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Electronic Discovery

If You Ever Have to Compare RFP Vendors, EDRM Has a New Calculator for You: eDiscovery Best Practices

Let’s face it, comparing bids from different eDiscovery vendors on an “apples to apples” basis can be difficult as each vendor seems to have its own unique pricing structure.  However, a new calculator from EDRM can help simplify the comparison process to identify the low cost provider.

The designer of the latest calculator is Casey Flaherty, former in-house counsel for Kia Motors America and founder of Procertas, a company offering training to corporate legal teams on improving efficiency and reducing costs.  This is the sixth budget calculator available from EDRM (we covered the previous five here, here, here, here and here).

Flaherty’s budget calculator is three sets of calculators in one. The Baseline Calculator sheet contains the client’s current pricing model. The Standard Calculator sheets compare vendors against each other and a baseline. The Proposed Calculator sheets – identified by a “(P)” in the sheet name – enable you to track additional savings vendors present that they believe they will be able to achieve. Each spreadsheet provides sample numbers to better understand how the workbook performs calculations, but Flaherty recommends that each user replace those with their own figures.

The current workbook provides several sample sheets, with the Standard Calculator and Proposed Calculator sheets named from #1 to #5 (add a “(P)” in the sheet name of the Proposed Calculator sheets and you get the idea.  Obviously, those sheets could be easily renamed to identify the vendors being considered in the RFP process and sheets can be easily added (and copied) or deleted as needed to reflect the total comparison.

Each sheet contains sections for Collection, Processing, Review and Production, with Assumptions, Pricing and Alternative Pricing sub-sections for each:

  • Collection: includes assumption options for tracking collection at the custodian, share drive, event, days, travel hours and/or GB basis;
  • Processing: includes assumption parameters for tracking initial ingested volume, filter rates for pre-process and ECA, tech/PM hours and tracking hosting for near-line data;
  • Review: is the most comprehensive section and tracks metrics for everything from reviewer and user licenses (not all providers charge those, so shop around) to consultation hours to support for tracking Technology Assisted Review (TAR) and even machine translation and bilingual review(!);
  • Production: includes tracking docs and GBs produced and provides options for tracking both native and TIFF productions.

The workbook is completely customizable, so if you’re good with Excel, you can add or remove categories as needed.  The workbook is not locked, so calculation cells are editable (either by design or accidentally) – again, if you’re good with Excel, you can lock down individual sheets or the entire workbook to lock down editing of calculation cells.  A terrific resource if you need to compare quotes from eDiscovery vendors for your project!

To download this calculator (or any or all of the previous five EDRM calculators), click here.

So, what do you think?  How do you handle evaluating bids from multiple eDiscovery vendors?   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. 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.

You’re More Likely to Be Hit by Lightning Than to Be Sanctioned for Non-Preservation of ESI: eDiscovery Best Practices

When it comes to eDiscovery topics, eDiscovery expert (and frequent thought leader interviewee on this blog) Craig Ball doesn’t hesitate to speak his mind and confront the (oftentimes) brutal truth.  In Craig’s latest post in his excellent Ball in Your Court blog, he does so in spades.

In Preservation and Proportionality, Craig sets the stage with a graphic showing a Lady Justice statue with a thumb holding down one end of the scales (I like it!).  He introduces the topic by stating:

“Litigants have been ignoring e-discovery obligations with impunity for so long they’ve come to think of it as an entitlement.  Protected from predators, few have evolved.  But now that opponents and courts are waking to this failure, those who’ve failed to adapt are feeling exposed. They don’t like it, and they want protection.  They call it ‘proportionality.’

Proportionality sounds wholesome and virtuous, like ‘patriotism’ or ‘faith;’ but like those wholesome virtues, it’s sometimes the refuge of scoundrels.”

But, without proportionality, how will organizations protect themselves against the “increased” threat of sanctions for spoliation?  Craig addresses that by debunking the myth:

“The much-ballyhooed ‘rise in sanctions’ is designed to mislead.   The solid metrics we have on spoliation sanctions prove that the risk of being sanctioned for negligent non-preservation remains miniscule (.00675% per a report from the Federal Judicial Center).  Put simply: In the United States, you are more likely to be hit by lightning than to be sanctioned for non-preservation of ESI.”

Noting that “the overwhelming majority of e-discovery sanctions decisions turn on venal acts like intentional destruction of evidence and contemptuous disregard of discovery obligations”, Craig decides to “tell it like it is: The claim that diligent, responsible litigants are being sanctioned for innocent e-discovery errors is hogwash.”

Craig then addresses how many organizations address their preservation obligations to avoid sanctions “by embracing monumental inefficiency in preservation instead of making sensible, defensible choices” and blaming the plaintiff for requesting the data (spoiler alert, it’s not the plaintiff’s fault).  “To the extent ‘proportionality’ is a byword for ‘let us err with impunity,’ it’s too soon in the evolution of e-discovery to be so resigned to incompetence.  If anything, we need more sanctions for incompetence, not more safe harbors”, Craig states.

Craig’s post continues to discuss the level of competence of lawyers preserving data, the efforts to use the proportionality argument and the court’s role in deciding (“proportionality shouldn’t be pressed into service as a “Get Out of Jail Free” card for botched preservation; but, it can prove instructive to courts weighing sanctions for failure to preserve relevant evidence”, he states).  In the end, it’s up to courts to “insist parties know how to use the scale and don’t put their thumbs on the pan” (of the scales of justice, that is).

By the way, this isn’t a recent sentiment of Craig’s spawned by the impending Federal rules changes this December, he notes that he wrote this post four years ago, but never posted it.  Interesting.

A link to his post is here.

So, what do you think?  Do you think we need more sanctions for incompetence and not just for willful destruction of ESI?   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. 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.

Legal Salaries on the Rise? That’s the Half of It: eDiscovery Trends

Robert Half, that is.

Robert Half’s 2016 Legal Salary Guide features salary ranges for more than 100 positions in the legal field and provides some other interesting statistics, as well.  According to the Guide, average starting salaries for lawyers at law firms are expected to increase 3.5 percent in 2016.  And, salaries for experienced litigation support and eDiscovery directors and managers are expected to rise even more than that.

The salary figures in the 2016 edition are based on a number of sources, most notably the thousands of full-time, temporary and project placements Robert Half’s staffing and recruiting professionals make each year. Here are some breakdowns:

  • Lawyers: Starting salaries for lawyers with 10-plus years’ experience are expected to increase 0 to 4.7 percent from 2015 (depending on the size of the firm). A lawyer with 10-plus years’ experience at a large firm (75+ lawyers) is expected to hit an average range of $194,250 to $279,500 annually.  First-year associates’ salaries are expected to increase 2.2 to 2.7 percent increase over 2015 projections.  Corporate in house counsel are expected to see average compensation gains of 2.2 to 3.7 percent over 2015 levels, with the more experienced in house counsel trending toward the top end of that range (average range of $185,250 to $259,750 annually).
  • Paralegals/Legal Assistants: Starting salaries for paralegals/legal assistants are expected to increase 0 to 4.0 percent from 2015. Senior legal assistants with 7+ years of experience are expected to make as much as $96,750 annually at large law firms.
  • Litigation Support/eDiscovery: Starting salaries for litigation support/eDiscovery directors and managers are expected to increase from 4 to 5.7 percent annually from 2015. The top end of the salary range for litigation support/eDiscovery directors with 10+ years of experience is $130,500.  Document coders also see an increase – 3.6 percent over 2015.

The guide also provides salary expectations for office managers, legal secretaries, legal specialists and contract and compliance administration positions for both law firms and corporate legal.  Not surprisingly, they’re all up.

Other notable statistics:

  • Lawyers’ top responses to the question “Aside from compensation or bonus, which of the following provides the best incentive for legal professionals to remain with a law firm/ company?” were as follows: Challenging work or variety of assignments (39 percent), Professional development opportunities (26 percent), Flexible work arrangements (20 percent).
  • 71 percent of lawyers said blended or hybrid paralegal/legal secretary positions are more common today than they were two years ago.
  • The top two practice areas that are expected to generate the greatest number of legal jobs in the next two years in the US are: Litigation (33 percent) and General Business/Commercial Law (26 percent).

The survey guide also provides an adjustment for various US cities across the country (obviously, salaries are much higher in New York (140 percent of the reported numbers for the different positions) than in Duluth, MN (79.6 percent).  For example, the top end of the salary range for litigation support/eDiscovery directors with 10+ years of experience in Houston (107.5 percent for my hometown) is actually $140,287 (just sayin’).  So, you can adjust the numbers based on local variances.  The guide even has a Canada section, eh?

The FREE 36 page PDF guide is available here.  Check it out.  Maybe you need a raise?

So, what do you think?  Do the numbers surprise you?  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. 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.

Court Denies Motion for Sanctions Against Veterinary Hospital for Spoliation of ESI: eDiscovery Case Law

In Grove City Veterinary Service, LLC et. al. v. Charter Practices International, LLC, 13-02276 (Aug. 18, 2015), Oregon Magistrate Judge John V. Acosta concluded that the plaintiffs had not met their burden of showing they are entitled to sanctions for spoliation of evidence by deleting one of the veterinarian’s archived work emails.

Case Background

In this breach of contract case between veterinarians and a veterinary hospital, during discovery for this case, one of the plaintiffs was required to search for and produce emails stored in his email archive responsive to the defendant’s requests for production.  In August 2014, the plaintiff attempted to access old emails stored in his email archive, but was unable to locate more than one-hundred folders of archived emails.  Later that month, the plaintiff contacted the defendant’s IT department for help finding the “missing” emails.  A member of the defendant’s IT department requested a time when he could come and assist the plaintiff. In the plaintiff’s response, he disclosed that he sought the emails “[r]egarding a legal matter”. Because the plaintiff’s request was in furtherance of a legal matter, the IT department referred the issue to the defendant’s legal department, which refused further assistance and advised the plaintiffs that the defendant was not responsible for locating documents responsive to its own discovery requests (eventually, however, the plaintiff noted that “some,” but not all, of the missing folders had repopulated to his archive inbox).

Based on the defendant’s refusal to perform the search, the plaintiffs moved for spoliation.  The defendant denied it was responsible for “missing” emails, and in their response, requested an award of attorney fees because of the plaintiffs’ “unjustified” motion for sanctions.

Judge’s Ruling

Noting that a defendant “may be subject to sanctions, particularly dispositive sanctions, only if it committed ‘willful’ spoliation of evidence”, Judge Acosta stated: “Here, Plaintiffs do not establish that the emails were willfully destroyed by CPI, or even that the emails were destroyed at all.”

The plaintiffs relied on a report by its computer forensic analyst to request sanctions for spoliation, but Judge Acosta disputed the reliability of his report, noting that he “produces no evidence which shows CPI’s IT department remotely accessed Baltzell’s computer without permission or tampered with Baltzell’s archived emails in any way”, that he “fails to disclose that, during his analysis of Baltzell’s computer, the computer was not logged into the CPI’s servers where the archived emails are stored” (which meant he wouldn’t have been able to access the files anyway) and that an “excerpt of the activity log showed that CPI IT last remotely accessed Baltzell’s computer on July 2, 2014, well before Baltzell had difficultly(sic) finding the emails in question.”  In addition, the defendant produced evidence that the missing emails were accessible in the plaintiff’s email archive, but that they had been “dragged and dropped” into a folder not typically associated with archived emails.  Judge Acosta concluded that the “absence of the activity log in the record is telling and suggests Jorgensen found no direct evidence of knowing wrongdoing by CPI.”

As a result, Judge Acosta denied the plaintiff’s request for sanctions.  He also denied the defendant’s attorney fees, because “the court cannot conclude Plaintiffs motion was ‘unjustified.’”

So, what do you think?  Was this an open and shut case?  Should the defendant have been awarded attorney fees?  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. 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.

Believe it or Not, Apple v. Samsung is Still Going Strong: eDiscovery Case Law

Remember, the Apple v. Samsung case?  We covered this case so much last year that it had its own category in our four part annual case law review (where we covered 68 unique cases!).  We took a break from covering it this year to focus on other cases where more significant eDiscovery rulings were taking place.  Nonetheless, it appears that Samsung may, just may, finally have to pay some damages to Apple for patent infringement.

According to Law 360 (subscription required), on Friday, U.S. District Court Judge Lucy Koh granted Apple’s motion for partial final judgment in the case that Apple lodged against Samsung in 2011 (almost as long as this blog has been around!).  “The court is bound to follow the Federal Circuit’s decree as the law of the case,” Judge Koh said in granting the motion.

The Federal Circuit last month rejected Samsung’s bid to delay implementation of an order that it pay Apple $548 million in damages while Samsung appeals the ruling to the U.S. Supreme Court.  In a brief order, a three-judge Federal Circuit panel denied Samsung’s motion asking the court to hold off on issuing its mandate while it petitions the high court for a review.  Samsung’s motion argued that a retrial on damages is likely and a stay would be more efficient, but Apple quickly argued that Samsung hadn’t given any reason why the Supreme Court would even agree to hear the case, let alone overturn the Federal Circuit’s ruling.

Apple won several battles with Samsung, including ultimately being awarded over $1 billion in verdicts (ultimately reduced to the current $548 million), as well as a $2 million sanction for the inadvertent disclosure of its outside counsel firm (Quinn Emanuel Urquhart & Sullivan LLP) commonly known as “patentgate”, but ultimately may have lost the war when the court refused to ban Samsung from selling products that were found to have infringed on Apple products (that is still being disputed in the courts, too).  This case has also had disputes over eDiscovery cost reimbursement and an adverse inference sanction for Samsung for failing to turn off “auto-delete” of emails after the case began.  In other words, this case is a legal blogger’s dream!  :o)

Samsung indicated in a filing on Friday that if Judge Koh entered partial final judgment, it would appeal the decision to the Federal Circuit and its outside counsel said during the hearing that Samsung retains the right to do so.  Apple’s outside counsel referred to a possible appeal as “frivolous” and Judge Koh remarked during the hearing “If you want to file a frivolous appeal, I guess that’s your right”.

In this case, nothing would be surprising, except for the case ending quickly, which it shows no signs of doing.

So, what do you think?  Have you been following Apple v. Samsung?    Will it ever end?  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. 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.

Five is Alive! eDiscovery Daily is Five Years Old!

Believe it or not, it has been five years ago yesterday since we launched the eDiscovery Daily blog!

When we launched five years ago on September 20, 2010, we told you to not get “wild” with wildcards and we published our first case law post about a case where the spoliator of data was actually threatened with jail time.  Since then, we’ve published over 418 additional posts about case law, involving more than 275 distinct cases!

Back then, our goal was to be a daily resource for eDiscovery news and analysis and we’ve continued to do so for five years.  If we were a child, we would be ready for kindergarten; if we were a dog, we would be 35 (in dog years).  We’ve had nearly 450,000 visits to the site and have published over 1,250 lifetime posts!  And, every post we have published is still available on the site for your reference, which has made eDiscovery Daily into quite a knowledgebase!  We’re quite proud of that.

Comparing our first three months of existence to now, we have seen traffic on our site grow an amazing 866%!  And now, we’re the only publication that is an EDRM Education partner.  As always, we have you to thank for all of that success!  Thanks for making the eDiscovery Daily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

As many of you know by now, 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!

Who is investing in eDiscovery Companies?  Here’s who – thanks to Rob Robinson.

Did you know that stolen health records can go for $10 each on the black market?

“Fuzzy” searching can help you find matches you might otherwise miss, but too much “fuzzy” can be a bad thing.

Signature logos can add a lot of overhead to the review process and can comprise 30% or more of an email collection.  Fortunately, there are options to address the issue.

The law firm holding your data may have suffered a breach at some point, but you may not know about it.

Earlier this year, an Arkansas lawyer claimed that he received “Trojans” with his document production from the Fort Smith police department.  And, by “Trojans”, I mean the malware kind, not the other kind.

By the way, unless Congress intervenes, new Federal Rules changes are going into effect this December.

And, if you use CCleaner (aka “Crap” Cleaner) to wipe responsive data off your drive, expect to be sanctioned for it.

This firm marked up reviewer billings over 500% (and that’s not the worst part).

If you need proof that technology assisted review can save money, perhaps this study can help.

Here are two cases on spoliation with the same spoliation claims (and even the same plaintiff), but with different outcomes.  Hmmm.

If you’re going to allow custodians to self-collect documents, you should be prepared to explain the process associated with that self-collection.

Should contract review attorneys receive overtime pay?  Are they actually performing legal work?  This case may set a precedent in that regard.

If you’re going to submit a 2,941 page privilege log, you’d better be able to demonstrate privilege.

Man’s best friend is starting to be used to assist with forensic data collections.

And, I haven’t even mentioned the Houston Astros and Ashley Madison data hacks.  Now I have.

This is just a sampling of topics that we’ve covered.  Hope you enjoyed them!

Thanks for the interest you’ve shown in the topics!  We 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!  On to the next five years!

Image courtesy of TriStar pictures (Short Circuit, 1986, slightly before this blog was first published)… :o)

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.

Get Ready for “E-Discovery Day” and a Milestone for LitSupport Guru: eDiscovery Trends

This is sort of a “two birds with one stone” post…

We have days to celebrate all sorts of things.  According to the website Days of the Year, yesterday was “Apple Dumpling Day” and today is “Respect Day”.  Now, eDiscovery enthusiasts have an event to look forward to – “E-Discovery Day”, on December 1st of this year.  Mark your calendars.

Brought to you by EDRM, Exterro, Actiance and Today’s General Counsel, E-Discovery Day (as stated in their website) is “an industry wide initiative aimed at promoting e-discovery awareness and education. E-Discovery Day will bring together a diverse set of professionals to share experiences, discuss key trends and offer best practices over a variety of mediums with the goal of facilitating and promoting e-discovery education to the entire legal and business community.”

George Socha, founder of EDRM, states that “E-discovery is going to be with us for the long haul, which means that all of us working to resolve disputes need to improve our e-discovery IQ. With its webinars, content and other events, E-Discovery Day offers each of us a great opportunity to do just that.”

Featured speakers include Socha, David Yerich, Director of eDiscovery for UnitedHealth Group and Bob Rohlf  Counsel at Exterro.  The site currently lists four webinar events, including:

  • 2015 E-Discovery Case Law: Sanction Cases You Need to Know
  • Taking Advantage of the New FRCP E-Discovery Amendments
  • Make Your Job Easier with E-Discovery Technology
  • 3 E-Discovery Trends You Need to Prepare for in 2016

The sessions are presented by Exterro and you can register for them on the site.  You can also submit an event for inclusion on the site as well, so it sounds as though additional events will be added.  You can sign up for the E-Discovery Day newsletter to receive updates, so if you do, you’ll presumably know about additional events as they add them.

For more information or to register for the newsletter or one (or more) of the events, click here.

BTW, it’s a good thing the event wasn’t scheduled for tomorrow – that’s one of my favorite days – “Talk Like a Pirate Day”.  That could have been awkward.

Also, a congrats to Amy Bowser-Rollins and her excellent blog, Litigation Support Guru, on celebrating their four year anniversary!  Amy’s blog is one of my favorites for litigation support best practices, several of which I’ve shared on this blog.  I also finally had the pleasure of meeting Amy at ILTA a few weeks ago, after having corresponded with her on several occasions.  Earlier this year, Amy had the guts to “quit her day job” and focus on litigation support education, which is great for our industry.  Keep up the great work, Amy!

Speaking of anniversaries, we have our own coming up over the weekend.  Stay tuned for our post on Monday!

So, what do you think?  Will “E-Discovery Day” catch on?  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. 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.

Plaintiff’s Continued Disputes with Curling Iron Manufacturer Getting Hairy: eDiscovery Case Law

In Wilson v. Conair Corp., 1:14-cv-00894-WBS-SAB (E.D. Cal. Aug. 17, 2015), California Magistrate Judge Stanley A. Boone denied the plaintiff’s motion for the Court to establish dates by which the defendant must produce ESI and ordered the parties to meet and confer (again), warning that if the parties could not reach a resolution, all counsel would be required to personally appear before the court and be prepared to engage in an extended, court-supervised meet and confer session that could require an all-day appearance.

Case Background

In this product liability class action, the plaintiff previously filed a motion to compel which was granted in part and denied in part on April 30, in which the defendant was ordered to produce further ESI in native format if feasible or TIFF format with the associated metadata, as well as to produce associated metadata for its prior production if it had not already done so.  In addition, the plaintiff also filed a motion to compel production of “all Products returned to Conair for problems related to sparking, flashing, popping, fires, or any line cord failure or malfunction” for testing.  Judge Boone denied that motion since the action was “still in the pre-class certification stage of discovery”.

In the joint statement, the plaintiff included a motion to compel production of discovery granted in the Court’s prior order, seeking to have the Court establish dates by which Defendant must produce e-mails and additional consumer complaints.  The defendant objected, contending that the plaintiff added this second motion to compel after the joint statement had been approved by the defendant and without providing the defendant with an opportunity to address the motion.

Judge’s Ruling

Agreeing with the defendant, Judge Boone denied the plaintiff’s motion for the Court to establish dates by which Defendant must produce ESI discovery, stating that the “parties are ordered to meet and confer in an attempt to establish the appropriate scope of the discovery requested and an acceptable timeline for Defendant to produce documents responsive to discovery requests”.

To provide a little motivation for a cooperative meet and confer session, Judge Boone added this:

“The parties have shown that meet and confer efforts in this action have not been successful in resolving these disputes and each assert it is due to the fault of the other party. Due to the parties’ inability to meet and confer and resolve these issues, the parties are advised that the personal appearance of all counsel shall be required for any further motion to compel that is filed with the Court. The parties are encouraged to work together during meet and confer sessions prior to any scheduled hearing. However, if a resolution is not reached prior to the scheduled hearing, the parties shall be required to personally appear and should plan to engage in an extended meet and confer session with the assistance of the Court which could require an all-day appearance on the day of the scheduled hearing.”

So, what do you think?  Should more courts propose to preside over meet and confer sessions?  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. 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.

Is Your Outlook PST File Corrupt? All is Not Lost!: eDiscovery Best Practices

With our 5 year anniversary coming up this weekend and my having experienced this issue with a client recently, it seemed to make sense to revisit this topic.

Though we’d like to believe that there will never be any problems with the data that we preserve, collect and process for eDiscovery purposes, data is not perfect.  Sometimes the most critical data may be difficult or impossible to use.  For example, key files could be password protected from being opened or they could be corrupted.  If an Outlook Personal Storage Table (PST) file is corrupted, that file corruption could literally make tens of thousands of documents unavailable for discovery unless the file can be repaired.

I have a client who regularly sends us PST files to be processed and loaded via CloudNine’s Discovery Client processing application into our CloudNine review platform (double shameless plug warning!).  But, sometimes, the PST files that we have received have been corrupted.  Once, I had a case where 40% of the collection was contained in 2 corrupt Outlook PST files.  Without the ability to repair those files, we would have been unable to access key portions of the collections in these cases that needed to be processed and reviewed.

Fortunately, there is a repair tool for Outlook designed to repair corrupted PST files.  It’s called SCANPST.  It’s an official repair tool that has been included since Office 2007.  Despite the fact that it’s a “tool”, you won’t find SCANPST in the Microsoft Office Tools folder within the Microsoft Office folder in Program files.  Instead, you’ll have to navigate to the C:Program FilesMicrosoft OfficeOffice14 folder (for Office 2010) or C:Program FilesMicrosoft OfficeOffice15 (for Office 2013) to find the SCANPST.EXE utility.

Double-click this file to open Microsoft Outlook Inbox Repair Tool.  The utility will prompt for the path and name of the PST file (with a Browse button to browse to the corrupted PST file).  There is also an Options button to enable you to log activity to a new log file, append to an existing log file or choose not to write to a log file.  Before you start, you’ll need to close Outlook and all mail-enabled applications.

Once ready, press the Start button and the application will begin checking for errors. When the process is complete, it should indicate that it found errors on the corrupted file, along with a count of folders and items found in the PST file.  The utility will also provide a check box to make a backup of the scanned file before repairing.  ALWAYS make a backup – you never know what might happen during the repair process.  Click the Repair button when ready and the utility will hopefully repair the corrupted PST file.

If SCANPST.EXE fails to repair the file, then there are some third party utilities available that may succeed where SCANPST failed.  If all else fails, you can hire a data recovery expert (like us).  Of course, sometimes files are beyond repair, regardless of the utility.

By repairing the PST file, you are technically changing the file, so if the PST file is discoverable, it may be necessary to disclose the corruption to opposing counsel and the intent to attempt to repair the file to avoid potential spoliation claims.

So, what do you think?  Have you encountered corrupted PST files in discovery?  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. 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.

Our Nation’s Largest City Now Has a Dedicated eDiscovery Group in its Law Department: eDiscovery Trends

If you can make it here, you can make it anywhere.

The New York City Law Department has created an electronic discovery group that will be dedicated to assisting the agency’s litigators with preserving and producing electronic evidence.

As reported in the New York Law Journal (NYC Law Department Creates E-Discovery Unit, by Andrew Keshner), Corporation Counsel Zachary Carter said in an internal announcement that the department had moved eDiscovery duties from the department’s Litigation Support Division into a new, separate unit “to meet the increasing demands of e-discovery”.

According to the article, Kenneth A. Becker, co-chair of the department’s Electronic Evidence Committee since 2004, will head the group and Daniel Lim will be deputy director.  About 7,000 cases are filed against the city each year, according to budget testimony from Carter in March – at that time, he testified that the torts division alone was defending approximately 20,000 cases.

According to the New York City Law Department Year in Review summary for 2014, the Litigation Support department helped expand electronic discovery in almost every litigating division, including large public policy and commercial cases with millions of documents as well as counseling client agencies on electronic record retention policies and litigation readiness strategies.  The department also supervised and managed completion of 600-plus agency affidavits in support of motions for summary judgment, as well as supervising and managing production of discovery responses in 2,700-plus matters.  So, they are certainly a busy group!  Now, a new dedicated group within the NYC Law Department will manage its eDiscovery.

So, what do you think?  Will other large cities follow suit, if they haven’t already?  Please share any comments you might have or if you’d like to know more about a particular topic.

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