Our Insights on eDiscovery

Read on to learn more about the latest trends and insights in the world of digital discovery.
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eDiscovery Case Law: District Court Judge Affirms $1 Million Sanction to Pappas in Victor Stanley
 eDiscovery Case Law: District Court Judge Affirms $1 Million Sanction to Pappas in Victor Stanley 150 150 CloudNine

One of the first posts ever published in eDiscovery Daily was this one, where defendant Mark Pappas, President of Creative Pipe, Inc., was ordered by Magistrate Judge Paul W. Grimm to “be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney’s fees and costs. Upon appeal, District Court Judge Marvin J. Garbis declined to adopt the order regarding incarceration, then in January of this year, Judge Grimm entered an order awarding a total of $1,049,850.04 in attorney’s fees and costs. Naturally, the award was appealed.

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eDiscovery Trends: You Have to Be Certifiable to Work in eDiscovery
 eDiscovery Trends: You Have to Be Certifiable to Work in eDiscovery 150 150 CloudNine

In any industry, it becomes important to be able to gauge the knowledge and capabilities of your service provider. Certification builds a client’s trust and confidence in the service provider. While no industry standard certification has emerged for eDiscovery professionals – yet – some independent certification programs are in various stages of implementation to measure proficiency with eDiscovery best practices. One program that is already in place today to verify eDiscovery competency is the Association of Certified E-Discovery Specialists® (ACEDS™) Certified E-Discovery Specialist (CEDS) certification program.

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eDiscovery Trends: More On the Recommind Patent Controversy
 eDiscovery Trends: More On the Recommind Patent Controversy 150 150 CloudNine

Perhaps the most controversial story discussed in the eDiscovery community in quite some time is the controversy regarding the patent recently announced by Recommind for Predictive Coding via press release entitled, Recommind Patents Predictive Coding, issued on June 8. I haven’t seen this much backlash against a company or individual since last summer when LeBron James’ decision to leave the Cleveland Cavaliers for the Miami Heat (and the subsequent championship-like celebration that he and his teammates conducted before the season). How did that turn out? 😉

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eDiscovery Case Law: Downloading Confidential Information Leads to Motion to Compel Production
 eDiscovery Case Law: Downloading Confidential Information Leads to Motion to Compel Production 150 150 CloudNine

The North Dakota District Court has recently decided in favor of a motion to compel production of electronic evidence, requiring imaging of computer hard drives, in a case involving the possible electronic theft of trade secrets.

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eDiscovery Best Practices: Avoiding eDiscovery Nightmares: 10 Ways CEOs Can Sleep Easier
 eDiscovery Best Practices: Avoiding eDiscovery Nightmares: 10 Ways CEOs Can Sleep Easier 150 150 CloudNine

I found this article in the CIO Central blog on Forbes.com from Robert D. Brownstone – it’s a good summary of issues for organizations to consider so that they can avoid major eDiscovery nightmares. The author counts down his top ten list David Letterman style (clever!) to provide a nice easy to follow summary of the issues. Here’s a summary recap, with my ‘two cents’ on each item.

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eDiscovery Trends: If You Use Auto-Delete, Know When to Turn It Off
 eDiscovery Trends: If You Use Auto-Delete, Know When to Turn It Off 150 150 CloudNine

Federal Rule of Civil Procedure 37(f), adopted in 2006, is known as the “safe harbor” rule. While it’s not always clear to what extent “safe harbor” protection extends, one case from a few years ago, Disability Rights Council of Greater Washington v. Washington Metrop. Trans. Auth., D.D.C. June 2007, seemed to indicate where it does NOT extend – auto-deletion of emails.

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eDiscovery Best Practices: Message Thread Review Saves Costs and Improves Consistency
 eDiscovery Best Practices: Message Thread Review Saves Costs and Improves Consistency 150 150 CloudNine

Insanity is doing the same thing over and over again and expecting a different result. But, in ESI review, it can be even worse when you get a different result. Most email messages are part of a larger discussion, which could be just between two parties, or include a number of parties in the discussion. To review each email in the discussion thread would result in much of the same information being reviewed over and over again. Instead, message thread analysis pulls those messages together and enables them to be reviewed as an entire discussion.

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eDiscovery Trends: eDiscovery Malpractice Case Highlights Expectation of Higher Standards
 eDiscovery Trends: eDiscovery Malpractice Case Highlights Expectation of Higher Standards 150 150 CloudNine

Friday, we noted that competency ethics was no longer just about the law and that competency in eDiscovery best practices is expected from the attorneys and any outside providers they retain. An interesting article from Robert Hilson at ACEDS™ discusses what may be the first eDiscovery malpractice case ever filed against a law firm (McDermott Will & Emery) for allegedly failing to supervise contract attorneys that were hired to perform the client’s work and to protect privileged client records.

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eDiscovery Best Practices: Competency Ethics – It’s Not Just About the Law Anymore
 eDiscovery Best Practices: Competency Ethics – It’s Not Just About the Law Anymore 150 150 CloudNine

A few months ago at LegalTech New York, I conducted a thought leader interview with Tom O’Connor of Gulf Coast Legal Technology Center, who didn’t exactly mince words when talking about the trend for attorneys to “finally tak[e] technology seriously”. As he noted, “lawyers are finally trying to take some time to try to get up to speed – whining and screaming pitifully all the way about how it’s not fair, and the sanctions are too high and there’s too much data. Get a life, get a grip. Use the tools that are out there that have been given to you for years. The ethical responsibilities of counsel these days includes competently directing and managing eDiscovery.”

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eDiscovery Trends: Think Before You Hit Send
 eDiscovery Trends: Think Before You Hit Send 150 150 CloudNine

It’s not the only instance of a one character typo possibly ending a career; instead, it may simply be the latest. Unless you’re living under a rock, you’re probably aware of the “Twittergate” story involving Rep. Anthony Weiner (D-N.Y.), where he initially claimed that a lewd photo posted via Twitter was posted by a hacker to his account, then subsequently admitted this past Monday that he, in fact, posted that picture. Many are calling for him to resign from his Congressional position. The irony is that a one-letter typo may turn out to be his undoing.

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