eDiscovery Daily Blog

• January 29, 2013

Today is the start of LegalTech® New York 2013 (LTNY) and, for the third year in a row, eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next three days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the New York area, I encourage you to check out the show – there are a number of sessions (both paid and free) available and over 225 exhibitors providing information on their products and services, including (shameless plug warning!) CloudNine Discovery™ at booth 2006.

While at the show, we will also be interviewing several industry thought leaders to see what they think are the significant trends for 2013 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 65 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

10:30 – 11:45 AM:

eDiscovery 3.0: Emerging Practices

Advances in technology continue to change the way eDiscovery is performed. Most notably, predictive coding, or “technology assisted review,” is becoming more widely accepted as part of the document review process. There continue to be questions about how it should be used, what level of disclosure is required, and the practical impact that it will have on the eDiscovery workflow. In addition, the strategies, implications, and challenges for predictive coding are still being addressed, prompting a reconsideration to a quality control approach. This presentation will offer several strategies for improving quality control while using predictive coding for document review.

Presented by: Manfred Gabriel, Forensic Principal, KPMG LLP.

Risk and Reward in the Cloud: Case Law and Cost Savings

As more organizations opt for cloud-based solutions to lower costs or meet stringent privacy and security requirements, questions on collection, legal jurisdiction, and privacy are beginning to arise.? This session explores emerging case law around the cloud and covers topics such as data ownership, multi-tenanted environments, and cross-border litigation.?? You’ll further learn how cloud computing can provide new levels of security, collaboration, agility, speed, and cost savings, while defensibly enforcing comprehensive information governance.

Panelists are: Ken Rashbaum , Esq., Principal, Rashbaum Associates, LLC; Tim Carroll, Partner, Perkins Coie’s Commercial Litigation Practice.  Moderator: George Tziahanas, SVP, Legal and Compliance Solutions, Autonomy, an HP company.

Statistical Sampling to Enhance & Defend Your E-Discovery Practice

Although the complexities of statistics may seem daunting to many lawyers, statistical sampling is fast becoming essential to the discovery process. In e-discovery, statistical sampling can help increase confidence, reduce cost and improve defensibility. But the advantages of sampling are rarely realized, simply because most lawyers are not statisticians. This panel will discuss what in-house counsel needs to know about statistical sampling in e-discovery matters, including:

• The basics of statistical sampling
• Why in-house counsel should consider incorporating statistical sampling into the e-discovery process
• Opportunities to use statistical sampling
• Key decisions counsel must make when using statistical sampling

Panelists are: Pallab Chakraborty, Director of eDiscovery, Oracle; Gordon V. Cormack, Professor at the David R. Cheriton School of Computer Science, University of Waterloo; Maura R. Grossman, Counsel, Wachtell, Lipton, Rosen & Katz; Jim Wagner, Chief Executive Officer, DiscoverReady LLC.  Moderator: Maureen O’Neill, Vice President of Discovery Strategy, DiscoverReady LLC.

Cooperation: Choosing Your Battles

Mock hearing format

Many feel that protracted discovery battles waste time for no purpose. This session will provide attendees with an understanding of which disagreements to resolve with cooperation, and which are worth fighting on behalf of your client.

Panelists are: Anne Kershaw, Founder, A. Kershaw, P.C., [Role: Attorney]; Gail Gottehrer, Partner, Axinn, Veltrop & Harkrider LLP, [Role: Attorney]; David J. Waxse, United States Magistrate Judge, District of Kansas.  Facilitator: Brooke J. Oppenheimer, eDiscovery Attorney, Axinn, Veltrop & Harkrider LLP.

12:30 – 1:30 PM:

Facing the Cliff: Can Proportionality Avert the eDiscovery Crisis?

Proportionality has been touted by industry cognoscenti as the bridge over the chasm of troubling eDiscovery disputes. Despite the hype, many doubt that proportionality can prevent courts, clients or counsel from plummeting into the abyss of spiraling costs and lengthy delays that often characterize discovery. For example:

• Can predictive coding facilitate proportional discovery when lawyers are unwilling to share their training set of documents?
• Should proportionality standards apply to the preservation of ESI to help address the high costs of retaining so much data?
• Will the proportionality rule ever be used to rein in lawyers and judges that have distorted the standard of discovery from reasonableness to perfection?

Please join us as Philip Favro, Discovery Counsel, Symantec Corp. leads a distinguished panel of experts in a lively debate on these issues

Panelists are: Shawn Cheadle, Esq., General Counsel, Military Space, Lockheed Martin Space Systems Co.; Wendy Curtis, Esq., Corporate Counsel, Akin Gump Strauss Hauer & Feld LLP; Hon. Frank Maas, United States Magistrate Judge, Southern District of New York; Ariana J. Tadler, Esq., Partner, Milberg LLP. Moderator: Philip Favro, Discovery Counsel, Symantec Corp.

2:00 – 3:15 PM:

Predictive Coding – Emerging Best Practices

As predictive coding makes its way from the Nerdsville to Main Street, the industry has had to develop new methods and procedures to accommodate and leverage the technology. Similarly, new protocols have been drafted, negotiated and agreed. In this session, proposed guidelines for a predictive coding engagement will be presented. The panel members, drawing on their pioneering experience in predictive coding projects, will discuss and comment on the proposed guidelines, touching on legal and protocol considerations, technological capabilities and constraints, and requirements for statistical validity.

Panelists are: Bennett B. Borden, Chair, Electronic Discovery and Information Governance Section, Williams Mullen; Stephanie A. “Tess” Blair, Partner, Morgan, Lewis & Bockius LLP; Sean M. Byrne, Principal, Byrne Law Group; Thomas C. Gricks III, Partner, Schnader Harrison Segal & Lewis LLP. Moderator: Warwick Sharp, Vice President Marketing and Business Development, Equivio.

Key Ethical Concerns for Lawyers in e-Discovery

Attorneys conducting and supervising extensive electronic discovery find themselves negotiating an evolving ethical landscape that is impacted by ever increasing data volumes, a lack of bright line rules as to how and when those data volumes must be preserved, and constant changes in how the resultant data can be reviewed and produced using traditional and technology assisted review methodologies. This panel will address how lawyers can recognize and comply with their ethical obligations while:

• Carrying out and supervising the duty to preserve relevant ESI
• Meeting and conferring on e-discovery issues with the appropriate level of transparency and cooperation.
• Managing the processing, review, and production of large volumes of documents and information.
• Employing sophisticated e-discovery software tools and processes including technology assisted review
• Accessing and using information from social media sites in discovery.

Panelists are: Michelle Spak, Senior Counsel, Duke Energy; M. James Daley, Partner, Daley & Fey, LLP; Jim Wagner, Chief Executive Officer, DiscoverReady LLC; Eric Cottrell, Partner, Parker Poe; Elizabeth Hyon, Assistant Vice President, Legal Barclays Capital; Craig Cannon, Global Discovery Counsel, Bank of America. Moderator: Matt Miller, SVP, Marketplace Leader & IP Practice Group Leader, DiscoverReady LLC.

Interoperability and Data Reuse in the ERA of Big Data and eDiscovery

IBM and HP both make the bold claim that 90% of all data ever created was produced in the last two years. Given the data deluge, corporate legal departments are starting to embrace the concept of interoperability including the need to capture institutional knowledge, seek greater team collaboration, repurpose and reuse data, and promote greater consistency in business process to achieve broader institutional benefits. The growth of data has also led to eDiscovery becoming a key part of the corporate information governance paradigm.

Learn from our experts on how to manage big data. Topics may include:

• How enterprise information assets can be efficiently accessed and used by corporate legal departments while retaining and leveraging legal work product.
• How technology and process can be combined to improve team collaboration and guard against institutional memory loss.
• New technologies beyond clustering and predictive coding that the big data revolution may bring to the eDiscovery toolkit

Predictions on what the big data revolution and convergence with information governance mean for eDiscovery, corporate legal spend and operational efficiency.

Panelists are: David Leone, Esq., Director of LSS, Saul Ewing LLP; Chris Mellen, Digital Forensics PM, Digital Forensics & Advanced Analytics, SAIC; Chad Papenfuss, Litigation Support Manager, FTC; Susan Sparrow, Senior Program Manager General Dynamics Information Technology, HSCD, Justice Programs. Moderator: Anita Engles, VP of Product Marketing, Daegis.

3:45 – 5:00 PM:

The Unforseen: eDiscovery Project Management

The panel will discuss the project-management challenged that result from unforeseen events in e-discovery projects. We will discuss a diverse range of practical topics, including:

• How do you respond to change in scope after the document review has started?
• How do you adapt your TAR strategy when instructions change?
• How to use prioritization, data analysis, and workflow to adopt to changes in budget or time available?

Panelists are: Matt Clarke, Shareholder, Ryley Carlock & Applewhite Document Control Group; Michael Fluhr, Discovery Counsel, Carroll Burdick & McDonough; Meagan Thwaites, Litigation Counsel, Chief Litigation Office, Boston Scientific Corporation; Vincent Miraglia, Chief Counsel, International Paper Company; Renato Opice Blum, CEO and Partner, Opice Blum, Bruno, Abrusio e Vainzof. Moderator: Manfred Gabriel, Forensic Principal, KPMG LLP.

State of the E-Discovery Software & Service Market

For those of us who remember e- discovery in its infancy, we can appreciate the growth of the industry. But no one back then predicted the absolute explosion of data at such mind boggling rates, the challenges it imposes, the changing business models in the fight for survival, progress on the information governance front and the growing pains practitioners and vendors across the board have faced. The analyst community will help us look back at major impacts and make predictions into the future, with their unbiased and pragmatic advice for practicing professionals.

Panelists are: Vivian Tero, Program Director Governance, Risk & Compliance (GRC) Infrastructure, IDC; Karl Schieneman, President, Review Less, LLC; Barry Murphy, Co-Founder, Principal Analyst, eDJ Group, Inc; Laura A. Zubulake, Author of Zubulake’s e-Discovery: The Untold Story of my Quest for Justice.

Predictive Coding for Investigations & Regulatory Matters

Over the last two years, there has been an avalanche of commentary on how automated review and predictive coding tools can and will be used to supplement or replace current e-discovery processes. This year, we’ve seen corporate and law firm clients actually dip their toes into the pool of automation, only to face resistance from opponents, mostly due to lack of understanding of automation.

We will focus our discussion on how to tackle:

• Your duty to explain your use of automation in various cases, including as a way to organize data in a “produce all” request vs. a targeted production
• Regulators’ use of Technology Assisted Review (“TAR”) on inbound productions, and how it may affect your outbound strategies
• Best use cases for using predictive coding in internal investigations such as insider trading, where those under investigation are likely to use code rather than keywords

Panelists are: Marla Bergman, Vice President, Assistant General Counsel, Legal and Internal Audit, Goldman Sachs; Jim Wagner, Chief Executive Officer, DiscoverReady LLC. Moderator: Amy Hinzmann, SVP – Financial Services Practice Group Leader, Marketplace Leader, DiscoverReady LLC.

What is a Quality eDiscovery Process and How Do You Defend It?

The lack of formalized standards in eDiscovery poses challenges with respect to both methodology and defensibility. With the high stakes of litigation, growing expectations on the part of the judiciary, and the increasing frequency of spoliation motions, the components of the eDiscovery process continue to be susceptible to attack. As a result, litigants are often forced to focus on defense of their process, rather than the merits. Moreover, courts are frequently asked to evaluate the reasonableness of a particular process in retrospect, only after a party has made a significant investment in technology and resources. These issues should be considered and faced head on, from the inception of a matter.

This session is designed to provide practical guidance on how to develop a defensible eDiscovery process and how to withstand an attack. It will focus on the most frequently challenged aspects of the eDiscovery process and address such questions as:

• What aspect of the eDiscovery process are most at risk of challenge?
• What steps can parties take proactively to avoid an attack on their process?
• What showing must be made before an eDiscovery process can be attacked?
• How are these challenges likely to be made in motion practice and case management conferences?
• What do parties need to submit to the court in defense of their process?
• What standards govern judicial scrutiny and evaluation?
• Is there a need for formal process standards and, if so, is it possible to develop them at this point in time?
• What impact would potential new standards have on the vendor and legal community?

Panelists are: David Horrigan, Esq., Analyst, E-Discovery and Information Governance, 451 Research, a division of The 451 Group; Jason R. Baron, Director of Litigation, National Archives and Records Administration; Lauren Schwartzreich, E- Discovery Counsel, Littler Mendelson; Mira Edelman, Discovery Counsel, Google. Moderator: Doug Stewart, EnCE, Vice President of Technology and Innovation, Daegis.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

eDiscoveryDaily will also be “tweeting” periodically throughout LTNY, so feel free to check out our updates at twitter.com/Cloud9Discovery.

So, what do you think?  Are you planning to attend LTNY this year?  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.