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

This is the third of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year 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 corporations 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 are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

I didn’t get to spend as much time on the floor and in the sessions as I would like because, for me, LTNY has become mostly meetings. On the one hand, that doesn’t help me answer your question as completely as I could but, on the other hand, it’s good for ALM because it shows that there’s business being conducted. A big difference between this year and last year (which may be reflective of our activity at BIA, but others have said it as well), is that there has been more substantive discussions and deal-making than in the past. And, I think that’s what you ultimately want from an industry conference.

Also, and I’m not sure if this is because of attrition or consolidation within the industry, but there seems to be more differentiation among the exhibitors at this year’s show. It used to be that I would walk around LegalTech with outside investors who are often people not from the industry and they would comment that “it seems like everybody does the same thing”. Now, I think you’re starting to see real differentiation, not just the perception of differentiation, with exhibitors truly offering solutions in niche and specialized areas.

As for whether ALM should consider moving the show, absolutely! It seems as though the last few years that has been one of the conversation topics among many vendors as they’re setting up before LegalTech as they ask “why is this happening again” with the snow and what-not. We’ve certainly had some logistics problems the past couple of years.

I do think there is something nice about having the show early in the year with people having just returned from the holidays, getting back into business near the beginning of Q1. It is a good time as we’re not yet too distracted with other business, but I think that it would probably be smart for ALM to explore moving LTNY to maybe the beginning of spring. Even a one-month move to the beginning of March could help. I would definitely keep the show in New York and not move the location; although, I would think that they could consider different venues besides the Hilton without affecting attendance. While some exhibitors might say keep it at this time of year to coordinate with their release schedules, I would say that’s a legacy software answer. Being in the SaaS world, we have updates every few weeks, or sooner, so I think with the new Silicon Valley approach to building software, it shouldn’t be as big a deal to match a self- created release schedule. Marketing creates that schedule more than anything else.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I think that they’re going to pass Congress. I’ve been focusing on the changes related to preservation as it seems that most noteworthy cases, especially those involving Judge (Shira) Scheindlin, involve a preservation mistake somewhere. For us at BIA, we feel the Rules changes are quite a validation of what we’re doing with respect to requiring counsel to meet early to discuss discovery issues, and to force the issue of preservation to the forefront. Up until these changes, only savvy and progressive counsel were focused on how legal hold and preservation was being handled and making sure, for example, that there wasn’t some question eight months down the road about some particular batch of emails. The fact that it is now codified and that’s part of the pre-trial “checklist” is very important in creating efficiencies in discovery in general and it’s great for BIA, frankly, because we build preservation software. It validates needing an automated system in your organization which will help you comply.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

I hate to sound pessimistic, and obviously I’m generalizing from my experience, but it feels like attorneys are less interested in learning about eDiscovery and more interested in being able to rely on some sort of solution, whether that solution is software or a service provider, to solve their problems. It’s a little bit of a new “stick your head in the sand” attitude. Before, they ignored it; now, they just want to “find the right wrench”. It’s not always just one wrench and it’s not that easy. It is important to be able to say “we use this software and that software and this vendor and here’s our process” and rely on that, but the second step is to understand why you are relying on that software and that vendor. I think some lawyers will just say “great, I’ll buy this software or hire this vendor and I’m done” and check that check box that they now have complied with eDiscovery but it’s important to do both – to purchase the right software or hire the right vendor AND to understand why that was done.

Certainly, vendors may be part of the problem – depending upon how they educate. At BIA, we promote TotalDiscovery as a way of not having to worry about your preservation issues, not having data “fall through the cracks” and that you’ll have defensible processes. We do that but, at the same time, we also try to educate our clients too. We don’t just say “use the software and you’re good to go”, we try to make sure that they understand why the software benefits them. That’s a better way to sell and attorneys feel better about their decision to purchase software when they fully understand why it benefits them.

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

As I already mentioned, BIA has TotalDiscovery, our SaaS-based preservation software and we are about to release what we call “real-time processing”, which effectively allows for you to go from defensible data collections to searching that collected data in minutes. So, you can perform a remote collection and, within a few minutes of performing that collection, already start to perform eDiscovery caliber searches on that data. We call it the “time machine”. In the past, you would send someone out to collect data, they would bring it back and put it into processing software, then they would take the processed data and they’d search it and provide the results to the attorneys and it would be a three or four week process.

Instead, our remote collection tool lets you collect “on the fly” from anywhere in the world without the logistics of IT, third-party experts and specialized equipment and this will add the next step to that, which is, after collecting the data in a forensically sound manner, almost immediately TotalDiscovery will allow you to start searching it. This is not a local tool – we’re not dropping agents onto someone’s machine to index the entire laptop, we’re collecting the data and, using the power of the cloud and new technology to validate and index that data at super high speeds so that users (corporate legal departments and law firms) can quickly perform searches, view the documents and the hit highlights, as well as tag and export documents and data as needed. It changes the way that the corporate user handles ECA (early case assessment). They get defensible collection and true eDiscovery processing in one automated workflow. We announced that new release here at LegalTech, we’ll be releasing it in the next few weeks and we’re very excited about it.

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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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: eDiscovery Trends

This is the first of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year 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™. 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 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 are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

LTNY seemed reasonably well attended this year and I think it was a good show. I have noticed a drop in the number of listed exhibitors though, from 225 a couple of years ago to 199 this year. Not sure if that’s a reflection of consolidation in the industry or providers simply choosing to market to prospects in other ways. I guess we’ll see. Nonetheless, I thought there were several good sessions, especially the three judges’ sessions that addressed key cases, the rules changes and general problems with discovery. I liked the fact that those were free and available to all attendees, not just paid ones. Not surprisingly, those sessions were very well attended.

Overall, I thought the primary focus of this show’s curriculum in three areas: information governance (which had its own educational track at the show), cybersecurity and data privacy. With the amazing pace at which Big Data is growing, I expect information governance to be a major topic for some time to come, especially with regard to the use of technology to manage growing data volumes. And, as we discussed in this blog a couple of weeks ago, data breaches continue to be on the rise and we’ve already had a major one involving over 80 million records this year. That’s also going to continue to be a major focus.

One issue at the show that I think affected several attendees was the sudden lack of meeting space. The Hilton got rid of its lobby lounge, replacing it with a smaller executive lounge limited to hotel guests. And, ALM booked up the Bridges Bar for private events throughout the show. Meetings and discussions are a big part of LTNY and I hope ALM will take that into account next year and at least make the Bridges Bar available for meetings.

As for whether ALM should consider moving LTNY to a different time of year, there are pros and cons to that. As a person who missed the show entirely last year due to weather and travel issues and was delayed a few hours this year, it would be nice to minimize the chance of weather delays. On the other hand, I suspect that part of the reason that the show is in the winter is that it’s less costly to host then. Certainly, vendors would need an advanced heads up of at least a year if ALM were to decide to move the show to a different time of year. I don’t expect that to happen, despite the recent travel issues for remote attendees.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I’m not an attorney and am no expert on the rules, but, based on everything that I’ve heard, it sounds as though they should pass. I know that large organizations are counting on Rule 37(e) to reduce their preservation burden. I think whether it will or not will depend on judges’ interpretation of Rule 37(e)(2) (which enables more severe sanctions “only upon finding that the party acted with the intent to deprive another party of the information’s use”). That section may result in lesser sanctions in at least some cases, but we’ll see. At eDiscovery Daily, we’ve covered over 60 cases per year each of the past three years, so at some point in a year or two, it will be interesting to look back at trends and what they show.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

I think it’s still a battle. We continue to work with a lot of firms whose attorneys lack basic eDiscovery fundamentals and we continue to provide education through this blog and consulting to attorneys to assist them with technical language in requests for production to ensure that they receive the most useful form of production to them, native files with included metadata. I think it’s imperative for providers like us to continue to do what we can to simplify the discovery process for our clients – through education and through streamlining of processes and process improvement. That’s what our corporate mission is and it continues to be a major focus for CloudNine.

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

Well, speaking of has “anything been done in the past year to improve the situation”, in November, we released CloudNine’s new easy-to-use Discovery Client application to automate the processing and uploading of raw native data into our CloudNine platform. Many of our clients have struggled with having data dumped on their desk at 4:00 on a Friday afternoon and having to fill out forms, swap emails and play phone tag with vendors to get the data up quickly so that they can review it over the weekend. With CloudNine’s Discovery Client, they can get data processed and loaded themselves without having to contact a vendor, whether it is load ready or not.

The application will extract data from archives such as ZIP and PST files, extract metadata, extract and index text (and OCR documents without text) render native files to HTML and identify duplicates based on MD5HASH value. The application will also generate key data assessment analytics such as domain categorization to enable attorneys to develop an understanding of their data more quickly. And, we are just about to release a new version of the Discovery Client that will enable clients to simply process the data and retrieve the processed data to load into their own preferred platform (if it’s not CloudNine), so we can support you even if you use a different review platform.

Our do-It-yourself features such as loading your own data, adding your own users and fields, accessing audit logs and setting user rights gives our clients unique control of their review process and makes it easier for them to understand eDiscovery and feel in control of the process. Simplifying discovery and taking the worry out of it (as much as possible) is what CloudNine is all about.

Thanks, Brad, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.

2014 eDiscovery Case Law Year in Review, Part 4

As we noted yesterday, Wednesday and Tuesday, eDiscoveryDaily published 93 posts related to eDiscovery case decisions and activities over the past year, covering 68 unique cases! Yesterday, we looked back at cases related to privilege and inadvertent disclosures, requests for social media, cases involving technology assisted review and the case of the year – the ubiquitous Apple v. Samsung dispute. Today, let’s take a look back at cases related to sanctions and spoliation.

We grouped those cases into common subject themes and will review them over the next few posts. Perhaps you missed some of these? Now is your chance to catch up!

SPOLIATION / SANCTIONS

I’ll bet that you won’t be surprised that, once again, the topic with the largest number of case law decisions related to eDiscovery are those related to sanctions and spoliation issues. Of the 68 cases we covered this past year, 28 percent of them (19 total cases) related to sanctions and spoliation issues. Sometimes requests for sanctions are granted, sometimes they’re not. Here they are.

Plaintiff Sanctioned After its “Failure to Take the Most Basic Document Preservation Steps”: In SJS Distribution Systems, Inc. v. Sam’s East, Inc., New York Magistrate Judge Robert M. Levy found the plaintiff’s failure to take “the most basic document preservation steps,” including issuing a litigation hold – “even after it discovered the packaging nonconformities and filed this action” – constituted gross negligence. As a result, an adverse inference instruction sanction was issued against the plaintiff and the defendant was awarded its costs and attorney’s fees associated with its motion to compel.

Sanctions Awarded when Defendant Failed to Preserve Relevant Evidence: In Zest IP Holdings, LLC v. Implant Direct Manufacturing, LLC., California Magistrate Judge William V. Gallo granted the Plaintiff’s motion for sanctions because parties are “required to preserve evidence relevant to litigation and to prevent spoliation.” Judge Gallo found that the Defendant “failed to preserve multiple documents that are relevant to Plaintiff’s claims with the requisite culpable state of mind to support a finding of spoliation of evidence”.

Search Process for ESI Called into Question, but Court Denies Sanctions for Plaintiff: In Brown v. West Corp., the plaintiff filed a motion to compel, claiming the defendant had been insufficient in its handling of searching for Electronically Stored Information (ESI) relevant to discovery. The plaintiff additionally contested a prior order from a magistrate judge, requiring the defendant to explain its search processes to the defendant. Ultimately, Nebraska Senior District Judge Lyle E. Strom denied the requested sanctions and rejected the challenge to the prior order.

Bad Faith Violations in Discovery Lead to Sanctions for Defendant: Regarding the case In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, the defendants’ repeated failure to preserve and produce documents during discovery was found to be in bad faith. The defendants were ordered to produce the documents, or to explain why they couldn’t be produced, and to pay a hefty fine plus the plaintiff’s costs and fees for pursuing discovery motions. The order left room for additional future sanctions, should the bad faith behavior continue.

Clawback Rights Upheld and Plaintiff Sanctioned for Refusal to Comply Concerning Inadvertently Produced Privileged Documents: In RIPL Corp. v. Google Inc., seven discovery-related motions were heard concerning this trademark infringement action. The various motions to seal, compel, enforce, and sanction were filed after the parties had entered into a stipulated protective order. Washington District Judge Ricardo S. Martinez granted in part, denied in part, and deferred in part the various motions.

Sanctions Denied over Destruction of Audio Evidence in Discrimination Lawsuit: In Sokn v. Fieldcrest Cmty. Unit School Dist. No. 8, the plaintiff filed a motion for default and sanctions relating to spoliation of evidence with a federal court, after a district court issued a Report and Recommendation (R&R) to deny the motion. Illinois Senior District Judge Joe Billy McDade ultimately declined to impose sanctions, due to a lack of evidence regarding the timing of alleged spoliation, and the plaintiff’s inability to establish bad faith on the part of the defendants.

Plaintiff Sanctioned for Spoliation of Digital Evidence in Sexual Harassment Lawsuit: In Calderon v. Corporacion Puertorrique a de Salud, the plaintiff was found to have violated his duty to preserve evidence during the discovery phase of this sexual harassment lawsuit. Sanctions were imposed, though not to the extent requested by the defendants.

Use of a Bulk File Changer to Manipulate Metadata Leads to Sanctions for Defendant: In T&E Investment Group, LLC v. Faulkner, Texas District Judge Jorge A. Solis upheld the earlier recommendation of the Magistrate Judge to order an adverse inference sanction, along with monetary sanctions, against the defendant for manipulation of metadata.

Defendants – and Defendants’ Counsel – Sanctioned for Delays in Producing ESI: In Knickerbocker v Corinthian Colleges, Washington District Judge James L. Robart imposed sanctions against the defendants and the defendants’ counsel for their delays in producing Electronically Stored Information (ESI) during discovery, despite the fact that spoliation of evidence was ultimately avoided.

Court Refuses to Dismiss Spoliation Claim Due to Defendant’s Failure to Produce Key Native File with Metadata: In Raines v. College Now Greater Cleveland, Inc., Ohio District Judge James S. Gwin refused to dismiss the plaintiff’s claim of tortious spoliation of evidence due to the defendant’s failure to produce the metadata associated with a key report authored by the plaintiff.

Court Denies Sanctions for Deletion of “Smoking Gun” Email, Grants Defendants’ Motion for Summary Judgment: In the case In re Text Messaging Antitrust Litig., Illinois District Judge Matthew F. Kennelly not only denied the plaintiffs’ request for an adverse inference sanction against the defendants for destroying emails, but also granted the defendants’ motion for summary judgment, as the plaintiffs failed to provide any supporting circumstantial evidence to meet their burden of proof.

Failure to Preserve Cloud-Based Data Results in Severe Sanction for Defendant: In Brown v. Tellermate Holdings, Magistrate Judge Terence Kemp granted plaintiffs’ motion for judgment and motion to strike, ruling that the defendant could not “present or rely upon evidence that it terminated the Browns’ employment for performance-related reasons” and enabling the plaintiffs to use documents produced by the defendant “designated as attorneys’-eyes-only” to be used by the plaintiffs “without restriction”, due to the defendant’s failure to preserve or produce data from their Salesforce.com database.

Texas Supreme Court Reverses Spoliation Ruling, Remands Case for New Trial: In Brookshire Bros., Ltd. v. Aldridge, the Supreme Court of Texas determined “that imposition of the severe sanction of a spoliation instruction was an abuse of discretion” in the trial court, reversed the court of appeals’ judgment and remanded the case for a new trial.

Circuit Court Affirms Denial of Sanctions Over Spoliation by Defendant: In Automated Solutions Corp. v. Paragon Data Sys., Inc., the Sixth Circuit court affirmed the holdings of the district court, rejecting the plaintiff’s arguments that the district court abused its discretion by denying plaintiff’s motion for spoliation sanctions due to defendant’s failure to preserve information on a hard drive and server. The circuit court also affirmed the ruling by both the magistrate and district judge that the defendant’s back-up tapes were not subject to the duty to preserve.

Court Grants Motion for Spoliation Sanctions Due to Data that is “Less Accessible”: In Mazzei v. Money Store, New York Magistrate Judge Ronald L. Ellis granted the plaintiff’s motion for spoliation sanctions against the defendant, ordering the defendant to bear the cost of obtaining all the relevant data in question from a third party as well as paying for plaintiff attorney fees in filing the motion.

Failure to Preserve Data on Various Devices Causes Special Master to Recommend Default Judgment: In Small v. University Medical Center of Southern Nevada, Special Master Daniel B. Garrie, calling the defendant’s widespread failure to preserve data a “mockery of the orderly administration of justice”, recommended that the court enter an order of default judgment, along with further sanctions, in favor of the plaintiffs.

Plaintiff Slips, But Defendant Takes the Fall: In Riley v. Marriott Int’l, New York Magistrate Judge Marian W. Payson agreed with the plaintiffs that spoliation of data had occurred when the defendant failed to preserve video surveillance and “sweep logs” after one of the plaintiffs slipped and fell in the defendant’s hotel garage and that the defendant was at least grossly negligent for not preserving the information. However, the judge denied the plaintiffs request for summary judgment, granting an adverse inference instruction instead.

The Watergate 18 Minute Gap in Audio Recordings Has Nothing on This Case: In Novick v. AXA Network, LLC, New York Magistrate Judge Kevin Nathaniel Fox granted the plaintiff’s request for sanctions against the defendant, awarding an adverse inference jury instruction for several weeks of spoliated audio recordings and also awarding “reasonable attorney’s fees and costs” associated with the motion as well as retaking several depositions.

Finding Defendant’s Destruction of Documents to be “Planned, Repeated and Comprehensive”, Court Awards Judgment to Plaintiff: In Regulatory Fundamentals Group v. Governance Risk Management Compliance, New York District Judge Katherine B. Forrest granted the plaintiff’s motion for sanctions and ordered that judgment be entered for the defendant’s “planned, repeated, and comprehensive” destruction of highly-relevant documents.

That concludes our look back at 68 cases from last year – the most we’ve ever covered! Do you think discovery issues are being disputed more than ever before? If so, do you think the new Federal rules changes (once they’re implemented) will reverse that trend? 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. eDiscoveryDaily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.

Want an Automated, Easy and Inexpensive Way to Process Your Data? Read On – eDiscovery Trends

A couple of months ago, we had a laugh at Ralph Losey’s post that took a humorous look at the scenario where it’s Friday at 5 and you need data processed to be reviewed over the weekend.  It was a funny take on a real problem that most of us have experienced from time to time.  But, there may be a solution to this problem that’s automated, easy and inexpensive.

Anytime we talk about something that relates to our company, CloudNine Discovery, we always add the “shameless plug warning” to let people know that the topic relates to our software or a service we offer.  If you’re a regular reader of our blog, you know it doesn’t happen that often.  But, we have just made a major announcement that we believe will interest many of you.

Today, we are officially announcing the release of OnDemand Discovery®, our new application that enables you to upload your native data and have it processed and loaded directly into OnDemand®, our cloud-based online review tool.

It’s a 100% automated upload process that includes native file extraction from container files (such as Outlook PSTs and ZIP Files), metadata & text extraction and indexing, OCR of image files, duplicate identification and HTML creation, streamlining the process to get started reviewing documents for discovery.  The process automatically notifies you when we’ve received your data and then again when we’ve loaded and indexed it and when all processing (including advanced analytics for early data assessment) is complete.  So, you never have to wonder about the status of your processing job.

It’s ideal for situations where you receive data late on a Friday afternoon and have to get it ready to review over the weekend and also ideal for preparing small batches of files for review without having to run them through cumbersome processing software built for multiple gigabytes, not a small batch of files.  OnDemand Discovery is designed to handle two megabytes, two gigabytes or two hundred gigabytes or more!

There are three easy steps to give it a try:

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

For more information, feel free to check out our press release on our news page here.  You can also contact me at daustin@cloudnincloudnine.comm for more information as well.

And, 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.

Be Afraid, Be Very Afraid – eDiscovery Horrors!

Today is Halloween.  Every year at this time, because (after all) we’re an eDiscovery blog, we try to “scare” you with tales of eDiscovery horrors.  This is our fifth year of doing so, let’s see how we do this year.  Be afraid, be very afraid!

Did you know that overlaying Bates numbers on image-only Adobe PDF files causes the text of the image not to be captured by eDiscovery processing applications?

What about this?

Finding that the information was relevant and that the defendants “acted with a culpable state of mind” when they failed to preserve the data in its original form, New York Magistrate Judge Ronald L. Ellis granted the plaintiff’s motion for spoliation sanctions against the defendant, ordering the defendant to bear the cost of obtaining all the relevant data in question from a third party as well as paying for plaintiff attorney fees in filing the motion.

Or this?

It’s Friday at 5:00 and I need 15 gigabytes of data processed to review this weekend.

How about this?

Ultimately, it became clear that the defendant had not exported or preserved the data from salesforce.com and had re-used the plaintiffs’ accounts, spoliating the only information that could have addressed the defendant’s claim that the terminations were performance related (the defendant claimed did not conduct performance reviews of its sales representatives).  As a result, Judge Kemp stated that the “only realistic solution to this problem is to preclude Tellermate from using any evidence which would tend to show that the Browns were terminated for performance-related reasons”…

Or maybe this?

Could an “unconscionable” eDiscovery vendor actually charge nearly $190,000 to process 505 GB and host it for three months?  Could another vendor charge over $800,000 to re-process and host data (that it had previously hosted) for approximately two months?  Yes, in both cases (though, at least in the second case, the court disallowed over $700,000 of the billed costs).

Scary, huh?  If the possibility of additional processing charges for your PDF files, sanctions because you didn’t preserve data in its original format or preserve it in your cloud-based system or inflated eDiscovery vendor charges scares you, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Then again, if it really is Friday at 5:00 and you need 15 gigabytes of data processed to review this weekend (inexpensively, no less), maybe you should check this out.

Of course, if you seriously want to get into the spirit of Halloween, click here.  This will really terrify you!  (Rest in Peace, Robin)

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

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.

How Mature is Your Organization in Handling eDiscovery? – eDiscovery Best Practices

A new self-assessment resource from EDRM helps you answer that question.

A few days ago, EDRM announced the release of the EDRM eDiscovery Maturity Self-Assessment Test (eMSAT-1), the “first self-assessment resource to help organizations measure their eDiscovery maturity” (according to their press release linked here).

As stated in the press release, eMSAT-1 is a downloadable Excel workbook containing 25 worksheets (actually 27 worksheets when you count the Summary sheet and the List sheet of valid choices at the end) organized into seven sections covering various aspects of the e-discovery process. Complete the worksheets and the assessment results are displayed in summary form at the beginning of the spreadsheet.  eMSAT-1 is the first of several resources and tools being developed by the EDRM Metrics group, led by Clark and Dera Nevin, with assistance from a diverse collection of industry professionals, as part of an ambitious Maturity Model project.

The seven sections covered by the workbook are:

  1. General Information Governance: Contains ten questions to answer regarding your organization’s handling of information governance.
  2. Data Identification, Preservation & Collection: Contains five questions to answer regarding your organization’s handling of these “left side” phases.
  3. Data Processing & Hosting: Contains three questions to answer regarding your organization’s handling of processing, early data assessment and hosting.
  4. Data Review & Analysis: Contains two questions to answer regarding your organization’s handling of search and review.
  5. Data Production: Contains two questions to answer regarding your organization’s handling of production and protecting privileged information.
  6. Personnel & Support: Contains two questions to answer regarding your organization’s hiring, training and procurement processes.
  7. Project Conclusion: Contains one question to answer regarding your organization’s processes for managing data once a matter has concluded.

Each question is a separate sheet, with five answers ranked from 1 to 5 to reflect your organization’s maturity in that area (with descriptions to associate with each level of maturity).  Default value of 1 for each question.  The five answers are:

  • 1: No Process, Reactive
  • 2: Fragmented Process
  • 3: Standardized Process, Not Enforced
  • 4: Standardized Process, Enforced
  • 5: Actively Managed Process, Proactive

Once you answer all the questions, the Summary sheet shows your overall average, as well as your average for each section.  It’s an easy workbook to use with input areas defined by cells in yellow.  The whole workbook is editable, so perhaps the next edition could lock down the calculated only cells.  Nonetheless, the workbook is intuitive and provides a nice exercise for an organization to grade their level of eDiscovery maturity.

You can download a copy of the eMSAT-1 Excel workbook from here, as well as get more information on how to use it (the page also describes how to provide feedback to make the next iterations even better).

The EDRM Maturity Model Self-Assessment Test is the fourth release in recent months by the EDRM Metrics team. In June 2013, the new Metrics Model was released, in November 2013 a supporting glossary of terms for the Metrics Model was published and in November 2013 the EDRM Budget Calculators project kicked off (with four calculators covered by us here, here, here and here).  They’ve been busy.

So, what do you think?  How mature is your organization in handling eDiscovery?  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.

Proximity, Not Absence, Makes the Heart Grow Fonder – Best of eDiscovery Daily
 

God Save the Queen!  Today is our first full day in London and we’re planning to visit The Tower of London, which is only about a thousand years old.  For the next two weeks except for Jane Gennarelli’s Throwback Thursday series, we will be re-publishing some of our more popular and frequently referenced posts.  Today’s post is a topic that has come up often as I work with clients and have referenced frequently over the years.  Enjoy!

Recently, I assisted a large corporate client where there were several searches conducted across the company’s enterprise-wide document management systems (DMS) for ESI potentially responsive to the litigation.  Some of the individual searches on these systems retrieved over 200,000 files by themselves!

DMS systems are great for what they are intended to do – provide a storage archive for documents generated within the organization, version tracking of those documents and enable individuals to locate specific documents for reference or modification (among other things).  However, few of them are developed with litigation retrieval in mind.  Sure, they have search capabilities, but it can sometimes be like using a sledgehammer to hammer a thumbtack into the wall – advanced features to increase the precision of those searches may often be lacking.

Let’s say in an oil company you’re looking for documents related to “oil rights” (such as “oil rights”, “oil drilling rights”, “oil production rights”, etc.).  You could perform phrase searches, but any variations that you didn’t think of would be missed (e.g., “rights to drill for oil”, etc.).  You could perform an AND search (i.e., “oil” AND “rights”), and that could very well retrieve all of the files related to “oil rights”, but it would also retrieve a lot of files where “oil” and “rights” appear, but have nothing to do with each other.  A search for “oil” AND “rights” in an oil company’s DMS systems may retrieve every published and copyrighted document in the systems mentioning the word “oil”.  Why?  Because almost every published and copyrighted document will have the phrase “All Rights Reserved” in the document.

That’s an example of the type of issue we were encountering with some of those searches that yielded 200,000 files with hits.  And, that’s where proximity searching comes in.  Proximity searching is simply looking for two or more words that appear close to each other in the document (e.g., “oil within 5 words of rights”) – the search will only retrieve the file if those words are as close as specified to each other, in either order.  Proximity searching helped us reduce that collection to a more manageable number for review, even though the enterprise-wide document management system didn’t have a proximity search feature.

How?  We wound up taking a two-step approach to get the collection to a more likely responsive set.  First, we did the “AND” search in the DMS system, understanding that we would retrieve a large number of files, and exported those results.  After indexing them with an eDiscovery review application that has more precise search alternatives (at CloudNine Discovery, we use OnDemand®), we performed a second search on the set using proximity searching to limit the result set to only files where the terms were near each other.  Then, tested the results and revised where necessary to retrieve a result set that maximized both recall and precision.

The result?  We were able to reduce an initial result set of 200,000 files to just over 5,000 likely responsive files by applying the proximity search to the first result set.  And, we probably saved $50,000 to $100,000 in review costs – on a single search.

I also often use proximity searches as alternatives to phrase searches to broaden the recall of those searches to identify additional potentially responsive hits.  For example, a search for “Doug Austin” doesn’t retrieve “Austin, Doug” and a search for “Dye 127” may not retrieve “Dye #127”.  One character difference is all it takes for a phrase search to miss a potentially responsive file.  With proximity searching, you can look for these terms close to each other and catch those variations.

So, what do you think?  Do you use proximity searching in your culling for review?  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.

Does Size Matter? – Best of eDiscovery Daily

Vive la France!  Today is our third full day in Paris and we’re planning to have lunch at the Eiffel Tower, which is really large.  For the next two weeks except for Jane Gennarelli’s Throwback Thursday series, we will be re-publishing some of our more popular and frequently referenced posts.  Today’s post is one that has generated a lot of discussion over the years.  Enjoy!

I admit it, with a title like “Does Size Matter?”, I’m looking for a few extra page views.  😉

I frequently get asked how big does an ESI collection need to be to benefit from eDiscovery technology.  In a recent case with one of my clients, the client had a fairly small collection – only about 4 GB.  But, when a judge ruled that they had to start conducting depositions in a week, they needed to review that data in a weekend.  Without culling the data and using OnDemand® to manage the linear review, they would not have been able to make that deadline.  So, they clearly benefited from the use of eDiscovery technology in that case.

But, if you’re not facing a tight deadline, how large does your collection need to be for the use of eDiscovery technology to provide benefits?

I recently conducted a webinar regarding the benefits of First Pass Review – aka Early Case Assessment (ECA), or a more accurate term (as George Socha points out regularly), Early Data Assessment.  One of the topics discussed in that webinar was the cost of review for each gigabyte (GB).  Extrapolated from an analysis conducted by Anne Kershaw a few years ago (and published in the Gartner report E-Discovery: Project Planning and Budgeting 2008-2011), here is a breakdown:

Estimated Cost to Review All Documents in a GB:

  • Pages per GB:                   75,000
  • Pages per Document:        4
  • Documents Per GB:           18,750
  • Review Rate:                    50 documents per hour
  • Total Review Hours:          375
  • Reviewer Billing Rate:       $50 per hour

Total Cost to Review Each GB:      $18,750

Notes: The number of pages per GB can vary widely.  Page per GB estimates tend to range from 50,000 to 100,000 pages per GB, so 75,000 pages (18,750 documents) seems an appropriate average.  50 documents reviewed per hour is considered to be a fast review rate and $50 per hour is considered to be a bargain price.  eDiscovery Daily provided an earlier estimate of $16,650 per GB based on assumptions of 20,000 documents per GB and 60 documents reviewed per hour – the assumptions may change somewhat, but, either way, the cost for attorney review of each GB could be expected to range from at least $16,000 to $18,000, possibly more.

Advanced culling and searching capabilities of tools like OnDemand can enable you to cull out 70-80% of most collections as clearly non-responsive without having to conduct attorney review on those files.  If you have merely a 2 GB collection and assume the lowest review cost above of $16,000 per GB, the use of an ECA tool to cull out 70% of the collection can save $22,400 in attorney review costs.  Is that worth it?

So, what do you think?  Do you use eDiscovery technology for only the really large cases or ALL cases?   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.

Don’t Get “Wild” with Wildcards – Best of eDiscovery Daily
 

Vive la France!  Today is our second full day in Paris and we’re planning to visit Versailles, which Marie Antoinette loved so much, she lost her head.  For the next two weeks except for Jane Gennarelli’s Throwback Thursday series, we will be re-publishing some of our more popular and frequently referenced posts.  Today’s post is one that we published on our very first day and have referenced frequently over the years.  Enjoy!

Several months ago, I provided search strategy assistance to a client that had already agreed upon several searches with opposing counsel.  One search related to mining activities, so the attorney decided to use a wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining”.

That one search retrieved over 300,000 files with hits.

Why?  Because there are 269 words in the English language that begin with the letters “min”.  Words like “mink”, “mind”, “mint” and “minion” were all being retrieved in this search for files related to “mining”.  We ultimately had to go back to opposing counsel and negotiate a revised search that was more appropriate.

How do you ensure that you’re retrieving all variations of your search term?

Stem Searches

One way to capture the variations is with stem searching.  Applications that support stem searching give you an ability to enter the root word (e.g., mine) and it will locate that word and its variations.  Stem searching provides the ability to find all variations of a word without having to use wildcards.

Other Methods

If your application doesn’t support stem searches, Morewords.com shows list of words that begin with your search string (e.g., to get all 269 words beginning with “min”, go here – simply substitute any characters for “min” to see the words that start with those characters).  Choose the variations you want and incorporate them into the search instead of the wildcard – i.e., use “(mine or “mines or mining)” instead of “min*” to retrieve a more relevant result set.

Some applications let you select the wildcard variations you wish to use.  OnDemand® enables you to type in the wildcard string, display all the words – in your collection – that begin with that string, and select the variations on which to search.  As a result, you can avoid all of the non-relevant variations and limit the search to the relevant hits.

So, what do you think?  Have you ever been “burned” by wildcard searching?  Do you have any other suggested methods for effectively handling them?  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.

An Insufficient Password Will Leave You Exposed – eDiscovery Best Practices

In the first year of our blog (which now has over 1,000 posts!), we published a post regarding the importance of a strong password.  Given recent events with the Home Depot data breach and several celebrities’ accounts being hacked on Apple’s iCloud, it seems timely to revisit and update the topic.

As a cloud software provider, we at CloudNine Discovery place a premium on the security of our clients’ data.  For example, the servers hosting data for our OnDemand® platform are housed in a secured, SAS 70 Type II certified Tier 4 Data Center in Houston (which is where our headquarters is).  The security at this data center is military grade: 24 x 7 x 365 onsite security guards, video surveillance, biometric and card key security required just to get into the building.  Not to mention a building that features concrete bollards, steel lined walls, bulletproof glass, and barbed wire fencing.

Pretty secure, huh?  However, no matter how secure a system is, whether it’s local to your office or stored in the “cloud”, an insufficient password that can be easily guessed can allow hackers to get in and steal your data.  Some dos and don’ts:

Dos:

  • If you need to write passwords down, write them down without the corresponding user IDs and keep the passwords with important documents like your passport, social security card and other important documents you’re unlikely to lose.  Or, better yet, use a password management application that encrypts and stores all of your passwords.
  • Mnemonics make great passwords.  For example, “I work for CloudNine Discovery in Houston, Texas!” could become a password like “iw4C9diht!”. (by the way, that’s not a password for any of my accounts, so don’t even try)  😉
  • Change passwords every few months.  Some systems require this anyway.  You should also change passwords immediately if your laptop (or other device that might contain password info) is stolen.

Don’ts:

  • Don’t use the same password for multiple accounts, especially if they have sensitive data such as bank account or credit card information.
  • Don’t email passwords to yourself – if someone is able to hack into your email, then they have access to those accounts as well.
  • Personal information may be easy to remember, but it can also be easily guessed, so avoid using things like your kids’ names, birthday or other information that can be guessed by someone who knows you.
  • As much as possible, avoid logging into sensitive accounts when using public Wi-Fi as it is much easier for hackers to tap into what you’re doing in those environments.  Checking your bank balance while having a latte at Starbucks is not the best time.

The best and most difficult passwords to hack generally have the following components – many systems, including OnDemand (we require at least three of these) – require one or more of these:

  • Length: Good passwords are at least eight characters in length.  Longer passwords may be more difficult to enter, but you get used to entering them quickly,
  • Upper and Lower Case: Include at least one upper case and one lower case character.  For best results, don’t capitalize the first character (harder to guess),
  • Number: Include at least one number.  If you want to be clever, “1’ is a good substitute for “i”, “5” for “s”, “4” for “for”, etc.
  • Special Character: Also, include at least one special character, for best results, not at the beginning or end of the password.

When you follow the best practices above, your password should be much more difficult to hack, keeping you from feeling “exposed”.

So, what do you think?  How secure are your passwords?  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.