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Government Ordered to Maintain Expensive Custom Database Shared with Criminal Defendant – eDiscovery Case Law
 

In the criminal case of United States v. Shabudin, No. 11-cr-00664-JSW-1 (NJV) (N.D. Cal. Apr. 8, 2014), California Magistrate Judge Nandor J. Vadas ordered the Government to continue to provide access to a Relativity Database used by the parties to review documents produced by the Government, instead of discontinuing access for the defendants several weeks before trial was to begin due to budgetary issues.

The Government had voluntarily created the database to manage the vast quantities of documents being produced for discovery in this action, “because it was in its interest to do so”. An agreement had been negotiated between the parties that would allow the defendants to access the database and review discovery documents, and to employ third-party “project managers” for technical and substantive support.  Although the parties stipulated that the database has been “completed” in January of 2013, after more than 9 million documents had been uploaded, the defendants did not gain access until February of 2014.

At some point after beginning to work with the database, the defendants came to realize that not all of the documents produced in the action had been uploaded. Specifically, absent from the database were the contents of three hard drives, and 159 boxes of hard copy material amounting to nearly 1 million pages of documents. Defendants filed a motion to compel the Government to add the missing documents to the database, but, during a hearing on the motion to compel, the Government voluntarily offered to upload 2 of the 3 hard drives, and scan the hard copy materials into the database, asking that they not be ordered to do so.

Following this commitment, the Government indicated for the first time during the proceedings that “the ‘extra cost’ associated with this ‘voluntary’ commitment would draw down on the $1.8 million budget that had been allocated to Database, and ‘for this reason, we anticipate funding for the Database will end” four months from that point. Further, the Government stated that they had looked into “new – and more expensive – alternatives,” namely that they would expend resources to have the materials uploaded to the database within 2 months, and that the defendants would have 2 months to access and review the “old” documents plus the new material, at which point the database would be “transferred to a Concordance database that Defendants could maintain at their own cost.”

The defendants objected to this proposal, and Judge Vadas ordered the Government to provide more information about the effects of transferring the documents to a Concordance database. The Government declared that the cost of the transfer alone would be $118,000, and that it would take 6 to 8 weeks to complete. Further, the Government explained that due to the transfer, some user-created metadata would no longer be viewable or searchable, specifically including “(1) Database user actions (‘audit history’); (2) user searches including save search syntax; (3) image annotations; and (4) Database ‘artifacts’ such as batches, views, or layouts.” The defendants responded that they would “lose our saved searches compiled in files within the database, the very work that we have spent months and many hours putting together. These files essentially represent the virtual entirety of the defense work on the data base.”

Aside from these concerns, when asked when it first explained the possibility that the database could “wind down” before trial, the Government “could not point to a single instance where it had actually informed Defendants that this was a possibility.” Instead, the Government claimed that the “projected” two-year project duration should have been understood by the defendants to have been calculated based on the start of the project in June 2012, rather than the completion of the database as the defendants assumed.

Judge Vadas noted that if the Government had indicated that the database might be shut down prior to trial, and taken this position “when it broached the possibility of using the Database to manage discovery in this case, Defendants would have objected strenuously.” Ultimately, Judge Vadas found that since the Government had “chose to use an eDiscovery platform for this action, selected and managed the eDiscovery provider, and negotiated and agreed to Terms and Conditions for Access to the Database with the Defendants,” and that the Government had never disclosed that the database might wind down, “that winding down the Database before Defendants are ready for trial in December 2014 would prejudice Defendants' ability to prepare for trial and would offend the court's notion of fairness.” Therefore, the Government was ordered to continue to pay for the database through December 2014, and to continue providing the services agreed to in the Terms and Conditions.

So, what do you think? Should the Government have been required to continue to pay for the database, or should exporting it to a Concordance database for the defendants to use have been sufficient? 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Smaller Law Firms Save Big with Cloud-Based eDiscovery – eDiscovery Trends

According to a new article in ABA Journal (Cloud-based e-discovery can mean big savings for smaller firms, written by Joe Dysart), if you are a smaller law firm, it may make more sense to “rent” your eDiscovery applications in the “cloud” rather than bring a full-fledged hardware and software solution in-house.

Dysart’s article quotes a couple of panelists from a panel session at the recent LegalTech (LTNY) conference, including panelist Alan Winchester, a partner at the New York City firm Harris Beach, who stated: “For firms without robust IT departments, it grants them the experts to manage the technology operations and security.”

The article also identifies some benefits of using cloud-based eDiscovery solutions, including:

  • No need for software updating: Updates to cloud software tend to evolve over time, with users easily absorbing smaller, steadier changes over a much longer time span.
  • Best practices are continually updated: eDiscovery cloud vendors learn to avoid the pitfalls with software much more quickly, given that they are working with multiple law firms at once. Essentially, the mistakes and misunderstandings that can happen with an eDiscovery software package tend to happen at a much faster rate.
  • No need for yearlong rollouts: With eDiscovery in the cloud, all the hardware and software installation logistics are sidestepped. Instead, firms can focus entirely on training staff and bringing them up to speed.
  • The return on investment can be very attractive: Smaller law firms may go months or even years before needing a robust eDiscovery package. Instead of spending major dollars – and then watching helplessly as the system grows obsolete – they can go to the cloud for eDiscovery on an ad hoc basis and often save handsomely.

As platform manager for CloudNine Discovery’s OnDemand® eDiscovery review application (shameless plug warning!), I can attest to the benefits above with some of our own clients.  When we have software updates to apply, it’s a simple rollout (typically on a Saturday night for up to a couple of hours – our developers have no life!) for all users of the software.  And, assisting various clients has enabled us to learn how the software can be modified to meet their needs (the priorities in our ever-changing development roadmap are largely influenced by our own clients’ requests).

If you’re a small firm shopping to “rent” an eDiscovery application, consider this:

  • Know where your data is stored: It’s your data, so you should be able to know where it’s stored and know that it’s secure.  Is it stored in the US or internationally?  You don’t want to have issues getting to your data when you need it most.
  • Try it before you buy it: The cloud provider should let you conduct a no risk trial with your own data before you have to make a purchasing decision (see the banner below if you want to check out CloudNine’s no-risk trial offer).
  • Training and support should be free: The application should be easy to use, but it still helps to get training as well as application support when questions arise.  However, you shouldn’t have to pay for it.

As Dysart’s article concludes, “law firms do need to take a hard look at the technology both ways before taking the plunge”, so it’s always important to consider the pros and cons as it applies to your firm.  Nonetheless, the benefits of cloud-based eDiscovery solutions make it an attractive option for many law firms today, especially small firms with limited budget and resources to manage the ESI in their cases effectively.

So, what do you think? Have you considered cloud-based solutions for your eDiscovery projects? 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Planning for the Unexpected: Changing eDiscovery Providers on Short Notice – eDiscovery Best Practices
 

Editor’s note: From time to time, we get the opportunity to host a “guest blogger” which not only provides a different perspective to our readers, but also gives me a break from writing for a day!  🙂  Formerly the Vice President of eDiscovery and Information Governance at one of largest biopharmaceutical companies in the world, Ronke Ekwensi is now a Managing Director at Huron Legal, where she helps clients overcome information lifecycle challenges to meet immediate and long-term information governance and eDiscovery goals.  Ronke has written a terrific article about her challenge in having to switch eDiscovery providers right after taking over as head of eDiscovery and how she and her team addressed that challenge.  Enjoy!

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About a month after assuming my role as head of eDiscovery for one of the world’s largest biopharmaceutical companies, I was suddenly forced to change eDiscovery vendors.

The day began with what I thought was a routine business meeting with our existing eDiscovery vendor, a relationship which, until that moment, had been blissful. Five minutes into the meeting, bliss was replaced with shock when I learned that the company’s owners had decided to “get out of the eDiscovery business.”

The experience forcefully taught me the importance of carefully choosing an eDiscovery vendor. Savvy practitioners typically look at vendors’ substantive qualifications such as analytics expertise, review capacity, processing and hosting technology, but do not necessarily look at their underlying stability and are often unprepared to deal with an eventuality like the one I faced. 

Following are some lessons I learned from the experience:

1.  Communicate internally

The first order of business should be internal communication. Your approach to communication could possibly make or break the success of the transition.

a. With management

It is critical to keep upper management informed. Their data and their litigation are at issue and you do not want them to learn of the situation elsewhere. The communication should be direct and focused; while tempting, this is not the time to be alarmist or adversarial. I chose to simply state the facts and make assurances that my team and I had the situation under control. I committed to deliver to management a fully executable plan within a few days.

b. With affected stakeholders

It is also important to make sure that those affected by the change are kept informed of the situation, including internal stakeholders and outside counsel.

2.  Assemble a transition team

Bring together the key team members who will be involved in the transition. I kicked off a small internal team from the law department (both eDiscovery and litigation) and our IT organization.

3.  Assess the current state

The transition team’s first order of business should be to assess the full state of affairs.  In our case, the team was charged with answering the following questions:

  • What data is in the vendor’s possession? 
  • In what phases of the Electronic Discovery Reference Model (EDRM) is the data?
  • Which matters are affected?
  • In what stage in the litigation are these matters?
  • What is the implication of switching providers mid-matter?
  • What are the technical options available for data transfer?
  • What are the risks inherent in each option and are they defensible?

Each component of these answers can require technical expertise and legal advice to ensure defensibility.

4.  Identify a new eDiscovery partner

“Vendor going out of business” is a very uncomfortable feeling, and it highlighted for me the importance of looking beyond technical and EDRM capabilities in the vendor selection process. A critical part of our selection was the potential vendors’ financial stability, based on a strong balance sheet, diversified products or services, and a diversified client base. We elected not to consider providers for whom a single “anchor client” accounted for more than 50% of their revenue. 

Working with our procurement organization, we developed a robust set of objective and subjective criteria with which to evaluate potential providers on their likely longevity. The criteria included:

  • Annual eDiscovery services revenue above $25 million.
  • Fully verifiable multi-year financial statements (particularly privately held companies)
  • At least three favorable client references within our industry

Through the partner selection process, I was skeptical of low priced vendors, privately held companies without financial transparency, and the “new kid in town.” I was not enamoured by flashy presentations of the latest, greatest technology.  We ultimately selected a partner that was financially stable and did quality work at a good price point.

5.  Transfer active matters

I once worked with a facilities manager who quipped, “the way to get people to reduce the paper in their offices is to move them frequently.” That was certainly true in the digital equivalent of our transition plan.  The cost, complexity, and risk of moving over 40 terabytes relating to hundreds of matters necessitated that we develop a strategic approach to data transition. We therefore archived as much data as was practical, based on the direction of the lawyers overseeing the matter and the opportunity to reduce cost. The rest of the data we transitioned to our new platform.

6.  Create defensible documentation

My team and I entered this situation at a disadvantage. I was new to the position and my team was completely new. The vendor relationship had been established and most of the data had been transferred before I joined the company. The data related to multi-year matters that had gone through a phased collection process. I was determined that, going forward, we would document our process, both for defensibility and to preserve organizational history. Each action taken for each matter was fully documented and the documentation was preserved as a business record.

Conclusion

While not pleasant at the time, the experience resulted in tremendous benefits in the end. We were able to improve our existing processes, seek opportunities to reduce costs, “clean house,” and select an eDiscovery partner, not just another vendor. I am happy to report that the relationship lasted a long time.

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So, what do you think? Have you been forced to suddenly switch eDiscovery providers?  If so, how did you handle it?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Tom O’Connor of Gulf Coast Legal Technology Center – eDiscovery Trends

This is the ninth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Tom O’Connor.  Tom is a nationally known consultant, speaker and writer in the area of computerized litigation support systems.  A frequent lecturer on the subject of legal technology, Tom has been on the faculty of numerous national CLE providers and has taught college level courses on legal technology.  Tom’s involvement with large cases led him to become familiar with dozens of various software applications for litigation support and he has both designed databases and trained legal staffs in their use on many of the cases mentioned above. This work has involved both public and private law firms of all sizes across the nation.  Tom is the Director of the Gulf Coast Legal Technology Center in New Orleans.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

In my opinion, LegalTech has become a real car show.  There are just too many vendors on the show floor, all saying they do the same thing.  Someone at the show tallied it up and determined that 38% of the exhibitors were eDiscovery vendors.  And, that’s just the dedicated eDiscovery vendors – there are other companies like Lexis, who do other things, but half of their booth was focused on eDiscovery.  The show has sections of the booths down one long hall with sales people standing in front of each section and it’s like “running the gauntlet” when you walk by them.  It’s a bit overwhelming.

Having said that, a lot of people were still getting stuff done, but they were doing so in the suites either at the hotel or across the street.  I saw a lot of good B-to-B activities off the sales floor and I think you can get more done with the leads that you get if you can get them off the sales floor in a more sane environment.  At the same time, if you’re not at the show, people question you.  They’ll say “hey, what happened to the wombat company?”  So, being at the show still helps, at least with name recognition.

One trend that has been going on for a while is that “everybody under the sun” is doing eDiscovery or says that they’re doing eDiscovery.  The phenomenal growth of the number of eDiscovery vendors of all sizes surprises me.  We see headlines about providers getting bought out and some companies acquiring other companies, but it seems like every time one gets acquired, two more take its place.  That surprised me as I expected to see more stratification, but did not.  Not that buyouts aren’t occurring, but there’s just so much growth in the space that the number of players is not shrinking.

Another trend that I noticed which puzzled me until I walked around the show and realized what was going on, is the entry of companies like IBM and Xerox into the eDiscovery space.  It puzzled me until I took a good look at their products and realized that the trend is to get more throughput in processing.  Our data sets are getting so big.  A terabyte is just not that unusual anymore.  Two to five terabytes is becoming typical in large cases.  500 GB to 1 terabyte is becoming more common, even in a small case.  Being able to process 5 to 10 GB an hour isn’t cutting it anymore and I saw more pressure on vendors to process up to a terabyte (or even more) per day.  So, it makes sense that companies like IBM and Xerox are going to get into the big data space for corporate clients because they’re already there and they have the horsepower.  So, I see the industry focused on different ways to speed up ingestion and processing of data.

That has been accompanied by another trend: pricing pressures.  Providers are starting to offer deals like $20 per GB all in with hosting, processing, review, unlimited users, etc.  From the other end of the spectrum of companies like IBM and Xerox are small technology companies, coming not from legal but from a very high-end technology background, looking to apply their technology skills in the eDiscovery space and offering really discounted prices.  I’ve seen a lot of that and we started to see it last year, with providers starting to offer project pricing and getting away from a per GB pricing model.  I think we’re going to see more and more of that as the year goes along.  I hesitate to use the word “commoditized” because I don’t think it is.  It’s not like scanning – every eDiscovery job is different with the types of files you have and what you want to accomplish.  But, there will certainly be a big push to lower the pricing from what we’ve been seeing for the 1-3 years and I think you’re going to see some pretty dramatic price cuts with pressure from new players coming into the market and increased competition.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I’ve been astonished that after the first wave of comments last fall that there has been little or no public comments or even discussion in the media about the rules changes. The public comment period closes tomorrow (Tom was interviewed on February 14) and you know the saying “March comes in like a lion and goes out like a lamb”?  That seems to be how it is with the end of the comment period.  I think I saw one article mentioning the fact that the comments were closing this week.  It has been a surprising non-issue to me.

For that reason, I think the rules changes will go through.  I don’t think there has been a concerted effort to speak out against them.  As I understand it, the rules still won’t be enacted until 2016 because they still have to go back to the committee and through Congress and through the Supreme Court.  It’s a really lengthy period which allows for intervention at a number of different steps.  But, I haven’t seen any concerted effort mounted to talk against them, though Judge Scheindlin has been quite adamant in her comments.  My personal feeling is that we didn’t need the new rules.  I think they benefit the corporate defense world and change some standards.  Craig Ball pointed out in a column last year that they don’t even address the issue of metadata, which is problematic.  I don’t think we needed the rules changes, quite frankly.  And, I wrote a column about that last year.  In a world where I hear commentators and judges say that 90% of the attorneys that appear in front of them still don’t understand ESI or how things work, clearly if they don’t understand the current rules, why do we need rules changes?  Let’s get people up to speed on what they’re supposed to be doing now before we worry about fine tuning it.  I understand the motivation behind getting them enacted from the people who are pushing for them, why they wanted them and I suspect they will pretty much go through as written.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

I absolutely agree with that.  I think the obvious remedy is to educate them where lawyers get educated, which is in law schools and I think the law schools have been negligent, if not grossly negligent, in addressing that issue.  Browning Marean and I went around to the different law schools to try to get them to sponsor a clinic or educational program in this area eight or nine years ago and were rebuffed.  Even to this day, though there are some individuals that are teaching classes at individual law schools, with the exception of a new program at Northeastern, there has been no curriculum devoted to technology as part of the regular law school curriculum.

Even the programs that have sprung up: the wonderful job that Craig Ball and Judge Facciola does at Georgetown Law School is sponsored by their CLE department, not the law school itself.  Michael Arkfeld has a great program that he does for three days down at the Sandra Day O’Connor law school in Arizona State University (covered on the blog here).  But, it’s a three day program, not a course, not a curriculum.  It’s not a focus in the curriculum of the actual law school itself.  We’ve had “grass roots” efforts spring up with Craig’s and Michael’s efforts, what Ralph Losey and his son Adam have been doing, as well as a number of people at the local level with CLE programs.  But, the fact is that lawyers get educated in law schools and if you really want to solve this, you make it as part of the curriculum at law schools.

There has always been an attitude on the part of law schools.  As Browning and I were told by the dean of a top flight law school several years ago, “we train architects, not carpenters”.  I myself was referred to, face-to-face, by a group of law professors as a “tradesman”.  They said “Gee, Tom, this proposal is a great idea, but why would we trust the education of our students to a tradesman like you?”  There’s this sort of disdainful academic outlook on anything that involves the hands-on use of computers and that’s got to change.  Judge Rosenthal said that “we have to change the paradigm” on how we handle things.  Lawyers and judges alike have to look at things differently and all of us need to adjust how we look at the world today.  Because it’s not just a legal issue, it’s a social issue.  Society has changed how it manufactures, creates and stores information/data/documents.  Other professional areas have caught onto that and legal education has really lagged behind.

I mentioned the eDiscovery Institute at Georgetown Law School, which happens every June.  But, they cap the attendants at about 60.  Do the math, there are about a million lawyers in the country and if you’re only going to educate 60 per year, you’ll never get there.  I also think that bar associations could be much more forthright in education in this area and requiring it.  Judicial pressure is having the best results – judges are requiring some sort of certification of competence in this area.  I know of several Federal judges who require the parties to state for the record that they’re qualified to address eDiscovery.  Some of the pilot projects that have sprung up, like the one at the University of Chicago, are going to require a self-certifying affidavit of competence (assuming they pass) stating that you’re qualified to talk about these issues.  Judges are expecting lawyers, regardless of how they learn it, to know what they’re talking about with regard to technology and not to waste the court’s time.

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

I just recently published a new guide on Technolawyer, titled LitigationWorld Quick Start Guide to Mastering Ediscovery (and covered on this blog here).  There are a lot of beginner’s guides to eDiscovery, but this one doesn’t really focus on eDiscovery, it focuses on technology, answering questions like:  How do computers work?  What are bits, bytes, RAM, what’s a gigabyte, what’s a terabyte, etc.

I literally had a discussion about an hour ago with a client for whom we have a big case going on in Federal court and there’s a large production, over a terabyte being processed by our opponents in the case right now.  I asked the client how much paper he thought that was and he had no idea.  The next time we start arguing cost in front of the judge, I’m going to bring in a chart that says a gigabyte is X number of pages of paper so that it has some meaning to them.  So, I think it’s really important to explain these basic concepts, and we in the technology world forget quite a bit how little many lawyers know about technology.  So the guide is designed to talk about how electronic media stores data, how that data is retrieved and explains some of the common terms and phrases used in the physical construction and workings of a computer.  Before you even start talking about eDiscovery, you need to have an understanding of how computers work and how they find data and where data can reside.  We throw around terms like “slack space” and “metadata” casually without realizing that not everyone understands those terms.  This guide is meant to address that knowledge gap.

I’m continuing some of my case work, of course.  Lastly, I recently joined a company called Cavo, which is bringing a new eDiscovery product to market that I’m excited about.  Busy as always!  And, of course, there are always good things going on in New Orleans!

Thanks, Tom, 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

George Socha of Socha Consulting LLC – eDiscovery Trends

This is the seventh of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is George Socha.  A litigator for 16 years, George is President of Socha Consulting LLC, offering services as an electronic discovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support. George has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; in 2011, he and Tom Gelbmann converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and Tom Gelbmann launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle and there are nine active projects with over 300 members from 81 participating organizations.  George has a J.D. for Cornell Law School and a B.A. from the University of Wisconsin – Madison.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

I don’t think I saw any obvious new trends.  It was a year of adjustments, rather than anything dramatic.  When something dramatic shows up at LegalTech, usually it is because someone on the provider side has managed to catch a marketing wave and then everyone else is trying to ride that wave.  There was the early case assessment wave, the predictive coding wave, but no new wave yet.  The challenge is predicting what the new wave will be – like trying to predict what will go viral on the web.  Although I am sure there is a lot of speculation about what the next big thing will be, if you look at past projections in the industry we frequently got it wrong.  My guess is that the new wave will be a new wave precisely because it will come from an area we haven’t been paying much attention to.

Nonetheless, here are some thoughts.  One, we are seeing consolidation on the software side of the industry.  In any given area, review for example, we are seeing a limited number of offerings accounting of a substantial portion of the market.  Part of what is changing here is that specific products are not dominating only because of appealing mixes of functions, features, pricing and marketing.  They are establishing their holds by way of ecosystems built around their offerings – add-on tools, services offered in connection with the products, workflows built around the products, and the like.  As anyone who has followed legal technology knows, those who are on top today most likely will not remain there forever, so we can expect to see some of today’s leaders drop down the list as others elbow their way up.

There continues to be much discussion about consolidation on the services side.  There is a limited degree of consolidation to the extent that there are a number of mergers and acquisitions that have taken place, not just over the last year, but over the last few years.  Were those acquired organizations not replaced by others, then we would be having real consolidation.  But, I continue to see new service providers enter the marketplace – at least as rapidly as other providers are acquired, merged or disappear.  So, there is no meaningful consolidation on the service provider side – not if consolidation is defined as fewer players in the market.

Another thing that I’m seeing is the beginning of a change in focus.  Although many of the folks at LegalTech continue to cast production as the ultimate objective of e-discovery, a growing number are taking a newer – or really an older – approach.  They are looking to how one might tease a story out of the data.  This makes a lot of sense, because discovery isn’t intended to be a process unto itself; it’s meant to be part of a larger litigation or dispute resolution process.  The reason that you’re engaging in discovery or, more specifically, in eDiscovery is to help bring a matter to a satisfactory resolution.  I’m seeing more discussions and presentations about how eDiscovery fits into that larger context.  This change in focus could become a trend or it could fizzle out.  I think it ought to become a trend, but we’ll see.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I think the second question is the more important question.  I don’t see the proposed amendments achieving the type of meaningful change that people advocating for them hope to see. I think many people pushing for the changes feel the 2006 rules changes weren’t effective.  If you look at why the 2006 changes have not been effective, I think it’s largely because people haven’t paid attention to them.  If that is the case, what good will changing the rules again accomplish?

I think that a more effective approach would be more robust education for both judges and practitioners, with that education, especially the judicial education, coming from a broader range of educators than has been the case in the past.  If we focus on judicial education, judges should be hearing from the attorneys who are actually doing the work.  They also ought to be hearing from the corporate, governmental and similar people who are the end clients. And, they ought to be hearing from the service and software providers.  As long as education to judges doesn’t include strong and well thought out insight from those three areas, the judges are going to find it difficult to get the education they need to be more effective in implementing the 2006 changes – never mind any changes that may come from the must recent push to amend the rules.

By the way, it would be unfair to lay this problem at the foot of the judiciary.  By and large, judges do and should turn to litigants to better understand the particulars of “where the rubber hits the road” with electronic discovery issues in matters before them.  The litigants themselves, the lawyers, are doing a terrible job of educating the judges because, by and large, they have not attempted to educate themselves about such aspects of eDiscovery as the 2006 rules changes.  If the lawyers appearing before judges haven’t educated themselves about the 2006 changes, why do we think it will be any different with changes in 2014?

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

This is a problem.  I wish I had a quick and easy answer, but I don’t.  Most attorneys don’t know enough about the theory or practice of eDiscovery.  For all the conferences and webinars held on such topics, they don’t seem to reach the bulk of practicing attorneys.  I suspect that the only real answer is time – and a lot of it. .

No matter have good the content delivered at programs such as LegalTech, it is clear that these programs are mostly attended by a small cadre of people who keep running into each other. Look at the first two days at LegalTech; they are like a class reunion.  You see all your old friends, people in the “bubble” who deal with electronic discovery a lot.  It’s our “same old, same old”.  Most of us could spend 2 1/2 days debating one small arcane issue within eDiscovery. There are over 2 million attorneys practicing in the US and they are not in this “bubble” – maybe, at most 2,000 are.

Then you get the third day of LegalTech.  Every year I hear the providers complaining that’s the day when people show up looking for baubles and other little giveaway items.  Providers bemoan that those attendees are not there for substantive content and they’re not there to really understand what the exhibitors have to offer – they just want free stuff to fill their shopping bag.  And, in some way, the real problem is that those are exactly the people we need to reach and those are clearly the people we are not reaching.

How do we reach those folks?  Many ask that question, but so far not have found an effective answer.  eDiscovery needs to “cross the chasm” (as in Geoffrey Moore’s book Crossing the Chasm where you have that big gulf between the early adopters and the rest of the people).  In the larger legal world, we have not crossed the chasm at all when it comes to eDiscovery.  Within the eDiscovery world, you could argue that we’ve crossed the predictive coding chasm, or you could argue that we haven’t, but at least it’s a debate.  I don’t think there is even a debate in the larger legal world as to whether eDiscovery has crossed the chasm, it has not.

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

Several things: We keep pushing EDRM forward.  For the last four or five months we have put out a monthly EDRM update highlighting the many things we are working on – frameworks, standards and resources.  In addition, we have begun the process of making EDRM a 501(c)(6) trade organization.  There are several reasons for doing this, but the main reason is to ensure that EDRM is well positioned so that we can look forward not just to the beginning of our tenth year in April, but to our 20th and our 30th years.

I’m also in the early stages of launching a new group called ABIKOS, a service and technology firm focused on the eDiscovery space.  Our objective is to take discovery back to what it was meant to be – with the focus on bringing matters to a satisfactory resolution

As for Apersee, we’re in the early stages of Apersee version 3.  We have some planning and discussion to do, but we hope in the coming months that you’ll see a greater emphasis on the areas that have actually been of interest to folks, changing the focus to the portions of it in which people have found the greatest value.

Thanks, George, 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Adam Losey of IT-Lex.org – eDiscovery Trends

This is the sixth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Adam Losey.  Adam is president and editor-in-chief of IT-Lex.org, a technology law not-for-profit educational and literary organization and an attorney at Foley & Lardner LLP.  Adam also served as an adjunct professor at Columbia University, where he taught electronic discovery as part of Columbia’s Information and Digital Resource Management Master’s Program.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

There were several trends that I saw at the show this year.  I think there was more emphasis this year on data security and privacy.  I don’t think that anybody is doing anything all that differently when they’re hosting data.  I think that they were – hopefully – going through the same steps for security before, but they’re emphasizing security more in marketing.  There was a lot more emphasis on ease-of-use solutions.  Candidly, I was expecting for some of the providers that are in this space to merge or go away and I know some of that is happening, but I saw increased competition in the marketplace in a variety of fields, which surprised me a little bit, but is good for the market.  I also saw more dedicated web-based litigation hold management products out there than I had seen in the past.  Unfortunately, I wasn’t able to go by every booth, so my experience is largely anecdotal and I may have missed some other trends.

As for trends for 2014, on the legal front, I expect more litigation on spoliation.  Again, my experience is anecdotal, but I happen to handle that particular issue a lot.  I’m seeing it pop up in a lot more cases; if not spoliation itself, then requests by parties to dig into their opponents’ search and review processes, just as a matter of course in the litigation if it is of any size.  In the past, I didn’t see that for any case of any size- it typically only came up in larger cases.  I don’t know if that’s decreased trust or a “trust but verify” Reagan type of approach, but it has become the norm in my world.  These days, many people want to do discovery on your eDiscovery, again just as a matter of course.  Typically, in the past, you’d only see that come up if there was any issue or deficiency with a production where someone could point to something wrong with your efforts.  But, it may not always be appropriate to do discovery about discovery, short of any issue identified with a production.

On the vendor front, I see a lot of vendors that have “click and drag” tools and solutions for small or medium sized firms or cases, which I think are really cool and I’m looking forward to playing with some of them.  From ingest to the end, a single person or lawyer can handle everything, clicking and dragging files to get them processed.  Obviously, sometimes issues come up in processing, so I’m wondering how the vendors handle those.  But, there’s a lot of cool stuff that I saw this year that I’m looking forward to playing around with.

The last trend that I see is a lot of interest and emphasis on forensic collection from mobile devices and social media collection.  That’s no surprise because in cases that I deal with, that comes up all the time.  I’ve done plenty of collections from iPhones and other devices.  The problem is that when you have those solid state drives, collections can be a little weirder and forensics can be a little more difficult.  And, social media collection is always somewhat of a “tricky bird” for a variety of reasons, not the least of which is you sometimes have a lot of layers in that onion that make it harder to collect from those sources.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

Excellent question.  I see some of the rules being approved.  I would want to fact check and make sure I’ve got the changes right, but I imagine that changes related to timing of depositions and number of witnesses and other minor procedural “quirks” will be passed, though I don’t see those as having a big impact on litigation.  I think that the number of hours per deposition is trimmed by an hour or two.  In all of the depositions that I’ve been involved, time of deposition is not a major controversial point.  If you can’t work that out with the other side, that doesn’t bode well.  But, for Rule 37(e), the rule that essentially creates a new standard for the imposition of spoliation sanctions, I hope that doesn’t pass.  I think it raises a lot of issues whether or not you think it’s necessary.  There’s a big issue about whether federal or state law governs this stuff.  When you’re litigating spoliation on a diversity case, it’s presumably governed by state law.  Or, so some cases say, others say “no, it’s a procedural issue, it’s governed by federal law”.  But, if they pass that rule, you suddenly have a new standard for spoliation in federal court, which will lead to all sort of nasty issues of “forum shopping” where people who destroy things will want to be in federal court, believe it or not.  Which is unusual, because there will be a standard that makes it difficult to get spoliation sanctions.

Judge Francis had a well-reasoned and superbly reasoned opinion addressing spoliation, where he held that “[The] sanction [of an adverse inference] should be available even for the negligent destruction of documents if that is necessary to further the remedial purpose of the inference. It makes little difference to the party victimized by the destruction of evidence whether that act was done willfully or negligently. The adverse inference provides the necessary mechanism for restoring the evidentiary balance. The inference is adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss.” (Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y. 1991)).

It does not matter whether the spoliator was a “cackling villain twirling his mustache” or an innocent employee that pressed the wrong button.  Spoliation addresses prejudice a party suffers as a result of the destruction of evidence needed to prove a case. It doesn’t really matter to the victim what the other party’s intent was.  You just want to be put in the position where you would have been if the evidence had not been destroyed.  So, the law until now in most jurisdictions (which I think had it right) said that if you have possession, custody and control of the ESI and you knew that you should have preserved it and it gets destroyed, we’re not going to shy away from leveling the playing field based on that.  The new Rule 37(e) is going to make it night impossible for some judges to keep the playing field level.

I’m not sure if that is going to pass or not, I have no special insight into that process or those committees.  But, although we do have some chaos now in that there are different standards in different jurisdictions, but I like for judges to have flexibility generally.  I think that “bright line” rules, while they may initially have some attractiveness in uniformity, take away flexibility from the good judges we have, who are smart people.  With flexibility, I think you see justice more than if you have a hard iron rule and the conflict of law issues that are going to come up as a result will be tricky.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

Well, again, my observations are anecdotal.  I’ve “drank the Kool-Aid” like many people that you’re probably interviewing.  So, most of the people that I deal with have some knowledge of eDiscovery.  But, in the Bar at large, I do think things are getting a lot better.  I think that the big barrier to education in a lot of cases is that you get a lot of eyes glazed over by a certain type of person when you start to talk about eDiscovery.  Much like my eyes might glaze over if you talk about particular provisions of the partnership tax code.  Some people love tax law – I have a friend that I went to law school with that is enamored with tax law and he’s an awesome tax lawyer.  And, he really likes that, but he doesn’t like eDiscovery.  So, it’s “different strokes for different folks”

Unfortunately, unlike partnership tax law, if you’re going to be litigating, you have to know about eDiscovery.  Ironically, my first trial was in Tax Court, on a pure tax issue, and some pretty major eDiscovery issues popped up in the middle of trial in a dramatic, surprising, way – so even the tax litigator needs to know eDiscovery basics.  So, the real challenge on eDiscovery education isn’t reaching the people who already follow this and already read the blogs – they’re well versed in it.  It’s important to provide something that’s funny and entertaining, if you can, so that you can bridge that interest gap with either humor or writing or presentation skills.  I think a lot of organizations are doing that and I feel that more people know about it now.  Certainly, the judiciary does.  The judges are very well versed in a lot of eDiscovery issues, at least generally.

But, at firms, there are some folks that don’t want to learn it, but realize it’s important, so they delegate.  In most situations, I don’t see anything wrong with that.  If you have a senior trial lawyer that’s in his 80s and he’s an excellent presenter and trial lawyer, but does not want to handle the “nitty-gritty” of eDiscovery and he brings someone on to handle that for him, I don’t see anything wrong with that.  The rules of professional conduct, at least in Florida, allow that too.  In competence, we have an ethics opinion in Florida (I think it’s 0602) that says you have a duty to competence that extends to an understanding of eDiscovery.  I think 0602 talks about metadata scrubbing and emails, but one of the ways that you can make up that competence shortfall is by involving other lawyers and having them help with the things you don’t know or understand, and I don’t see anything wrong with that.  I’ve seen a lot of companies actually (and I agree with this and love doing it), have firms or individuals just to serve as eDiscovery counsel to look over the shoulder.  They may use different firms for different litigations, but they want somebody that knows how the business works really well that can look over the shoulder of outside counsel or in-house folks in every case, which I think is a good trend.

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

There are a couple of quick points that I’d like to hit on with IT-Lex.  One, for law students and young lawyers, we have the highest paid cash prize writing competition in the country.  So, if you are a law student or know a law student, by all means, check it out or send them the link.  The cash prize is big, but it’s not the biggest part of the prize – the real prize is that the winner gets to headline at the Innovate conference, which is a huge career springboard.  Plus, they get invitations to become members.  So, I really want to emphasize the writing competition.

On top of that, our Innovate conference is going to be coming up October 9 and 10 of this year, so we’d love to see people there.  If you want to sign up as a friend of IT-Lex, you can do so for free and we always welcome involvement from folks in the community with what we do.  So, look at what we do and don’t be shy to reach out is the quick message.

Thanks, Adam, 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Alon Israely, Esq., CISSP of BIA – eDiscovery Trends

This is the fifth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Alon Israely.  Alon is the Manager of Strategic Partnerships at Business Intelligence Associates, Inc. (BIA) and currently leads the Strategic Partner Program at BIA.  Alon has over eighteen years of experience in a variety of advanced computing-related technologies and has consulted with law firms and their clients on a variety of technology issues, including expert witness services related to computer forensics, digital evidence management and data security.  Alon is an attorney and a Certified Information Systems Security Professional (CISSP).

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

Once again, I did not see much differentiation between different exhibitors.  There was nothing that stood out to me as being a groundbreaking differentiator.  That said, it seemed a lighter show, less people.  But, even though it was a lighter number of attendees, the caliber of attendees seemed a bit higher.  This is all coming from my gut as I have no real numbers or metrics to back this up, but, the conversations we had at our booth seemed, on average to be a little more substantive than in previous years.

As for trends, there seems to be more discussion about the high-tech trends, such as cloud computing and analytic technologies.  Instead of people talking about these technologies generally, it seemed as though people were talking about these technologies more specifically.  Not to say that they were differentiated, they were still non-differentiated.  But, there were more people talking about cloud technologies and there was a big CLE about it.  And, more people were talking specifically about analytics, not just saying “you can do all of this culling”, but showing specific examples, with charts, graphics and other neat elements that indicate searching/analytics results.  So, there seemed to be a bit more specificity around technology and, together with that, advanced technology.  But, to be honest with you, there was nothing at the show that really blew my mind.  Nothing that was groundbreaking, nothing that looked like it would initiate a shift in the industry.  If anything, it felt like, other than the few specifics around high-tech, similar to previous years.

I will say that some of the attendees that I talked to, some of the GCs and outside counsel firm attorneys, said they spent more time inside the educational components at LegalTech instead of the exhibit hall.  So, as an exhibitor, that doesn’t make me overly happy to see that, but, as a knowledge leader in the industry, I’m very happy to see that.  I know that ALM has always tried to do a good job with the educational components.  And, I think this year attendees took that part of it more seriously than in the past several years.  It seemed that most of the networking that my BIA colleagues and I did was at the educational sessions, not necessarily on the floor.  I think that’s a positive indicator for the people who made it to the show.

As for general trends in 2014, I think you will see corporations start to take control of their technology, not only for in-house solutions, but also for the solutions that outside counsel will be providing to them.  Today, corporations tend to trust their outside counsel firms as to the review tools and other technologies that they use, but I think that it will be much more of a coordinated effort going forward.  The level of maturity for corporations around eDiscovery is being raised.  What the means in practical terms is that they will work more closely with their trusted vendors.  I don’t believe that corporations are going to bring everything in-house and that vendors will be out of luck, though a lot of other people believe that will happen.  I believe that services business for eDiscovery will remain strong for the next decade or longer and the dynamic of obtaining those services will morph into the corporation sitting side-by-side with the law firm making those services decisions.

That trend was evident at the show: you heard it from different vendor booths and the way that they were pitching their products and you heard it from actual in-house attorneys that were attending.  I saw at least two cases where the GC and his outside counsel attorney were walking around the show together – hopefully, the GC wasn’t getting charged for that time!  You’re starting to see corporations take more control of the reins, but not in the way we always thought where they dictate to the outside counsel what vendors to use.  Instead, it’s much more of a collaborative effort and I think you’ll see much more of that over the next several years.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I see those being incredibly important.  The more we can get specificity around what needs to happen early in a case and the more that specificity can be codified, the better off we will all be.  If you look at all of the wasted money spent over the last few years, some of that is solved by the new rules, specifically in the area of preservation.  We’re in the business of selling preservation software, so I’m excited about the potential changes.

But, if I step out of that personal perspective, the changes still make a lot of sense because, today, you still have a lot of effort being spent by parties figuring out legal hold and preservation issues.  Who was put on hold, when were holds put in place, what data was and was not preserved.  That usually happens when a problem occurs – you have a peak of expensive lawyering and legal maneuvering with motions practice, etc and typically when it’s already too late.  So, some of these new rules which are focused on discussions early in the case with respect to preservation should nip a lot of that in the bud.  Now, instead of fighting four months later after discovery closes whether some system was preserved or not, that should get covered early-on with some of the new rules that will hopefully go into effect.  So, I’m very excited about the rules changes, not only as a vendor in the space, but also as a legal professional in general.  The more efficiency that you can create early in the matter, the more money you can save and the more you can focus on the substantive issues and on the merits of the case.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

I do wholeheartedly agree.  Our industry is funny because the cost of goods sold for eDiscovery solutions and services is higher than for most other industries else because of the fact that we have to educate with almost every sale.  There are a lot of resources out there, including efforts by many respected thought leaders and all of the great blogs out there, and many providers have an educational component to their website.  So, you’re right that there are a lot of quality resources for attorneys at their fingertips, yet there are still so many attorneys that simply don’t understand it.  Most of the small business and solo practitioners market doesn’t understand eDiscovery and many GCs of mid-sized corporations don’t either.  And, frankly neither do many “corner office” partners at Amlaw200 firms.  They know about it at a high level and understand that it’s important, but they don’t know enough detail.  But, the good news is that with the advent of those educational resources and the fact that every eDiscovery provider and vendor teaches as they sell, those legal professionals don’t need to learn that much – even getting four or five feet “underneath the water” instead of thirty feet under would be helpful.

As to why they don’t know more, I don’t know.  Maybe attorneys are so used to having experts to rely on and because they feel they know enough about eDiscovery, that they don’t need to know any more detail or process understanding unless a problem arises.  I don’t have an explanation as to why, with all of these great resources available, that most legal professionals don’t have more knowledge.  Unless it’s just that they have a “technology block” and are still afraid of the technology aspects of that knowledge base.  To improve things, I believe that vendors will continue to have to sell in an educational manner, with one half of the sale educating the attorney and the other half focused on closing the deal.  And, hopefully more law schools will continue to incorporate eDiscovery into their curriculum.  But, I don’t see the issue of more knowledge across a wider audience of legal professionals getting a whole lot better anytime soon.

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

BIA continues to be focused on bringing the best technology and workflow that we can to the left side of the EDRM model – such as legal hold, preservation and ECA.  Legal hold activities such as notifying and tracking employees, interviewing custodians and creating questionnaires to do so, and suspending practices such as email auto deletion, and collection of ESI is what we’re all about.  We’ve been really integrating those areas of the left side of the EDRM into one another.  Today, TotalDiscovery employs much more of a circular workflow than it did even a year ago.  It used to be much more siloed – you would implement a legal hold and then do a custodian questionnaire and the collection.  Now, we’ve integrated those steps a lot more.  Hold flows into the questionnaire process, you can seed collections with data from the questionnaires, and so forth.  We’re also continuing to serve up as much intelligence on the data as possible.  You don’t have to wait until you get further down the right side of the model to understand the type of data you have or how much you have.  Obviously, you still need to be able to have a good review tool to perform real hard core research and analysis, but to the extent we can help attorneys more knowledgeable about their data before they get to review, the better it will be for them.  That’s our goal.  So, a lot of that comes from integrating different parts of the process and not focusing on just one area of the process, but gleaning intel from all of them and summarizing at a high level for the attorney.  Also, our enterprise features are really strong and not something we talk about a lot (but we probably should) – stuff like connecting to Active directory, Exchange and other systems – real simple to do as a default configuration.

Also, our flat fee pricing model is a source of pride for us and it’s been very successful.  Flat-fee pricing, unlimited use of functionality and overall budget predictability are values we offer and guarantee – which is unique in the market.  Also, one of the good things about BIA is that we’re a technology company and we’re always adding features – we’ve now moved to a tighter cycle with a new feature or function added every four to six weeks.  Sometimes it’s a small feature, at other times, it’s a large feature we’ve been working on for a while.  It keeps it very fresh and we’re able to do so because of the way we’ve built the product with the cloud and web technologies that we use  So, BIA continues to focus on what we’re good at – improving the workflow and functionality for the tasks compelled by companies on the left side of the EDRM model, leading up to review.

Thanks, Alon, 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

James D. Zinn, Managing Director of Huron Consulting Group – eDiscovery Trends

This is the third of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is James D. Zinn. James is Managing Director of Huron Consulting Group.  James leads the technology team at Huron Legal, which includes the data collection, processing, hosting, production, and forensic analysis services along with infrastructure, support, and software development. James has extensive experience managing the strategic and tactical use of technology within investigative and litigation consulting matters.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

The Legal Tech conference was another good experience for us as a company.  It was an overall good conference for us with good traffic at our booth, great meetings throughout the week and good business opportunities coming from the show.  So, overall our impressions were positive and we felt good about the experience all around.  In fact, I would say that it was one of the best LegalTech experiences ever from our perspective.

As I look around the conference in terms of trends, the biggest trend that I noted was an increase in the discussion about Information Governance.  The whole concept of Information Management and Information Governance has become a popular topic.  There were lots of exhibitors using Information Governance or related language when talking about their products.  There were also several sessions and panel discussions about it, as well.  So, that stood out to me as the biggest trend I saw at the show over the previous year. I think that observation is reflective of an overall trend toward a greater focus on Information Governance and the impact it has on a number of things, including discovery costs and workflow.

The other trend that I see for 2014 is more stratification among the service providers.  Part of the reason for that is continued industry consolidation.  I think there is a growing differentiation between service providers, which we feel from our own experience, as well.  On one hand, a number of providers are continuing to mature and develop their full service offerings while on the other hand; there are new entrants into the market focusing on the application of technology as a differentiator from legacy service providers.

A related trend is greater acceptance of cloud-based solutions.  I think a number of providers are focusing on leveraging cloud-based infrastructures and technologies in their solutions.  I’m sensing an increased acceptance within the marketplace for cloud-based solutions.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I don’t have any particular source of information that would lead me to do anything more than speculate on the timing of their approval, but I do see them being accepted this year.  While the amendments have generated a fair amount of discussion, I think they represent a positive trend and will be approved and enacted.  I think the impact on the up front preparation and speed of litigation has been talked about extensively and will be a natural evolution for those who are already well prepared in that area. They will cause even more pain than the last amendments for those who are not as organized.  The impact on the early calendar of litigation may come as a shock to the litigants who aren’t as organized as they need to be.  I also think the introduction of proportionality via the amendments is a good thing and will bring some reasonableness to the burden of discovery that many of our clients face.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

That’s an interesting question because I wonder how much my experience personally and our experience as an organization is influenced by attorneys who are self-selecting.  In other words, do we see a representative sample of attorneys in the marketplace?  I would argue that we’ve seen an increase in the sophistication of our clients, both our clients at law firms and those at corporate legal departments.  To generalize them as a group, they are definitely more educated and more knowledgeable around eDiscovery issues than they were a few years ago.  But, I don’t know if that’s because of the nature of the types of clients we tend to attract are those that have recurring needs for discovery services and have been dealing with it for a number of years.

I do think that, as an industry, there are a lot of resources available to educate, so for those who do not avail themselves of those resources, it may be a reflection of their lack of a regular need for those services.  It’s easy to say that there could always be more education provided, but I think that you’re correct in the assessment that there are a number of good resources already.

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

We pride ourselves on being close to our clients and their needs and so we are continuing the development of our full-service offerings.  Our focus continues to be around holistic solutions to our clients’ problems, discovery being one of them, Information Governance certainly being another, compliance being a third, and so on.  So, in each of these areas, our focus is on how we can provide a complete solution to our clients.  By “complete”, I’m referring to everything from strategy and organizational assistance to help with the implementation of technologies or procedures and then on to the actual provision of services.  Huron is continuing within eDiscovery and beyond eDiscovery within the legal industry to focus on providing relevant, holistic solutions.

Thanks, James, 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Tom Gelbmann of Gelbmann & Associates, LLC – eDiscovery Trends

This is the second of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Tom Gelbmann. Tom is Principal of Gelbmann & Associates, LLC.  Since 1993, Gelbmann & Associates, LLC, is a consulting practice serving the legal services industry. Tom has an extensive record of working with law firms, corporate counsel and legal services providers as a consultant, advisor, project manager, and has also held the CIO position at two major law firms.  Tom has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; in 2011 he and George Socha converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and George Socha launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

While I didn’t attend the show this year (for the first time in many years), I have been monitoring communications about the show and what took place and have talked with a number of attendees, so I do have some perspectives about it.  Not surprisingly, a major theme this year was the surge in attention to Information Governance.  Information Governance is becoming the area that is grabbing attention within organizations, and rightly so.  We’ve been saying for quite some time in “EDRM-land” that if you can get your electronic house in order, eDiscovery challenges are mitigated and costs can be considerably reduced.

One of the results that you’re starting to see is the appearance of tools to help with that whole Information Governance process of: What do you have?  Who has it?  Where is it?  How do you curate it?  How do you identify what you no longer need to hold onto and effectively get rid of it?  And, when litigation does occur, how do you effectively hone in on the ESI that you need for that particular matter?

Another trend that I’m seeing in general is really two somewhat related trends: Metrics and Project Management.  Metrics has been something that has been slow to catch on for a long time, but I think organizations are now catching on to the fact that if you don’t measure it, you can’t manage it.  The light is coming on for people who are realizing that “yeah, I’d better start tracking these things”.  Metrics have really started to become more mainstream within the industry.  Associated with that is Project Management.  In eDiscovery, you have to have a well-defined, repeatable process to manage the projects effectively.  The more disciplined you are, the better your outcomes will be.  So, metrics and project management are really “coming of age”.

We’re also seeing more and more activity with mobile devices.  You’ve got smart phones, iPads and other tablets, BYOD, etc.  And, that’s really where more and more ESI will be.  I think mobile platforms are starting to take over as far as the means of communication and, in many cases, that’s where the story is.  And, what eDiscovery is all about is finding out the story.  Not that email is going to dry up any time soon, but you’re starting to see that the growth is in mobile and social media.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

I agree.  From what I’m seeing, it may have gotten a little bit better, but not a whole lot.  For change to come, the impetus has to come from clients.  Clients need to be more demanding and validate their outside counsel attorney’s claims of “I know all about eDiscovery” when maybe all they did was attend a CLE.  There has to be proof of their knowledge, but I’m not sure how clients will go about obtaining that proof.  But, they’re the ones paying the bill, so the impetus will have to come from them.  I don’t think it will come from a bar association.

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

I’m very enthused about EDRM this year from a couple of aspects.  One, we’re very excited that we’re moving towards a non-profit model for EDRM.  There’s been a lot of work so far and there’s still a lot of work to do, but I think we’re on track to complete that this year.  I think that’s really going to serve EDRM well for the longer term.  What I mean by that is that it’s been the “George and Tom show” and we realize that it can’t be if it’s going to continue and flourish for the long term.  There’s a lot of energy and a lot of good minds behind this initiative and I’m looking forward to that.

As far as projects are concerned, the Data Set group has been busy further developing the Privacy & Security Risk Reduction Model.  There are some new frameworks coming out and a few other things that we will hopefully be able to announce fairly soon.  The projects are continuing to create and update helpful tools and frameworks which, to some extent, address the education question you asked me earlier.  Information Governance is one of those project teams that is working on some interesting items.  Also, we started in October with a monthly update, so we’re doing a better job of letting people know about all of the accomplishments of EDRM.  In retrospect, we should have been doing that a lot earlier.  You don’t realize on a day-to-day basis what we’re accomplishing, but when we put together a monthly update, we realize that we did accomplish a lot.  Our 2013 end of year update shows that there were several things we accomplished in 2013 that were valuable to the industry.  So, the future is bright for EDRM from a variety of perspectives.

With regard to Apersee, we’re still working to prove to providers that there is value in maintaining their profiles about their products and services.  We understand that it takes effort to do so and we’re still trying to demonstrate the value to them.  The more providers put into it, the more valuable it becomes to consumers.  The Apersee Special Requests are a bright spot. When we distribute Apersee special requests from the consumer, looking for a specific complex, time-sensitive service, we get dozens of responses from providers within minutes to a couple of hours.  Generally, the consumer tells us within a day or less “Stop, we’ve got enough responses, this is great.”  So, the effectiveness of the Apersee special request tells us that there is a need to be fulfilled.  We’ve been told by consumers that it’s very valuable service, so we’re excited about that.

Thanks, Tom, 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily 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 Discovery – eDiscovery Trends

This is the first of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Brad Jenkins of CloudNine Discovery.  Brad has over 20 years of experience as an entrepreneur, as well as 15 years leading customer focused companies in the litigation support arena. Brad also writes the Litigation Support Industry Blog, which covers news about litigation support and eDiscovery companies’ funding activities, acquisitions & mergers and notable business successes. He 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!

What significant eDiscovery trends do you see for 2014?

Well, I think that technology assisted review tools will continue to gain traction and the software will continue to make the review process more intuitive.  I think predictive coding software is evolving to provide real-time predicted relevance scores for the collection as each document is reviewed.  One of our partners, Hot Neuron, announced last month that Version 4.0 of their Clustify software, is the first technology-assisted review tool to offer real-time predictive coding.  I also think that the technology associated with predictive coding will be used more in other areas of the eDiscovery life cycle, particularly Information Governance.

Another trend, one that I discussed last year, is integration of “best of breed” cloud-based applications to make the discovery process more seamless. Our alliance with BIA and the integration of their TotalDiscovery legal hold and collection tool to our review application, OnDemand®, has continued to be used by our clients to support preservation through production.  BIA has tremendous expertise and software to support the left side of the EDRM model and it’s a logical fit for the services and software we provide from collection to production.  Personally, I believe that the “best of breed” integrated applications approach is a preferable alternative to a complete solution because it’s difficult to be an expert in all phases of discovery.

I also think that it’s more difficult than ever for the small to medium sized firm to compete with the big firm that has most of the attention from the eDiscovery vendor market and has more resources in house to manage their discovery workload.  Most small to mid-sized firms lack the core competency, the infrastructure, the project management expertise and the overall personnel in house to provide the full range of services that large corporate clients are demanding, especially for litigation support and discovery services.  More than ever, these firms will need to leverage virtual resources to compete and provide the level of services their clients expect.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I don’t really have a prediction as to whether they will be approved this year.  I know there has been controversy with some of the proposed rules changes, especially Rule 37(e), regarding the level of culpability required to justify severe sanctions for spoliation and that Judge Scheindlin and others have criticized the rule.  I wouldn’t be surprised to see some changes to that rule before adoption.  Regardless, it seems like a lot of attorneys don’t follow the rules adopted back in 2006, so the rules will only be effective if attorneys adhere to those rules and courts hold them to those standards.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

Yes, I agree.  We work with a lot of firms whose attorneys lack basic eDiscovery fundamentals.  In some cases, the managing partners know that and have been asking for us to provide seminars and webinars to educate them on eDiscovery best practices.  And, we have been providing more consulting than ever to attorneys to assist them with technical language in requests for production to ensure that they receive the most useful form of production such as native files with included metadata.

As for what can be done, I think it’s imperative for each provider to provide resources to educate their clients and the legal profession as a whole.  We do that with our blog, eDiscoveryDaily.  As we approach 300,000 lifetime hits and 1,000 lifetime posts, both of which we will reach later this year, I’m proud of the knowledge base that this blog has become.  This year, we are also looking to really ramp up CLE training for attorneys that want to become more comfortable with technology.  There are numerous other great blogs and resources out there too.  I think we have to keep pushing and keep finding ways to reach attorneys and give them useful resources that can simplify the discovery process, which is what we’re all about at CloudNine.

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

In addition to our continued integration success with BIA and our partnership with Clustify, we recently released a brand new version of our review application OnDemand® , called Universal OnDemand.  We called it “Universal” because we have re-designed it to work in any browser, so clients can use it whether they prefer Internet Explorer, Firefox, Google Chrome or even Safari on a Mac.  We will be working to expand the application to support use with tablets this year and, as always, working to add features requested by our clients, who are the primary drivers of our development priorities.

We have also been working on a new advanced program that we call the Virtual BIG Firm™ program.  It’s a unique package of the full range of services that we have provided for years, along with our OnDemand review platform, for mid-sized firms that want to compete with the big firms, but don’t have the personnel, infrastructure or expertise to make it happen.  We created our Virtual BIG Firm program based on our experience working with over one hundred law firms for more than eleven years.  Our Virtual BIG Firm program appeals to firms interested in growing their practice.  These firms value continuing legal education, technology advances and they feel comfortable delegating.  It’s not for everybody, so we continue to offer our basic services and software as we always have, but for the firm that has a significant litigation workload but not the resources to fully manage it effectively, it’s a program that provides those resources at a fraction of what big firms spend on personnel & technology.

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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.