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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.

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.

How SaaS Automation Has Revolutionized eDiscovery for Solo and Small Firms: eDiscovery Trends

I’m in Austin today, speaking at the Texas Bar CLE program eDiscovery in Your Case.  I’m excited to be included in the program, participating in the luncheon presentation eDiscovery Software for Solo and Small Firms with Kathy Owen Brown of DLA Piper and Gene Albert of Lexbe!

As a precursor to the session, the Texas Bar asked that we write an article for the session (and by “asked”, I mean that they told us that articles are mandatory for each session) and they suggested that the article be 10-30 pages in length.  So, because I don’t write enough (apparently), I accepted the challenge and wrote an article titled How SaaS Automation Has Revolutionized eDiscovery for Solo and Small Firms to tie in (nicely, I hope) with the session we’re presenting.

The article covers how we’re in the age of automation and cloud based discovery, how eDiscovery technology has evolved, takes a comparative look at Craig Ball’s small firm Edna challenge of 2009 and his reprise from earlier this year and how the emergence of cloud-based automation has given small firms much more complete solution choices than were available in 2009.  It also covers key components of a SaaS automation solution and typical pricing options for such a solution.  The end result is better options than ever before for solo and small firms looking for a full-featured eDiscovery solution that fits with their budget.

The 15 page article (right in the middle of the suggested range – no need to show off, right?) will be provided to the attendees of today’s CLE, but if you would like to check it out, feel free to contact me and request a copy.  Simply send an email to me at daustin@cloudnine.com and say that you’d like a copy of the SaaS automation article that I wrote for the Texas Bar (or words to that effect) and I’ll be happy to send you a copy!  Enjoy!

So, what do you think?  Do you think that solo and small firms have better choices for eDiscovery solutions than before?  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.

It Took a While, But the Sedona Conference Has Finalized its Guide for “Possession, Custody, or Control” of ESI: eDiscovery Best Practices

A year ago in April (i.e. April 2015), The Sedona Conference® released a new public comment version of a guide designed to provide guidance to defining the phrase “possession, custody, or control” as it’s used in Federal Rules 34 and 45 (we covered it here).  Earlier this month, the final version of that guide was released.

As we noted then, Rule 34(a) and Rule 45(a) obligate a party responding to a document request or subpoena to produce “documents, electronically stored information, and tangible things” in that party’s possession, custody, or control.  But, the Rules are silent on what the phrase “possession, custody, or control” means and case law is inconsistent (across circuits and even within circuits at times).  And, determining whether ESI should be considered to be in a responding party’s “possession, custody, or control” has become more complex, with the growing popularity of technologies and trends such as social media and cloud computing.

So, The Sedona Conference Commentary on Rule 34 and Rule 45 Possession, Custody, or Control was created to provide practical, uniform and defensible guidelines regarding when a responding party should be deemed to have “possession, custody, or control” of documents and all forms of electronically stored information (ESI) subject to Rule 34 and Rule 45 requests for production.  A secondary purpose of the Commentary is to advocate abolishing use of the common-law “practical ability test” for purposes of determining Rule 34 and Rule 45 “control” of ESI, which has led to “inequitable” situations in which courts have held that a party has Rule 34 “control” of Documents and ESI even though the party did not have the actual ability to obtain the Documents and ESI.

The final 103 page PDF guide includes the following actual principles (minimally changed from the public comment version).  They are:

  • Principle 1: A responding party will be deemed to be in Rule 34 or Rule 45 “possession, custody, or control” of Documents and ESI when that party has actual possession or the legal right to obtain and produce the Documents and ESI on demand.
  • Principle 2: The party opposing the preservation or production of specifically requested Documents and ESI claimed to be outside its control, generally bears the burden of proving that it does not have actual possession or the legal right to obtain the requested Documents and ESI.
  • Principle 3(a): When a challenge is raised about whether a responding party has Rule 34 or Rule 45 “possession, custody, or control” over Documents and ESI, the Court should apply modified “business judgment rule” factors that, if met, would allow certain, rebuttable presumptions in favor of the responding party.
  • Principle 3(b): In order to overcome the presumptions of the modified business judgment rule, the requesting party bears the burden to show that the responding party’s decisions concerning the location, format, media, hosting, and access to Documents and ESI lacked a good faith basis and were not reasonably related to the responding party’s legitimate business interests.
  • Principle 4: Rule 34 and Rule 45 notions of “possession, custody, or control” should never be construed to override conflicting state or federal privacy or other statutory obligations, including foreign data protection laws.
  • Principle 5: If a party responding to a specifically tailored request for Documents or ESI (either prior to or during litigation), does not have actual possession or the legal right to obtain the Documents or ESI that are specifically requested by their adversary because they are in the “possession, custody, or control” of a third party, it should, in a reasonably timely manner, so notify the requesting party to enable the requesting party to obtain the Documents or ESI from the third party. If the responding party so notifies the requesting party, absent extraordinary circumstances, the responding party should not be sanctioned or otherwise held liable for the third party’s failure to preserve the Documents or ESI.

One change from the public comment version was to replace the word “trump” with “override”.  Hmmm, wonder why?  :o)

The remainder of the guide covers 1) the background that led to the new principles, including inconsistent interpretations of “possession, custody, or control” within the Rules, a deeper look at the “practical ability test” and effect of new technologies on the analysis and 2) a detailed look at each of the new principles with commentary.  They dropped the Appendix with case law where “possession, custody, or control” was at issue.

As usual, the Commentary is free and you can download it (both the Final and the Public Comment versions) here.

So, what do you think?  Will these new principles lead to a consistent application of “possession, custody, or control” within the courts?  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.

Here’s an Interesting Interview Conducted Using a Cool Conversation Tool: eDiscovery Trends

If you regularly read sites that discuss legal technology and other important issues for the legal profession, you’re certainly familiar with the site Above the Law, which takes a behind the scenes look at the world of law and covers it on several levels, including big law, small firms, law schools, finance, CLE and, of course, eDiscovery.  Regarding eDiscovery, their latest interview gives you an opportunity to learn more about our company, CloudNine.

In Simplicity And eDiscovery? A Conversation With CloudNine’s Brad Jenkins, written by Zach Abramowitz, our CEO and co-founder discusses the evolution of our company (we’ve been around probably longer than you realize – over 13 years), the challenges of competing in a crowded eDiscovery market and, especially, the challenges of competing in that market without the benefit of outside funding from an investor or venture capital firm.  Brad also discusses our value proposition and how our approach to security is different from other SaaS eDiscovery automation providers in the market, among other things.  If you want to learn more about us as a company, this is a good opportunity to hear it from the guy (well, one of two guys) who started it all.

Another notable aspect of the interview is how it has been (and still might be being) conducted.  Abramowitz is using a mechanism called ReplyAll, which enables you to invite other writers or interesting guests to your site for interviews, roundtables, stories and debates.  So, it’s really a mechanism that facilitates conversations online.  Having commented on a couple of conversations started via ReplyAll, it’s a great way to manage discussions with a limited or (conceivably) unlimited number of participants.

When I mentioned that the interview still might be being conducted, that’s conceivably possible.  When the interview “began” on Tuesday’s article, Abramowitz had asked Brad a few questions, to which he responded.  If you checked yesterday morning, there was another question out there and, later in the day, another response from Brad.  So, the interview may still be going on as we speak!  :o)

So, what do you think?  Have you participated in an online discussion using ReplyAll?  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.

Less Than Half of Cloud Users Have a Proactive Approach to Security: eDiscovery Trends

How many blog posts in a row can start with the phrase “less than half”?  At least two… :o)

We’ve covered the growth of cloud adoption several times, especially in eDiscovery, including here and here.  However, according to a new survey from Ponemon, organizations apparently aren’t adopting appropriate governance and security measures to protect sensitive data in the cloud.

In the article Ponemon: Cloud Adoption Grows as Security Lags (written by Tara Seals), 73% of respondents to the survey indicated that cloud-based services and platforms are important to their organization’s operations, and 81% of respondents said they will be more so over the next two years.  Not only that, but 36% of respondents said their companies’ total IT and data processing needs were met using cloud resources today and that number is expected to rise to 45% over the next two years!

Unfortunately, 54% of the respondents said their companies do not have a proactive approach to managing security and complying with privacy and data protection regulations in cloud environments, indicating that their organizations are not careful about sharing sensitive information in the cloud with third parties such as business partners, contractors and vendors.  Challenges identified by survey respondents include:

  • Difficulty in controlling or restricting end-user access, which increased from 48% in 2014 to 53% of respondents in 2016;
  • Inability to apply conventional information security in cloud environments (70% of respondents);
  • Inability to directly inspect cloud providers for security compliance (69% of respondents);
  • Shadow IT is also a problem – nearly half (49%) of cloud services are deployed by departments other than corporate IT and an average of 47% of corporate data stored in cloud environments is not managed or controlled by the IT department.

“Cloud security continues to be a challenge for companies, especially in dealing with the complexity of privacy and data protection regulations,” said Larry Ponemon, chairman and founder, Ponemon Institute.

At least there is intent: 65% of respondents said their organizations are committed to protecting confidential or sensitive information in the cloud.

This isn’t the first study we’ve covered by the Ponemon Institute – click here and here for others.  Go Ponemon Go! (see what I did there?)… :o)

By the way, not all cloud solutions are created equal when it comes to security.  Here’s how we do it.

So, what do you think?  How does your organization handle security for cloud based 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.

The Cloud is a “Rush” Project’s Best Friend: eDiscovery Best Practices

Today is Friday.  While many of you can look forward to a long, enjoyable Memorial Day weekend, chances are that at least a few of you will be making weekend plans when, late in the day, you will receive a CD, DVD, hard drive or link to data on a server somewhere that needs to be reviewed over the weekend.  There goes your weekend!

Not only that, good luck connecting with your in-house litigation support person or a vendor for assistance late on a Friday – you may play a game of “phone tag” or wait for email responses for a bit.  Lit support people and vendors have weekend plans too.  Even if you do get in touch with them, you then have to fill out a form and arrange to get the data to them, which can be tricky.  It’s a lot of time, hassle and cost to get started – especially if you’re at a small law firm that doesn’t already have an eDiscovery software application to support processing and review of the data.

When consumers quickly need to find that special item to buy, or that new cool song to download, or need to stream the new season of Bloodline (available starting today on Netflix) for binge watching, they turn to the cloud.  More than ever, attorneys are turning to the cloud as well to help them get their “rush” project started immediately.  And, you don’t even have to own the software or interact with anyone to get started.

As an eDiscovery provider that offers a no-risk free trial, CloudNine (shameless plug warning!) sees at least one or two clients a week that give our software a try (many of them with “rush” projects just like this).  The trend toward automation and the cloud in the industry has not only made eDiscovery more affordable than ever, it has also made it easier than ever to get a “rush” project off and running.

If you find yourself in that situation later today, here are three easy steps to get started:

  1. Sign up for a free account here. You will receive an email with your credentials (including temporary password), to get started.
  2. When you first log in, you’ll see a button to “Upload Data”. That will take you to a form to download the CloudNine Discovery client (which is a Windows based client application that resides on your desktop) for uploading data for processing.  Download and install the client to upload data.
  3. Once the client is downloaded and installed, launch the client, log in with your newly created credentials and simply follow the wizard prompts to upload the desired data set and put it into the project of your choice (which you can create if it doesn’t already exist). It’s that easy!

We can’t get you out of working this weekend.  But, we can take the hassle out of getting started.  You’re welcome.  :o)

So, what do you think?  Have you been faced with any “rush” eDiscovery projects lately?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will return on Tuesday as we remember this Memorial Day the people who gave their lives while serving in our armed forces.

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 Survey Shows Biggest Concerns of Legal Professionals Regarding Cloud and Shadow IT: eDiscovery Trends

A big topic during LegalTech New York (LTNY) last month were the issues and concerns associated with information governance (IG) as it applies to the use of “Shadow IT” applications, including those that are cloud-based.  A new survey, actually conducted during LTNY, was released earlier this week that sheds light on those concerns of legal technology professionals.

According to the survey conducted by Consilio and announced this week, the pervasive use of cloud-based applications in the workplace is creating challenges for companies to effectively manage the potential data security risks of Shadow IT.  A total of 148 responses were collected from law firms (54.73% of respondents), in-house legal departments (27.03%) and government-affiliated entities (18.24%) in attendance.  Here are some notable findings:

  • Biggest Perceived Risks of Cloud-Based Applications: When asked what they thought were the biggest risks of cloud-based applications, 64% of respondents cited inadvertent disclosure of sensitive data as the biggest risk of using cloud-based applications, followed by theft of intellectual property (39%), regulatory compliance failures (26%), inability to adequately identify relevant data for eDiscovery (25%), service outage (21%) and inadequate application of document retention (16%).
  • Concern about Potential Security: When asked how concerned they were with the potential security risk of cloud-based applications, 31.7% of respondents indicated that they were concerned, followed by very concerned (29.7%), moderately concerned (21.6%), slightly concerned (14.8%) and not at all concerned (2.0%).
  • Over Half of Respondents Usually Have Cloud-Based Data to Consider Collecting: 54.7% of respondents often or almost always use cloud-based applications to store company data affiliated with legal and investigatory matters on a regular basis.
  • Majority of Respondents See Cloud Migration as Important to IG: More than two-thirds (67%) of respondents regard the migration of company data to the cloud as important or very important to an organization’s information governance program.

It’s also worth noting that over a quarter (26.9%) of respondents reported that their organization rarely or never actively addresses security risks associated with Shadow IT, which is hardware or software used within an enterprise that is not supported or administrated by the organization’s IT department.  Almost half of legal technology professionals (45.2%) cited that their organization addresses these risks sometimes, while only a quarter (25.6%) committed to this process very often.

“The survey confirmed what we have already seen anecdotally for the last few years; many organizations are enabling Shadow IT to enter their daily business operations without enough concern about the risks of these platforms,” said John Loveland, managing director, Consilio. “If an organization is faced with litigation in the future, this cavalier approach can make eDiscovery exponentially more complicated and expensive, during a time when efficiency and accuracy are paramount.”

A copy of the infographic containing key findings from the survey can be found here.

So, what do you think?  How does your organization handle the use of “Shadow IT” applications?  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.

Brad Jenkins of CloudNine: eDiscovery Trends

This is the first of the 2016 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year to get their observations regarding trends at the show and generally within the eDiscovery industry.  Unlike previous years, some of the questions posed to each thought leader were tailored to their position in the industry, so we have dispensed with the standard questions we normally ask all thought leaders.

Today’s thought leader is Brad Jenkins of CloudNine™.  Brad has over 20 years of experience as an entrepreneur, as well as 15 years leading customer focused companies in the litigation technology arena. Brad also has authored several articles on document management and litigation support issues, and has appeared as a speaker before national audiences on document management practices and solutions.  He’s also my boss!  :o)

What are your general observations about LTNY this year and how it compared to other LTNY shows that you have attended?

Again this year, LTNY seemed reasonably well attended.  Thankfully, we didn’t have the weather and travel issues that we had the past few years, so that probably helped boost attendance.  And, the Hilton Lobby Lounge was back this year, so that provided an additional location to meet, though most of our meetings were in our suite.  Though I was really busy and didn’t get much chance to attend sessions, I understand that they were very good as always.  I did notice a drop in the number of exhibitors again this year and the exhibit hall did seem to be less crowded.  One colleague of mine who exhibited indicated that the number of leads he received at the show dropped about 30 percent from last year, so that’s consistent with my own observations and those of my colleagues.

For me, LTNY has become as much about the meetings with colleagues and business partners as it is about the show itself.  CloudNine had meetings practically booked throughout the show, with various people including industry analysts, partners and potential partners and clients and prospects.  Because it is the biggest show of the year, most people in the industry attend, so it’s an ideal opportunity to meet face to face and move business relationships along further.  Sometimes, there is just no substitute for in-person meetings to further business relationships and to communicate your message to other business colleagues.

What about general industry trends?  Are there any notable trends that you’ve observed?

Certainly one trend that I have noticed, as others have certainly noticed, is the accelerated consolidation within our industry within the provider community and the growth of investment of outside venture capital firms in our industry.  Just in the past couple of months, we have seen Huron Legal acquired by Consilio (which received a major investment from Shamrock Capital Advisors a few months before that), Millnet acquired by Advanced Discovery, Orange Legal acquired by Xact Data Discovery and Kiersted Systems acquired by OmniVere.  Rob Robinson does a terrific job of tracking mergers, acquisitions and investments in our industry and, according to his list, there have been eleven significant acquisitions and investments in just the past three months!

Another noticeable trend in the industry is the clear trend toward automation within eDiscovery.  You wrote about it earlier this year and, like you, I believe that the age of automation is here.  Some have dismissed the term “automation” as a marketing term, but I can’t think of a better term to describe the transformation of tasks that used to require a high degree of manual intervention and supervision to a point where little, if any, human involvement is necessary.  We’ve seen it for years through automation of review with technology assisted review techniques such as clustering and predictive coding and we have begun to see use of some artificial intelligence techniques on the information governance side.  Now, we are seeing automation of the processing of data to get it into a review platform and cloud-based providers (including CloudNine) automating that process.

Having been in the legal technology industry for many years, I have really seen an evolution of technology offerings in the marketplace.  At the beginning, I saw applications that were originally developed for other purposes being adapted for eDiscovery and those solutions were incomplete.  As the market developed, there started to be applications that were specifically designed for eDiscovery and those solutions were an improvement, but they were designed for isolated processes, such as collection or processing or review, with no automation of tasks.  The next generation of solutions were designed for eDiscovery and designed for task integration, but still adapted for task automation – some of those are the most popular solutions in the market today.  The new solutions – the “fourth generation” technology offerings are not only designed for eDiscovery and designed for task integration, they’re designed for task automation as well.

Many people say that if you want to tell where an industry is heading, follow the money.  In the past several months, you’ve seen providers like Logikcull and Everlaw that emphasize automation receive significant capital investments and, just before LTNY, you saw Thomson Reuters announce a new platform where automated processing is a key component.  It’s clear that big money is being invested in the growing automation sector of the industry.  You can get on the bus, or you can get run over by the bus.  As a provider that has been committed to simplified eDiscovery automation for several years now, CloudNine is on the bus and we feel that we have an excellent “seat” on that bus and are well positioned to help usher eDiscovery into the automation age.

What are you working on that you’d like our readers to know about?

Well, since I was just talking about fourth generation technology solutions, it seems appropriate to discuss how CloudNine has gotten to the point where we are in that evolution.  About 3 1/2 years ago at CloudNine, we looked at our legacy platform that had been in place since the early 2000s and was on version 14.  Our clients were happy with the platform overall, but we realized that if we were going to stay competitive as the market evolved, our legacy platform wasn’t going to be able to support those future needs.  So, we made the decision to almost completely start from scratch and re-develop our platform from the ground up, using the latest technology with an eye toward a truly simplified eDiscovery automation approach.  The platform that you see today via the user interface is just the tip of the iceberg of the overall solution – behind it is a series of workflows to accomplish various tasks.  For example, there are 34 distinct workflows (our CTO and co-founder Bill David calls them “cascading buckets“ that enable the workflows to scale) just in our Discovery Client application that enables clients to upload and process data into our CloudNine review platform.  This modularized approach of putting together re-usable workflows enables us to both scale and adapt as needed to meet changing client needs and positions us well for the future.

We feel that CloudNine is the leader in simplifying eDiscovery automation.  We do this through what we call the 4 S’s: Speed, Simplicity, Security and Services.  Clients, even brand new clients, can be up and running in five minutes (Speed) through their ability to sign up for their own account and upload and process their own data.  We recently had a brand new client who signed up for an account, uploaded and processed 27 GB of Outlook PST files (which amounted to over 300,000 emails and attachments) and culled out nearly two-thirds of the collection via HASH deduplication and irrelevant domain culling – all within 24 hours without ever having to speak to a CloudNine representative!  The ease of use (Simplicity) of the platform through the wizard-based client application for uploading data and a browser independent review module enables our clients to get up to speed with no more than an hour (or less) of training required.

Our approach to Security is unique as well – we operate within a protected cloud, not a public cloud, where the clients know that their data will be located on our servers in a Tier IV data center that is located 5 minutes from our offices.  This data center hosts data for nine of the top Fortune 20 corporations and was instrumental in us being selected over a year ago by a Fortune 150 corporation to host their data.  Finally, what makes us unique are the Services that we provide to support the software and automation – in addition to the software that we provide to help automate the eDiscovery process, we also provide managed services ranging from forensic collection to data conversion to technical advice and eDiscovery best practices and managed document review.  This enables our clients to rely on one provider for all of their services needs – as opposed to software-only providers that would have to outsource those services to a third party.

We believe that the combination of Speed, Simplicity, Security and Services enables CloudNine to provide the simplified eDiscovery automation approach that our clients want.  It’s an exciting time in our industry and CloudNine is excited to be forefront in its continued evolution, as we have been for the last 13 years!

Thanks, Brad, for participating in the interview!

And to the readers, as always, 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.

Motion to Compel Denied for Employees’ Personal Emails, Granted for Third Party Hosted Data: eDiscovery Case Law

In Matthew Enterprise, Inc. v. Chrysler Group, LLC, No. 13-cv-04236-BLF (N.D. Cal. Dec. 10, 2015), California Magistrate Judge Paul S. Grewal denied the defendant’s motion to compel production from personal email accounts of the plaintiff’s employees because the plaintiff did not have legal control of the emails.  However, he granted the defendant’s motion to compel production from the plaintiff’s customer communications database operated by a third party vendor, noting that the plaintiff did have control of that data, having already produced data from this source.

Case Background

In this price discrimination dispute between an auto manufacturer and its dealer, the defendant moved to compel the plaintiff to produce emails from the personal accounts of the plaintiff employees (because the plaintiff did not furnish all its employees with email accounts, many of them used their personal accounts for business purposes) and from the plaintiff’s customer communications database.  The plaintiff argued that the employee email accounts were outside its “possession, custody, or control,” so they were beyond the scope of party discovery. Similarly, because an outside vendor maintained and operated the plaintiff’s customer communications database, the plaintiff contended that those communications were also not discoverable. The defendant responded that the plaintiff still has control over its company information, whether it is stored in personal email accounts or in a vendor’s database.

Judge’s Ruling

With regard to the employees’ emails, Judge Grewal ruled:

“Chrysler has not carried this burden for the emails in personal accounts. Chrysler points to a Stevens Creek employee handbook that instructs employees to keep ‘internal information’ in the ‘sole possession’ of Stevens Creek, but this is not a contract and so does not create a legal right for Stevens Creek to take back any such information now stored in personal accounts.   And as Stevens Creek pointed out at the hearing on this motion, even if the court were to order that Stevens Creek collect emails from its employees’ personal accounts, Chrysler has not identified any authority under which Stevens Creek could force employees to turn them over. The Ninth Circuit has recognized that ‘[o]rdering a party to produce documents that it does not have the legal right to obtain will oftentimes be futile, precisely because the party has no certain way of getting those documents.’  That is the case here.  The motion to compel production from employees’ personal email accounts is DENIED.”

As for the customer communications database, Judge Grewal had a different ruling:

“The AVV database is different.  Although the contract that governs Stevens Creek’s relationship with AVV is not before the court, Stevens Creek clearly has access to information from the AVV database that Stevens Creek pays AVV to maintain.  In fact, Stevens Creek already did ‘go to AVV and ask them to do a special production generation’ of certain data, but the data produced was not from the relevant time period. Furthermore, days before the hearing on this motion – and weeks after the motion was filed – Stevens Creek asked AVV to produce the information that Chrysler seeks here. Stevens Creek argues that Chrysler should have to subpoena information from AVV directly, but the burden of a non-party subpoena is unnecessary when the information sought lies within Stevens Creek’s legal control. Chrysler’s motion with respect to the documents in the AVV database is GRANTED.”

So, what do you think?  Should an organization have legal control of the emails related to their business that are maintained in an employee’s personal email account?  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.