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Today’s Webcast Will Help You Learn About Key eDiscovery Case Law in 2019 (so far) and How it Affects You: eDiscovery Webcasts

Shark Week on the Discovery Channel continues, which means Case Week on the eDiscovery Channel (a.k.a., eDiscovery Daily) continues as well.  So far, 2019 has been another interesting year with notable and important case law decisions related to eDiscovery best practices. What do you need to know about the cases to avoid mistakes made by others and save time and money for your clients?  In today’s webcast, you can catch up on twenty-two (!) cases from the first half of the year and find out what they mean to you!

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Key eDiscovery Case Law Review for First Half of 2019.  This CLE-approved* webcast session will cover key case law covered by the eDiscovery Daily Blog during the first half of 2019 to identify trends that lawyers should consider for their own practices. Key topics include:

  • Can ESI related to an unsolved murder case be compelled to be produced in a related civil case?
  • Is the use of biometric fingerprint scanning technology an invasion of privacy?
  • When can non-parties be compelled to produce ESI in litigation?
  • Are social media photos that you didn’t post discoverable if you’ve been tagged in them?
  • Can sanctions be so important that you fight NOT to have a claim against you dismissed?
  • Is being forced to provide your cell phone password the “death knell” for fifth amendment protection?
  • Should a case ruling be reversed if a judge is Facebook friends with one of the parties?
  • Should discovery be stayed while a motion to dismiss is being considered?
  • Does Rule 37(e) eliminate the potential for obtaining sanctions for spoliation of ESI?

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn from past eDiscovery case law decisions, this is the webcast for you!

So, what do you think?  Do you think case law regarding eDiscovery issues affects how you manage discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Effective Information Governance Takes Initiative – eDiscovery Best Practices

Despite the fact that I missed LegalTech New York (LTNY) last week because of travel difficulties, eDiscoveryDaily is still conducting our fourth annual LTNY thought leader interview series again this year.  I owe a BIG thank you to the thought leaders who were gracious enough to reschedule with me this week and early next week.  We will publish the schedule for posting the interviews early next week.  Stay tuned!

One of the best side-benefits I get from conducting thought leader interviews for the blog is that I get to learn about new programs in the industry that promote best practices.  I learned about one such new program in my thought leader interview with Jason R. Baron, Of Counsel with Drinker Biddle & Reath LLP and former long-time Director of Litigation for the U.S. National Archives and Records Administration (NARA).  Through my interview with Jason, I learned that the Information Governance Initiative (IGI), a cross-disciplinary consortium and think tank focused on advancing information governance, launched last week.

As announced on their expansive launch press release, the IGI will publish research, benchmarking surveys, and guidance for practitioners on its website. The research will be freely available, and the group will also be providing an online community designed to foster discussion and networking among practitioners.

The IGI was founded by Barclay T. Blair, who is the group’s executive director and Bennett B. Borden, who is the organization’s chair, with Jason R. Baron as co-chair. Jay Brudz is general counsel.

As Jason stated on the press release, “I see the IGI’s mission as sounding a call to arms that current information practices are unsustainable in our increasingly big data world, and that IG solutions exist that better leverage new technology and smart practices. Unless corporations and government agencies take more concerted actions, information overload and mismanagement may pose a serious threat to the economy and even to the justice system itself.”

The IGI identifies several leading providers as supporters and is also partnering with several organizations to bring IG stakeholders from different disciplines together to work on the information governance problem, including The CFO Alliance and ARMA International.

Best of all, it’s free to join and receive updates from the IGI and to gain access to their publications when they are available.  Click here to join.

Based on the thought leader interviews that I’ve conducted so far, Information Governance was the most talked about trend at this year’s LTNY.  It will be interesting to see what impact the IGI has on providing best practices and guidance for managing information.

So, what do you think?  Are you interested in the IGI? Will you join?  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.

eDiscovery Daily Is Thirty! (Months Old, That Is)

Thirty months ago yesterday, eDiscovery Daily was launched.  It’s hard to believe that it has been 2 1/2 years since our first three posts that debuted on our first day.  635 posts later, a lot has happened in the industry that we’ve covered.  And, yes we’re still crazy after all these years for committing to a daily post each business day, but we still haven’t missed a business day yet.  Twice a year, we like to take a look back at some of the important stories and topics during that time.  So, here are just a few of the posts over the last six months you may have missed.  Enjoy!

In addition, Jane Gennarelli has been publishing an excellent series to introduce new eDiscovery professionals to the litigation process and litigation terminology.  Here is the latest post, which includes links to the previous twenty one posts.

Thanks for noticing us!  We’ve nearly quadrupled our readership since the first six month period and almost septupled (that’s grown 7 times in size!) our subscriber base since those first six months!  We appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  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.

ARMA/Forrester Survey: Only One in Eight Records Managers Trusts Their ESI – eDiscovery Trends

According to the Forrester Research and ARMA International Records Management Online Survey, Q3 2012, only 12 percent of records managers are “very confident” that, if challenged, their organization could demonstrate that their electronically stored information (ESI) is “accurate, accessible, complete and trustworthy”.  That’s less than one in eight.

The report, co-authored by ARMA and Forrester Research, contains the results of a survey of 354 records managers.

Some of the less than optimistic comments from the report include: “Records managers report abysmally low e-discovery confidence…This bleak data point represents an even lower e-discovery confidence rate than captured in past surveys…[S]urvey data show that integrated legal hold – a critical component needed for successful defensible disposition – is simply missing in organizations.”

And this: “Organizations aren’t sure of the business value or legal obligations to preserve content so they simply continue to accumulate digital debris, slowing down overtaxed systems, adding to storage costs, and posing potential additional litigation and investigation burdens over time.”

Some of the reasons cited as obstacles to improved records management include:

  • Poor systems integration – 74 percent of respondents;
  • Inadequate budget – 73 percent;
  • Lack of experienced staff – 64 percent;
  • Outdated policies or procedures – 55 percent; and
  • Lack of clear leadership – 54 percent.

So, what are organizations doing to address the obstacles?  Here are some indications:

  • 40 percent of survey respondents expect that their organization’s overall records management spending will increase at least 5% from 2012 to 2013;
  • 71 percent currently have implementation plans underway, or plans to implement records management technology within the next year;
  • 81 percent consider an improvement in records management policy consistency an important objective for their organization.

A copy of the report is available here from Forrester Research for $499.

Since, according to the Compliance, Governance and Oversight Council (CGOC), information volume doubles every 18-24 months, you would think organizations would be making greater strides in implementing information governance programs.  Of course, many information governance industry initiatives are still in relative infancy, including the Information Governance Reference Model (IGRM) Project of the Electronic Discovery Reference Model (EDRM), which was started a mere two years ago (click here for information on their newest version).  It appears that organizations still have a long way to go to get their data under control.

So, what do you think?  What, if any, records management obstacles are your organization facing?  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.

EDRM Announces Version 3 of the IGRM for Information Governance – eDiscovery Trends

This week, the Electronic Discovery Reference Model (EDRM) Project, through its Information Governance Reference Model (IGRM) Project, announced today the release of version 3.0 of the IGRM.  As their press release notes, “The updated model now includes privacy and security as primary functions and stakeholders in the effective governance of information. This release of the IGRM reflects broad industry support and collaboration across the expert communities of ARMA International and CGOC (Compliance, Governance and Oversight Council).”

The importance of information governance to the eDiscovery process is clear – when organizations do not have a clear plan for managing their information and defensibly disposing of expired information at the right time, costs for managing that information to respond to discovery requests soar.  The IGRM Project’s mission is to “provide a common, practical framework enabling organizations to establish information governance programs that more effectively deal with the rising volume and diversity of information and the risks, costs, and complications this presents”.  Information Governance is an organization-wide process, affecting Legal, Records, IT and Business organizations within the organization.

The IGRM project was started a mere two years ago, in 2010.  Why does the IGRM exist?  Their early survey of corporate practitioners, conducted jointly with the CGOC, makes it clear:

  • 100% of respondents stated that defensible disposal was the primary purpose of information governance;
  • 66% of IT and 50% of RIM (records management) respondents said their current responsibility model for information governance was ineffective; and
  • 80% of respondents across Legal, IT, and RIM said they had little or very weak linkage between legal obligations for information/data and records management.

As the latest press release notes, “IGRM v3.0 now incorporates Privacy and Security as key stakeholders, reflecting the increasing importance of Privacy and Security duties and the efficiencies organizations can achieve when privacy and security efforts are more holistically integrated with other essential governance practices and programs.”  The diagram above reflects the change – there is a new stakeholder group in blue within the diagram, representing Privacy & Security.

As for other details detailing the IGRM v3.0 update, a white paper is available on the EDRM site (with a link available to download a PDF of the white paper).

EDRM (via the IGRM project) and CGOC have been busy on the Information Governance front this year, as noted by these past stories on our blog here, here and here.  Kudos to all involved in these efforts!

So, what do you think?  Where does your organization stand with regard to information governance efforts?  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.

eDiscovery Trends: EDRM and Statistical Sampling
 

I’ve been proud to be a member of The Electronic Discovery Reference Model (EDRM) for the past six years (all but the first year) and I’m always keen to report on activities and accomplishments of the various working groups within EDRM.  Since this blog was founded, we’ve reported on 1) the unveiling of the EDRM Data Set, which has become a standard for useful eDiscovery test and demo data, 2) the EDRM Metrics Privilege Survey (which I helped draft), to collect typical volumes and percentages of privileged documents throughout the industry, 3) Model Code of Conduct which focuses on the ethical duties of eDiscovery service providers, and 4) the collaboration between EDRM and ARMA and subsequent joint Information Governance white paper.  EDRM’s latest announcement yesterday is a new guide, Statistical Sampling Applied to Electronic Discovery, which is now available for review and comment. 

As EDRM notes in their announcement, “The purpose of the guide is to provide guidance regarding the use of statistical sampling in e-discovery contexts. Most of the material is definitional and conceptual, and is intended for a broad audience. The later material and the accompanying spreadsheet provide additional information, particularly technical information, to people in e-discovery roles who become responsible for developing further expertise in this area.”

The Guide is comprised of six sections, as follows:

  1. Introduction: Includes basic concepts and definitions, alludes to mathematical techniques to be discussed in more detail in subsequent sections, identifies potential eDiscovery situations where sampling techniques may be useful and identifies areas not covered in this initial guide.
  2. Estimating Proportions within a Binary Population: Provides some common sense observations as to why sampling is useful, along with a straightforward explanation of statistical terminology and the interdependence of sample size, margin of error/confidence range and confidence level.
  3. Guidelines and Considerations: Provides guidelines for effective statistical sampling, such as cull prior to sampling, account for family relationships, simple vs. stratified random sampling and use of sampling in machine learning, among others.
  4. Additional Guidance on Statistical Theory: Covers mathematical concepts such as binomial distribution, hypergeometric distribution, and normal distribution.  Bring your mental “slide-rule”!
  5. Examples Using the Accompanying Excel Spreadsheet: Describes an attached workbook (EDRM Statistics Examples 20120427.xlsm) that contains six sheets that include a notes section as well as basic, observed and population normal approximation models and basic and observed binomial methods to assist in learning these different sampling methods.
  6. Validation Study: References a Daegis article that provides an empirical study of sampling in the eDiscovery context.  In addition to that article, consider reading our previous posts on determining an appropriate sample size to test your search, how to generate a random selection and a practical example to test your search using sampling.

Comments can be posted at any of the EDRM Statistical Sampling pages, or emailed to the group at mail@edrm.net.  As a big proponent of statistical sampling as an effective and cost-effective method for verifying results, I’m very interested to see where this guide goes and how people will use it.  BTW, EDRM’s Annual Kickoff Meeting is next week (May 16 and 17) in St. Paul, MN – it’s not too late to become a member and help shape the future of eDiscovery with other industry leaders!

So, what do you think?  Do you perform statistical sampling to verify results within your eDiscovery process?  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.

eDiscovery Trends: Deidre Paknad on CGOC’s Information Lifecycle Governance Leader Reference Guide
 

Yesterday, we talked about the Information Lifecycle Governance Leader Reference Guide from the Compliance, Governance and Oversight Council (CGOC).  The guide provides a program for operationalizing an effective defensive disposal program for expired data, which is an increasingly important issue for many organizations as organizational data doubles every 18-24 months.

Deidre Paknad, Director of Information Lifecycle Governance (ILG) Solutions for IBM, is a well-known thought leader in the legal and information governance domain and one of the authors of the guide, as well as the founder of CGOC (and also a previous thought leader interviewee on this blog).  Deidre has also been a member of several Sedona Conference working groups since 2005 and has co-chaired the EDRM IGRM project since 2010.  I recently interviewed Deidre and asked her some questions regarding the goals for the guide, the target audience and how it fits in with other information governance initiatives in the industry.

Who is the target audience for this guide in terms of job functions and/or size of organization?

The guide is for companies and their Information Governance leaders who are looking to transform legal, records and IT practices to drive substantial cost savings and risk reduction.  It is for business leaders or stakeholders such as the Chief Information Officer (CIO), General Counsel (GC) and records managers who are looking for program models to define, operationalize and improve processes that enable defensible disposal of unnecessary data. The goal is to curb storage growth and lower costs associated with IT, eDiscovery and processing, to not only save money but also lower organizational risk going forward. Based on insight from 1700+ CGOC corporate practitioners, it is apparent that organizations with extensive preservation requirements due to litigation and regulation requirements who retain large amounts of data are in need of such a leadership guide.

Are there any success stories or examples of organizations using the principles described in this guide that you can provide?

Yes. We just had a very successful summit in February with more than 100 corporate practitioners (the proceedings documentation from the CGOC web site are available here).  Anthony Perkins of BNY Mellon provided the keynote speech regarding the high cost of information and how IT organizations are responding.  BNY Mellon and several others are setting new benchmarks and advancing ILG practices for defensible disposal that have become strategic enterprise initiatives.  Scott Bancroft of Novartis International also shared their experience in how they structured an effective governance program.  In the panel discussion, practitioners (such as Jason R. Baron of the National Archives and Records Administration, Eckhard Herych of Novartis and Mark Tabs and Thomas Zingale of UBS) shared their own experience and leadership on assessing process maturity to drive process improvement.  From those proceedings, you can see how Legal, RIM, IT and program office leaders (i.e., members of our target audience) share their experience to modernize their practices and collectively transform their enterprise processes for cost saving and risk reduction.

As this guide references the Information Governance Reference Model (IGRM) – which, of course, is a part of the Electronic Discovery Reference Model (EDRM) – how does this guide and the efforts of CGOC fit in with the EDRM-ARMA initiative?

We established CGOC in 2004 and it has grown to a community of over 1700 experts in retention, legal holds, discovery, and privacy exclusively for corporate practitioners. Its charter is to create a forum in which Legal, IT, RIM, Privacy and compliance executives can get the insight, interaction, and information they need to make good business decisions. CGOC fills the critical practitioners’ gap between ARMA and The Sedona Conference, providing the ability to move from theory to efficient practices. CGOC also provides educational seminars, benchmarking surveys, group workshops, an annual Summit and retreat, white papers by expert faculty, a professional networking website, and regional working groups to corporate litigation, discovery, privacy, records management and program office leaders and practitioners.  Membership in the forum is free to qualified executives.

What are your expectations/goals/hopes that you envision for how the guide is used and adopted?

In the fall of 2010, CGOC issued its Information Governance Benchmark Report, which presented findings from their first survey of legal, records management (RIM) and IT practitioners in Global 1000 companies. The report confirmed that CGOC members viewed defensible disposal as the most essential outcome of a good governance program  but revealed challenges with funding and cross organizational cooperation that impeded program launch or effectiveness. The ILG Guide now simply provides members with a construct for how to operationalize an effective program and overcome these barriers. By leveraging the guide, program leaders can clearly see the sixteen processes to coalesce Legal, RIM, Business, Privacy and IT processes to lower cost and risk. The impacts to the enterprise (and resulting costs) are high when legal, records and IT don't work in concert, and the cost of doing nothing is even higher.  Organizations can improve information economics by operationalizing their information lifecycle governance program using this guide, resulting in significant cost savings and reduced risk going forward.  We are excited to be able to provide such a guide to our member organizations.

Thanks, Deidre, 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.

eDiscovery Trends: CGOC’s Information Lifecycle Governance Leader Reference Guide

With all of the recent attention on technology-assisted review and current case law related to that subject, it’s sometimes easy to forget that most sanctions are issued because of failure to preserve potentially responsive data.  A sound Information Governance (aka Records Management) policy is the first step to enabling organizations to meet their preservation obligations by getting control of the data up front.  Organizations such as EDRM and ARMA have focused on Information Governance and have even collaborated on a January report on Information Governance.  Another organization focused on Information Governance is the Compliance, Governance and Oversight Council (CGOC).  In the fall of 2010, CGOC issued its Information Governance Benchmark Report, which presented findings from their first survey of legal, records management (RIM) and IT practitioners in Global 1000 companies.  Recently, CGOC developed a new guide for helping organizations with succeed in improving information and eDiscovery economics.

For most organizations, information volume doubles every 18-24 months and 90% of the data in the world has been created in the last two years. In a typical company in 2011, storing that data consumed about 10% of the IT budget. At a growth rate of 40% (even as storage unit costs decline), storing this data will consume over 20% of the typical IT budget by 2014.  Accumulating, storing and litigating data without value is simply no longer an economically viable proposition.  The 36 page Information Lifecycle Governance Leader Reference Guide (written by Deidre Paknad and Rani Hublou) provides a program for operationalizing an eff­ective defensive disposal program for expired data and overcome the barriers to do so.  It can be downloaded here from the CGOC site (if you don’t have a user account, you’ll have to create one, but it’s free).  The guide shows how to:

  • Define the economic and business objectives of an information governance program to quantify savings and ensure appropriate funding for change;
  • Establish a program strategy;
  • Structure an organization that aligns functional silos to ensure savings and business objectives are achieved;
  • Identify and improve the business processes for defensible disposal and risk reduction; and
  • Audit these processes to ensure systemic, sustainable change.

Aside from the Introduction and Conclusion, the guide is divided into five parts, as follows:

  • Defining Program Strategy: The focus is simple – to dispose of unnecessary data and keep only the data that has business utility or is subject to legal hold or regulatory record keeping requirements.
  • Setting Quantifiable Cost and Risk Reduction Goals: Setting goals with primary focus on how to lower storage and infrastructure costs from defensible disposal, lower risk through improved governance instrumentation and lower eDiscovery costs through governance instrumentation and lower enterprise data volume.  This section provides a particularly useful eDiscovery Cost Reduction section (page 13) that demonstrates the potential cost savings due to defensible disposal of unnecessary data and a Risk Reduction section (page 14) that provides a risk matrix to assess the risk level of each data process.
  • Operationalizing the Strategy: Putting the plan into place involves defining business objectives for the program and means for measuring achievement, defining processes and practices to achieve the objectives, establish accountability for outcomes and defining staff and instrumentation required to work the plan.
  • Program Leadership: For any program to be successful, you need buy in at the top.  That includes an Executive Committee (including the CIO, CFO, General Counsel), a Senior Advisory Group comprised of line of business leaders (division executives) to provide the staff­ and support needed to achieve the defined goals, a plan for achievement measurement and accountability and an execution timeline.
  • Process Maturity and Management: Each process should be assessed as to its level of maturity (from Level 1-ad hoc to Level 4-automated and cross-functional).  The effort required in each department to achieve the objectives should be clearly mapped out and an audit process should be established for confirming that the governance programs meet objectives and raising issues when there are issues.

All in all, the guide provides an excellent approach for organizations to address implementation of an information lifecycle governance program and illustrates the benefits and cost savings for doing so.  With organizational data doubling every 18-24 months, information governance costs for many organizations will skyrocket without an effective plan to manage the explosion of data.

So, what do you think?  Has your organization implemented an effective information governance program?  Does it have any of the components outlined in the CGOC guide?  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.

eDiscovery Daily Is Eighteen! (Months Old, That Is)
 

Eighteen months ago yesterday, eDiscovery Daily was launched.  A lot has happened in the industry in eighteen months.  We thought we might be crazy to commit to a daily blog each business day.  We may be crazy indeed, but we still haven’t missed a business day yet.

The eDiscovery industry has grown quite a bit over the past eighteen months and is expected to continue to do so.   So, there has not been a shortage of topics to address; instead, the challenge has been selecting which topics to address.

Thanks for noticing us!  We’ve more than doubled our readership since the first six month period, had two of our biggest “hit count” days in the last month and have more than quintupled our subscriber base since those first six months!  We appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Unfiltered Orange, Atkinson-Baker (depo.com), Litigation Support Technology & News, Next Generation eDiscovery Law & Tech Blog, InfoGovernance Engagement Area, Justia Blawg Search, Learn About E-Discovery, Ride the Lightning, Litigation Support Blog.com, ABA Journal, Law.com and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As we’ve done in the past, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

eDiscovery Trends: Is Email Still the Most Common Form of Requested ESI?

eDiscovery Trends: Sedona Conference Provides Guidance for Judges

eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth

eDiscovery Law: Model Order Proposes to Limit eDiscovery in Patent Cases

eDiscovery Case Law: Court Rules 'Circumstantial Evidence' Must Support Authorship of Text Messages for Admissibility

eDiscovery Best Practices: Cluster Documents for More Effective Review

eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?

eDiscovery 101: Simply Deleting a File Doesn’t Mean It’s Gone

eDiscovery Case Law: Facebook Spoliation Significantly Mitigates Plaintiff’s Win

eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases

eDiscovery Case Law: Court Grants Adverse Inference Sanctions Against BOTH Sides

eDiscovery Trends: ARMA International and EDRM Jointly Release Information Governance White Paper

eDiscovery Trends: The Sedona Conference International Principles

eDiscovery Trends: Sampling within eDiscovery Software

eDiscovery Trends: Small Cases Need Love Too!

eDiscovery Case Law: Court Rules Exact Search Terms Are Limited

eDiscovery Trends: DOJ Criminal Attorneys Now Have Their Own eDiscovery Protocols

eDiscovery Best Practices: Perspective on the Amount of Data Contained in 1 Gigabyte

eDiscovery Case Law: Computer Assisted Review Approved by Judge Peck in New York Case

eDiscovery Case Law: Not So Fast on Computer Assisted Review

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.

eDiscovery Trends: George Socha of Socha Consulting
 

This is the first of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends?
  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; last year 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 do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?

I may have said this last year too, but it holds true even more this year – if there's an emerging trend, it's the trend of people talking about the emerging trend.  It started last year and this year every person in the industry seems to be delivering the emerging trend.  Not to be too crass about it, but often the message is, "Buy our stuff", a message that is not especially helpful.

Regarding actual emerging trends, each year we all try to sum up legal tech in two or three words.  The two words for this year can be “predictive coding.”  Use whatever name you want, but that's what everyone seems to be hawking and talking about at LegalTech this year.  This does not necessarily mean they really can deliver.  It doesn't mean they know what “predictive coding” is.  And it doesn't mean they've figured out what to do with “predictive coding.”  Having said that, expanding the use of machine assisted review capabilities as part of the e-discovery process is a important step forward.  It also has been a while coming.  The earliest I can remember working with a client, doing what's now being called predictive coding, was in 2003.  A key difference is that at that time they had to create their own tools.  There wasn't really anything they could buy to help them with the process.

Which trend(s), if any, haven’t emerged to this point like you thought they would?

One thing I don't yet hear is discussion about using predictive coding capabilities as a tool to assist with determining what data to preserve in the first place.  Right now the focus is almost exclusively on what do you do once you’ve “teed up” data for review, and then how to use predictive coding to try to help with the review process.

Think about taking the predictive coding capabilities and using them early on to make defensible decisions about what to and what not to preserve and collect.  Then consider continuing to use those capabilities throughout the e-discovery process.  Finally, look into using those capabilities to more effectively analyze the data you're seeing, not just to determine relevance or privilege, but also to help you figure out how to handle the matter and what to do on a substantive level.

What are your general observations about LTNY this year and how it fits into emerging trends?

Well, Legal Tech continues to have been taken over by electronic discovery.  As a result, we tend to overlook whole worlds of technologies that can be used to support and enhance the practice of law. It is unfortunate that in our hyper-focus on e-discovery, we risk losing track of those other capabilities.

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

With regard to EDRM, we recently announced that we have hit key milestones in five projects.  Our EDRM Enron Email Data Set has now officially become an Amazon public dataset, which I think will mean wider use of the materials.

We announced the publication of our Model Code of Conduct, which was five years in the making.  We have four signatories so far, and are looking forward to seeing more organizations sign on.

We announced the publication of version 2.0 of our EDRM XML schema.  It's a tightened-up schema, reorganized so that it should be a bit easier to use and more efficient in the operation.

With the Metrics project, we are beginning to add information to a database that we've developed to gather metrics, the objective being to be able to make available metrics with an empirical basis, rather than the types of numbers bandied about today, where no one seems to know how they were arrived at. Also, last year the Uniform Task Billing Management System (UTBMS) code set for litigation was updated.  The codes to use for tracking e-discovery activities were expanded from a single code that covered not just e-discovery but other activities, to a number of codes based on the EDRM Metrics code set.

On the Information Governance Reference Model (IGRM) side, we recently published a joint white paper with ARMA.  The paper cross-maps the EDRMs Information Governance Reference Model (IGRM) with ARMA's Generally Accepted Recordkeeping Principles (GARP).  We look forward to more collaborative materials coming out of the two organizations.

As for Apersee, we continue to allow consumers search the data on the site for free, but we also are longer charging providers a fee for their information to be available.  Instead, we now have two sponsors and some advertising on the site.  This means that any provider can put information in, and everyone can search that information.  The more data that goes in, the more useful the searching process comes because.  All this fits our goal of creating a better way to match consumers with the providers who have the services, software, skills and expertise that the consumers actually need.

And on a consulting and testifying side, I continue to work a broad array of law firms; corporate and governmental consumers of e-discovery services and software; and providers offering those capabilities.

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!

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