms have the mistaken impression that their data is safest where they can ‘touch’ it and are hesitant to move it from on-premise to the cloud (which conjures up images of data freely floating through the air). Yet, law firms aren’t actually that confident about their own security. In the 2016 ILTA/Inside Legal Technology Purchasing Study, 67 percent identified security management as their top IT challenge. Meanwhile, professional cloud services providers are offering an alternative approach, in which they promote increased security services around e-discovery.”

From a business standpoint, the cloud model simply makes sense, both for providers and consumers.  Providers are able to provide state of the art security because multiple clients pay for it, which is the same reason that it also makes sense for consumers – the ability to afford a secure, state of the art infrastructure without having to foot the entire bill.  It amazes me that more lawyers aren’t open to the possibility of the cloud.

So, what do you think?  Do you think that cloud solutions are more secure than on-premise solutions?  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.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Defendant Sanctioned for Failing to Preserve Text Messages and Failing to Produce Native Format Data: eDiscovery Case Law

In First Financial Security, Inc. v. Freedom Equity Group, LLC, No. 15-1893 (N.D. Cal., Oct. 7, 2016), California Magistrate Judge Howard R. Lloyd issued permissive adverse inference instruction sanctions against the defendant for deleting relevant text messages “with the intent to deprive” the plaintiff of the use of those text messages and for failing to produce native-format data that it was repeatedly ordered to produce.  Judge Lloyd declined to sanction the defendant for spoliation of phone records or employment applications.

Case Background

In this case, the plaintiff sued the defendant for intentional interference with contract and related violations of California’s Unfair Competition Law (“UCL”), alleging the defendant induced approximately 1,400 sales contractors to leave the plaintiff and join the defendant “en masse”.  The parties filed a Discovery Dispute Joint Report after the defendant had “concededly” failed to produce requested discovery materials, including: (1) text messages possessed by defendant principals; (2) employment applications submitted by former plaintiff contractors; (3) native-format copies of digital data related to the circumstances in which the defendant hired the former plaintiff contractors; and (4) phone records. The court, based on the defendant’s conceded failure to comply with its discovery obligations and absent any substantive opposition, ordered the defendant to produce the discovery materials requested.

After the defendant still failed to produce all of the above, the plaintiff filed its sanctions motion.  The defendant conceded in its opposition brief that the texts “were deleted”, but argued that these texts were “innocently” deleted by people who did not understand their discovery obligations. The defendant also asserted: (1) the phone records were deleted by the phone company because those records “are kept only for a year”; (2) there is no native-format data to produce, because the data “is a data base” that can be reviewed through “a query”; and (3) the defendant never possessed any employment applications, because the information in any given employment application is digitally submitted directly to a “data base” and no application document is separately retained.

After oral arguments where the defendant conceded it produced a physical spreadsheet instead of producing native-format copies of the underlying data; the court ordered the defendant to produce, instead, the native-format data.  In response, the defendant issued a declaration stating that it did not have possession of the data because it relied upon third party software service providers to receive and store the data, that it has changed providers and the original provider had no obligation to turn over the data without a court order.

Judge’s Ruling

Judge Lloyd, ruling that the duty to preserve evidence arose no later than January of 2014 (when the defendant warned its employees that there would be a lawsuit), was “persuaded that FEG had an obligation to preserve text messages in the anticipation or conduct of litigation, that FEG took no reasonable steps to preserve text messages,…that those messages cannot be restored or replaced through additional discovery and that FEG’s agents acted with the intent to deprive FFS of the use of the deleted text messages.”

Also, noting that “[t]he court twice ordered FEG to produce the native-format data sought by FFS”, Judge Lloyd determined that “FEG has misled and prejudiced FFS in the course of FFS’s attempts to discover native-format copies of electronically stored data” relating to the case, further noting that the defendant had raised the claim that it lacks possession, custody, and control of the data “far too late.”

As a result of the deletion of text messages and the failure to produce the native-format data, Judge Lloyd issued permissive adverse inference instruction sanctions against the defendant, “because mandatory inferences are not necessary to remedy the prejudice FFS has suffered.”  Judge Lloyd declined to issue sanctions with respect to the phone records and the employment applications, failing to find intent to deprive for the former and finding that actual documents were not created in the latter.

So, what do you think?  Was a permissive adverse inference instruction a severe enough sanction?  Please share any comments you might have or if you’d like to know more about a particular topic.

If you’re in Houston, don’t forget that tonight is “Drinks with Doug” at The Tasting Room – CityCentre.  Click here to find out how to RSVP.  Hope to see you there!

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.

Do Lawyers Actually Realize When They’re Using the Cloud?: eDiscovery Trends

In his LawSites blog last week, Bob Ambrogi reported on results from the 2016 Legal Technology Survey Report by the American Bar Association’s Legal Technology Resource Center.  One of the more notable statistics from the report is that just 38 percent of lawyers use cloud computing for law-related tasks.  But, is that really true?

In the report, 53 percent of lawyers say they have not used cloud computing and 10 percent do not know whether they have or not, according to the survey, which the LTRC conducts annually.

Bob goes on to report that of the lawyers who say they do not use cloud computing, 7 percent say they plan to use the cloud within the next 12 months, 3 percent say they plan to within the next two years, 17 percent say they will use it “sometime in future,” and 42 percent say they do not plan ever to use it.

When lawyers who do not use the cloud were asked why, the top reason they gave was “Confidentiality/security concerns at 63 percent.”  But, in-house solutions may not necessarily be more secure. Earlier this year, I covered an article by Daniel Garrie and Yoav M. Griver of Zeichner, Ellman & Krause, who made several observations, including this one:

“Almost every e-discovery platform in the marketplace today requires some sort of connectivity to the Internet to obtain software updates, be it for the platform or the solution operating the platform. Consequently, law firms that elect to avoid cloud-driven solutions with the intention of offering clients greater security may not actually be providing greater security. Odds are that your security isn’t bulletproof, you don’t have 100 percent systems uptime, and you may not have the necessary amount of staff resources dedicated to IT management.”

Anyway, back to the idea of lawyers not using the cloud.  Are that many really not using the cloud?

Bob raised doubts about that himself a couple of days later, referencing a 2012 Citrix survey on cloud computing in which 54 percent of Americans claimed never to have used cloud computing, when, in fact, 95 percent actually did use it – for things such as banking and shopping online, social networking and file sharing.  And, that was four years ago.

So, do lawyers actually realize when they’re using the cloud?  In some cases, maybe not.  And, if they don’t know when they’re using it, do they really understand its benefits?

So, what do you think?  Do you think that most attorneys have used the cloud for law-related tasks?  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.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Orders Forensic Examination of Key Custodian Computers: eDiscovery Case Law

In Davis v. Crescent Electric Company et. al., No. 12-5008 (D. S.D., Oct. 12, 2016), South Dakota District Judge Lawrence L. Piersol ruled that a non-disclosure agreement would sufficiently protect any and all confidential and/or privileged information of the defendant that may be uncovered during the forensic examination for key custodians and that the information being requested by the plaintiff was relevant and not overly broad.

Case Background

In this employment discrimination case, the plaintiff filed a Motion to Compel the defendant (her former employer) in August 2015 to produce Outlook PST files from the defendant’s server, from the plaintiff’s work computer and from the defendant’s Outlook archives to learn “how Julie Skinner/Stienstra had access to Lisa A. Davis’ email in order to print them.”  The court granted the motion in April 2016, and in August 2016, the plaintiff requested that the defendant provide access to the key custodians’ computers for a forensic examination.  The defendant refused, citing concerns that “unfettered investigation” on the computers “may provide access to confidential information and privileged communications, and it is beyond the scope of the Court’s Order and the relief requested.”  That same day, counsel for the plaintiff suggested having the forensic examiner execute a non-disclosure agreement and further requested that the defendant’s internet technician contact the forensic examiner as soon as possible “so this matter can be resolved without further court intervention.”

The defendant’s technician provided only of the email data requested, indicating that was the only data he was told to provide and that any other email data would have to be requested from counsel. The plaintiff’s counsel did just that, but the defendant’s counsel refused, reiterating the position that the information was beyond the scope of the order and the data may contain confidential and privileged information. As a result, the plaintiff filed a supplemental Motion to Compel.

Judge’s Ruling

Referencing Rule 37(a)(3)(B)(iv), Judge Piersol noted that, ultimately “[c]ourts consider the prior efforts of the parties to resolve the dispute, the relevance of the information sought, and the limits imposed by Rule 26(b)(2)(C) when deciding whether to grant a motion to compel.”  With regard to the plaintiff’s counsel effort to resolve the issue by offering to have the forensic examiner sign a non-disclosure agreement and the defense counsel’s refusal of that offer, Judge Piersol stated:

“First, CESCO does not explain how or why a non-disclosure agreement would not quell its fears of disclosure of confidential and/or privileged information. CESCO simply makes general claims concerning the disclosure of such information. Second, the computer that Davis seeks to examine is a business computer that is unlikely to contain any personal information. Therefore, without more of an explanation by CESCO as to what it seeks to protect and why it seeks to protect it, the Court finds that a non-disclosure agreement executed by Mr. Sevel will sufficiently protect any and all confidential and/or privileged information that may be uncovered during the forensic examination of Julie Stienstra/Julie Skinner’s computer and associated export logs.”

With regard to the relevance of the information sought, Judge Piersol noted that the plaintiff sought a forensic examination to determine the authenticity of a claimed fake email and that the plaintiff’s forensic examiner stated that “printed versions of emails, or email threads, cannot be considered to be forensically sound unless the original digital version can be examined for authenticity. In this situation, a review of the PST file containing the original emails and emails threads, with their associated metadata, is needed”.  Finding also that the defendant’s claim that the plaintiff’s request was overly broad to be “without merit”, Judge Piersol granted the plaintiff’s Supplemental Motion for an Order to Compel with the plaintiff’s forensic examiner to execute a non-disclosure agreement prior to his examination.

So, what do you think?  Should the forensic examination have been ordered?  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.

According To This New Report, eDiscovery Market Expected to Nearly Triple in Five Years: eDiscovery Trends

According to a new market research report, the eDiscovery market is estimated to grow from $7.89 Billion (US) in 2016 to $22.62 Billion by 2021, at a Compound Annual Growth Rate (CAGR) of 23.4% from 2016 to 2021.

The report titled E-Discovery Market by Solution (Legal Hold, Early Case Assessment, Data Processing, Data Production), Service (Consulting, Implementation, Training & Support, Managed), Deployment Type (Cloud, On-premises), and Vertical – Global Forecast to 2021 is published by MarketsandMarkets (who apparently did not have a title size limit when determining the report title).

Here are a couple of notable trends in the report over the forecast period with respect to TAR and cloud adoption:

  • TAR Adoption: Technology assisted review and data production is expected to show significant adoption rate in the E-Discovery Market. Technology assisted review and data production is “gaining traction among E-Discovery solutions as these solutions empower organizations by reducing risk and saving the time and money spent on managing & reviewing large sets of documents effectively and efficiently”.
  • Managed Services Growth: The managed services segment is expected to witness the fastest CAGR during the forecast period from 2016 to 2021, owing to organizations’ focus on decreasing costs associated with E-Discovery document storage infrastructure maintenance. With the help of managed services, users become free from establishing and maintaining infrastructure, uncertainty over compliance adherence, and developing scalable and capable technologies for E-Discovery use, owing to which, this service type has the highest adoption rate.
  • Cloud Deployment: The cloud deployment type is expected to grow at the highest CAGR during the forecast period; the cloud deployment type is also projected to witness the highest demand due to increased cost reduction as compared to on-premises solution deployment, as cloud E-Discovery solutions help customers to maintain a conservative legal department budget by slashing costs associated with data storage infrastructure maintenance.

As noted in the report description, the ecosystem of the E-Discovery market consists of on-premises solution providers such as IBM Corporation, FTI Technology LLC, kCura LLC, and ZyLAB; cloud solution providers such as cicayda,LLC, CloudNine, Logikcull, and Lexbe; and service providers such as Ernst & Young Global Limited, Advanced Discovery, D4 LLC, and Navigant Consulting, Inc. Stakeholders of the market include litigation service providers, legal analytics vendors & consultants, and law firms.

Click on this link here for more information about the report, including pricing and how to buy a single-user or corporate license.

So, what do you think?  Are you feeling “bullish” about the eDiscovery market?  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.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Defendant Not Required to Use Predictive Coding by Court: eDiscovery Case Law

Regardless how the election turned out last night, eDiscovery case law marches on…

In the case In re Viagra Products Liability Litigation, 16-02691 (N.D. Cali., Oct. 14, 2016), California Magistrate Judge Sallie Kim, noting that other courts had declined to force a party to use predictive coding, denied the plaintiff’s motion to force the defendant to use predictive coding instead of its preferred approach using search terms.

Case Background

In this multi-district litigation (MDL) against drug company Pfizer regarding its highly popular drug Viagra and alleged correlations to incidences of melanoma, the plaintiffs urged the Court to order the defendant to use predictive coding with the plaintiffs’ input to identify the locations of relevant information and the responsive ESI from those locations. The plaintiffs argued that TAR and/or predictive coding is a more sophisticated tool than the traditional search term or search query approach, that using that suggested approach would save time and money for both sides and indicated that they wanted representatives from both parties to participate in process of creating and working with the search process in this iterative process.

The defendant offered stiff opposition to the plaintiff’s request (sorry, I couldn’t resist) proposing instead that it use search terms to identify potentially relevant documents. The defendant described its preferred methodology as an iterative process – though not the same iterative process as TAR and/or predictive coding – where the defendant tests search terms and validates them using rigorous sampling of potentially responsive documents, verifying that the search terms yield high rates of response. In the defendant’s proposed process, the parties would exchange lists of proposed search terms and the defendant would agree to run any search terms that appeared on both parties’ lists.

The defendant pointed out that the plaintiffs did not cite to any case law in support of their proposal to require the defendant, over its objection, to use TAR and/or predictive coding. At the hearing on the matter, the plaintiffs conceded that no court has ordered a party to engage in TAR and/or predictive coding over the objection of the party.

Judge’s Ruling

Adding to the plaintiff’s concession, Judge Kim noted that “[t]he few courts that have considered this issue have all declined to compel predictive coding”.  Judge Kim cited Hyles v. New York City, stating:

“As the court reasoned in Hyles, the responding party is the one best situated to decide how to search for and produce ESI responsive to discovery requests.  The responding party ‘can use the search method of its choice. If [the propounding party] later demonstrates deficiencies in the . . . production, the [responding party] may have to re-do its search. But that is not a basis for Court intervention at this stage of the case…[I]t is not up to the Court, or the requesting party . . ., to force the . . . responding party to use TAR when it prefers to use keyword searching. While [the propounding party] may well be correct that production using keywords may not be as complete as it would be if TAR were used . . ., the standard is not perfection, or using the ‘best’ tool . . ., but whether the search results are reasonable and proportional.”

In denying the plaintiffs’ motion, Judge Kim concluded: “The Court finds Hyles well-reasoned. Even if predictive coding were a more efficient and better method, which Pfizer disputes, it is not clear on what basis the Court could compel Pfizer to use a particular form of ESI, especially in the absence of any evidence that Pfizer’s preferred method would produce, or has produced, insufficient discovery responses.”

So, what do you think?  Should a court ever require a party to use a particular method to search for and produce ESI?  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.