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Electronic Discovery

Thursday’s ILTACON Sessions: eDiscovery Trends

As noted yesterday, Monday and Tuesday, the International Legal Technology Association (ILTA) annual educational conference of 2015 (now known as ILTACON) is happening this week and eDiscovery Daily will be reporting this week about the latest eDiscovery trends being discussed at the show.  This is the last day to check out the show if you’re in the Las Vegas area with a number of sessions available and over 190(!) exhibitors providing information on their products and services.

Perform a “find” on today’s ILTACON conference schedule for “discovery”, “litigation support” or “information governance” and you’ll get at least 3 sessions with hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

11:00 AM – 12:00 PM:

Develop Talent and Prove the Value of Your Internal Litigation Support

Description: With more and more vendors touting all-inclusive services, litigation support managers and directors have to show the value their departments add to the discovery process. Come hear experts talk about their experiences developing talent and managing “up” to meet the vendor challenge.

Speakers are: Scott M. Cohen – Winston & Strawn LLP; Ross Gotler – Paul, Weiss, Rifkind, Wharton & Garrison LLP; Wale Elegbe – Sullivan & Cromwell LLP; Denise Talbert – Shook, Hardy & Bacon L.L.P.

2:30 PM – 3:15 PM:

Past Performance and Future Success: What’s Next for E-Discovery?

Description: From the days of paper review to the advent of electronic scanning and to e-discovery as we now know it today, listen as industry veterans explore the evolution of our industry and share their experiences of adjusting to the times. They will explore the role of technology, adoption and expertise of the courts and government agencies, the role of the attorney, and much more!

Speakers are: Mary Pat Poteet – Project Leadership Associates, Inc.; Scott M. Cohen – Winston & Strawn LLP; Eric Lieber – Toyota Motor Sales; Beth Patterson, CLSP – Allens.

3:30 PM – 4:30 PM:

A Conversation with Judge Peck

Description: Audience members are sure to enjoy hearing respected jurist, Judge Andrew Peck, speak about various e-discovery topics.

Speakers are: Mary Pat Poteet – Project Leadership Associates, Inc.; Honorable Andrew J Peck.

For a complete summary listing of all sessions at the conference, click here.

So, what do you think?  Did you attend ILTACON this year?  What did you think of the conference?  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.

Wednesday’s ILTACON Sessions: eDiscovery Trends

As noted yesterday and Monday, the International Legal Technology Association (ILTA) annual educational conference of 2015 (now known as ILTACON) is happening this week and eDiscovery Daily will be reporting this week about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show if you’re in the Las Vegas area with a number of sessions available and over 190(!) exhibitors providing information on their products and services.

Perform a “find” on today’s ILTACON conference schedule for “discovery”, “litigation support” or “information governance” and you’ll get at least 4 sessions with hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

11:00 AM – 12:00 PM:

Building a Process Map for Culling Discovery Data

Description: The most costly stage of the discovery process is document review. To contain costs, litigation support teams must use analytics and leverage technology to reduce the amount of data that goes into review. During this hands-on workshop, attendees will develop a process for culling data based on a specific scenario with an “as is” process map. Each table will work as a team to determine the best technology, processes and people to improve efficiency in a defensible manner. Come learn how to think through and develop a process map related to e-discovery analytics!

Speakers are: Andrew P. Medeiros – Seyfarth Shaw LLP; Geoff Wilcox – UnitedLex.

Data-Driven: Leveraging Data for More Effective Risk Management and Information Governance

Description: Organizations outside of legal handle risk management with dedicated people, formal structures and better intelligence about where to deploy resources. This is a better way to manage risk, using empirical data to perform calculated, rational assessments. But where do you start? Learn how to approach risk comprehensively and intelligently instead of reactively, and hear how law firms and legal departments can use data to reduce risk and protect the business.

Speakers are: Steven Naphy – Morgan, Lewis & Bockius, L.L.P.; Bill Hardin – Navigant; Brad Waldron – Caesars Entertainment Legal Department; Christopher Calnon – ACE Group.

1:30 PM – 2:30 PM:

Aligning Information Security, Litigation Support and E-Discovery

Description: A panel of litigation support, information security and corporate legal department representatives will tackle the challenges of remaining responsive to the sea of incoming litigation support/e-discovery requests while staying in compliance with internal and external information security requirements. We will help litigation support and information security professionals understand the pressures each is under, create a shared vision of success and build the relationships necessary to drive value for clients while effectively managing risk.

Speakers are: Mr John L. Kapp – Shearman & Sterling, LLP; Dawn Radcliffe – TransCanada Pipelines; Hal Marcus – Recommind, Inc.; Lisa Markey – Shearman & Sterling, LLP.

3:30 PM – 4:30 PM:

Oracle Predictive Coding Study: Phase II Results

Description: Last year’s wildly successful session based on the results of the Electronic Discovery Institute’s predictive coding study is back for more! In this year’s follow up, we will present the next phase of results. Come get an unbiased, scientific view into the world of predictive coding.

Speakers are: Patrick L. Oot – Shook, Hardy & Bacon L.L.P.; Beth Patterson, CLSP – Allens.

For a complete summary listing of all sessions at the conference, click here.

So, what do you think?  Are you planning to attend ILTACON 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. 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.

Tuesday’s ILTACON Sessions: eDiscovery Trends

As noted yesterday, the International Legal Technology Association (ILTA) annual educational conference of 2015 (now known as ILTACON) is happening this week and eDiscovery Daily will be reporting this week about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show if you’re in the Las Vegas area with a number of sessions available and over 190(!) exhibitors providing information on their products and services.

Perform a “find” on today’s ILTACON conference schedule for “discovery”, “litigation support” or “information governance” and you’ll get at least 4 sessions with hits (including this one where I’ll be presenting, for a whopping six minutes).  So, there is plenty to talk about!  Sessions in the main conference tracks include:

11:00 AM – 12:00 PM:

Successfully Selling an Information Governance Program

Description: What is the secret to selling the idea of implementing an information governance program at your organization? A panel of experts will discuss the business drivers relevant to getting people on board, including key indicators of success.

Speakers are: Beth Chiaiese, CRM – Foley & Lardner LLP; Rudy Moliere – Morgan, Lewis & Bockius, L.L.P.; Sharon Keck – Polsinelli PC.

To Share Or Not To Share: The Debate Over Disclosure of E-Discovery Protocols

Description: What do you have to tell opposing counsel about your search, culling and review strategies? What if they object? What do courts say about these issues? Litigation support professionals will hear a thought-provoking discussion between Judge Andrew Peck and a panel of lawyers with differing views about the delicate balance between cooperation and advocacy.

Speakers are: Patrick L. Oot – Shook, Hardy & Bacon L.L.P.; Julie M Richer – American Electric Power Legal Department; Honorable Andrew J Peck; Mr Philip Favro – Recommind, Inc.; Alex Ponce de Leon – Google Inc. Legal Department.

1:30 PM – 2:30 PM:

20 E-Discovery Warnings in 60 Minutes

Description: We’ve all been there: Things don’t go as expected, and you end up getting burned. Join your peers in this interactive session where audience members will provide examples of things that went awry and, more importantly, how the issue was resolved. Attendees will walk away with some great tips to avoid future fire drills!

Speakers are: Michael Boggs – Holland & Hart; George J. Socha – Socha Consulting.

3:30 PM – 4:30 PM:

Building Strategic Litigation Support Relationships

Description: Trying to accomplish things on your own could take more resources than you have, and you might not generate the best results. The best strategic relationships don’t just happen, but what does it take to develop and maintain the optimal strategic relationship? Panelists will share techniques they have used to nurture and maintain their strategic relationships and how the investments have paid off. Gain insight on building and maintaining strategic relationships in your litigation support organization.

Speakers are: Greg Anderson – Lateral Data, A Xerox Company; Doug Matthews – Vorys, Sater, Seymour and Pease LLP; Donna Epes – Qdiscovery; Joe Turner – Lateral Data, A Xerox Company; Geoff Wilcox – UnitedLex.

For a complete summary listing of all sessions at the conference, click here.

So, what do you think?  Are you planning to attend ILTACON 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. 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.

Welcome to ILTACON 2015!: eDiscovery Trends

The International Legal Technology Association (ILTA) annual educational conference of 2015 (now known as ILTACON) kicked off yesterday with several networking events, and begins in earnest today with the first day of sessions.  eDiscovery Daily will be reporting this week about the latest eDiscovery trends being discussed at the show.  Over the next four 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 Las Vegas area, come check out the show – there are a number of sessions available and over 190(!) exhibitors providing information on their products and services.  Perform a “find” on today’s ILTACON conference schedule for “discovery”, “litigation support” or “information governance” and you’ll get at least 6 sessions with hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

11:00 AM – 12:00 PM:

Creating the Firm of the Future: Utilizing IG Assessments To Drive Improvements

Description: In a world of ever-rising concerns of privacy, security and protecting intellectual property, clients are now more information savvy, and are insisting that their law firm representation is maintaining high standards when it comes to internal information governance (IG) strategies and practices.

Therefore, the firms of the future will need to able to offer clients proof of where they stand on the maturity of these practices to secure client trust and confidence.

Is your firm ready to answer the call for transparency?

In this session, you will learn how an IG assessment can play a critical role in taking your firm to the Next Level in preparing to meet your clients’ increasing demands and expectations for governing their information.  You’ll understand what it takes to deploy a firm-wide assessment,  and hear about real-world experiences with implementation and leveraging outcomes.

Speaker is: David Vickers – ARMA International

Embracing Managed Services for Litigation Support

Description: Is your firm contemplating a move to a managed services model? Are you wondering what the journey entails? A panel of leaders who have embraced the switch to managed services for litigation support will tell their tales of what led them there, associated costs, staffing, the type and volume of work and, most important, how it is working out.

Speakers are: Wale Elegbe – Sullivan & Cromwell LLP; R.P. Smith – Jones Walker LLP; Chris Haley – Troutman Sanders LLP; Kim C. Edwards – Patterson Belknap Webb & Tyler LLP.

1:00 PM – 2:00 PM:

Building Information Governance Like “Ocean’s Eleven”

Description: In the 2001 movie “Ocean’s Eleven,” George Clooney assembles the perfect team to pull off a spectacular Vegas robbery. In managing IT governance, risk and compliance (GRC), your firm also needs to assemble the perfect team. How do you find and manage the key players in GRC, and how do you properly divide the varied responsibilities that must be shouldered? Together we can figure out how to build a team that prepares us for the heist (GRC program) of a lifetime.

Speakers are: Nancy Beauchemin – InOutsource; Beth A. H. Faircloth – Seyfarth Shaw LLP; Tim Schank – Vedder Price P.C.; Stuart Senator – Munger, Tolles & Olson LLP.

Litigation Support Roundtable

Description: We all hate the fire drills and would like to prepare for challenges before they arrive. What major challenges in litigation support will we face next? During this moderated roundtable discussion of hot topics in litigation support, we will address concerns on the minds of your peers and identify issues to consider for the future. Topics will be selected by session attendees and could include staffing, product selection, technological advances, recent case decisions, outsourcing, etc.

Speakers are: Joanne Lane – Merck & Co., Inc.; Stephen Dooley – Sullivan & Cromwell LLP.

2:30 PM – 3:30 PM:

Information Governance Consulting: Law Firm Opportunity or Mistake?

Description: Driven by information security requirements, e-discovery costs and government regulations, clients are turning to law firms for strategic approaches to managing their information. Law firms have an opportunity to assist and further direct and grow information governance initiatives within client organizations, but what are the risks of this type of work? What do clients expect? What can law firms provide that technology solutions do not, and what benefits come from this type of client relationship? Opportunity or mistake? You make the call!

Speakers are: Brynmor Bowen – Schulte Roth & Zabel; Ms Samantha J Lofton – Ice Miller LLP.

4:00 PM – 5:00 PM:

Is Big Data in Legal a Figment of Our Imaginations?

Description: The big data phenomena simply does not apply to the legal market. After all, our firms’ data sets and data complexities are much too small to warrant industrial-strength big data technologies and techniques, right? This panel of law firm technology, privacy and governance experts strongly disagrees! We will share firsthand examples of big data at work in our law firms and show how to apply “big data thinking” to utilize technologies and techniques in a new, more productive, efficient and analytical way. Get ready for real-time role playing aimed to arm you with the information you need to address your managing partner’s big data questions (and doubts) and build a solid big data business case even the biggest curmudgeon can’t deny. Along the way, our experts will touch on hot themes including technology (analytics, algorithms, etc.) and governance (including privacy and security). We’ll also share enough legal big data (BD) case studies to make BD-lievers out of everyone!

Speakers are: Jobst Elster – InsideLegal.Com; Brynmor Bowen – Schulte Roth & Zabel; Eric Hunter – Bradford & Barthel, LLP; Galina Datskovsky – Vaporstream; Judy Selby – Baker & Hostetler LLP; Paul Starrett – Starrett Consulting and Investigative Services.

For a complete summary listing of all sessions at the conference, click here.

So, what do you think?  Are you planning to attend ILTACON 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. 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 ILTACON!: eDiscovery Trends

It’s a rare Saturday post for us as we get ready for ILTACON 2015, the (newly named this year) annual educational conference for the International Legal Technology Association (ILTA), which will be at Caesars Palace in Las Vegas this year.  It starts tomorrow with several networking events, and begins in earnest on Monday with the first day of sessions.  Just a warning, Caesars Palace is not pager friendly!  Here are a few resources to help you get ready.

Summary Agenda of Networking Events, Educational Sessions, Meals and Breaks, etc.

Summary Grid of Conference Sessions (4 page PDF)

Detailed Conference Session Agenda with Descriptions of the Sessions (61(!) page PDF)

Details on Networking Events and Recreational Events (hey, everybody needs some R&R during a long show!)

Even a one-page PDF with 8 Reasons Why You Should Send Your Hard-Working and Deserving Employee to ILTACON 2015 (to help convince your boss to send you).

eDiscovery Daily will be at the show and will cover the sessions and highlight sessions each day related to eDiscovery, litigation support and Information Governance.  Heck, we will even be presenting at the 20 E-Discovery Warnings in 60 Minutes session on Tuesday at 1:30 (for a whopping six minutes).  Hope to meet you there!

So, what do you think?  Are you attending ILTACON 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. 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.

Here’s a New Dataset Option, Thanks to EDRM: eDiscovery Trends

For several years, the Enron data set (converted to Outlook by the EDRM Data Set team back in November of 2010) has been the only viable set of public domain data available for testing and demonstration of eDiscovery processing and review applications.  Chances are, if you’ve seen a demo of an eDiscovery application in the last few years, it was using Enron data.  Now, the EDRM Data Set team has begun to offer some new dataset options.

Yesterday, EDRM announced the release of the first of its “Micro Datasets.”  As noted in the announcement, the datasets are designed for eDiscovery data testing and process validation. Software vendors, litigation support organizations, law firms and others may use these smaller sets to qualify support, test speed and accuracy in indexing and search, and conduct more forensically oriented analytics exercises throughout the eDiscovery workflow.

The initial offering is a 136.9 MB zip file containing the latest versions of everything from Microsoft Office and Adobe Acrobat files to image files and contains EDRM specific work product files and data from public websites. There are even some uncommon formats including .mbox email storage files and .gz archive files!  The EDRM Dataset group has scoured the internet and found usable freely available data at universities, government sites and elsewhere, a selection of which are included in the zip file.

The first EDRM Micro Dataset zip file is available now for download here.  While it’s an initial small set, EDRM has promised “advanced” data sets to come.  Those advanced data sets, to be released in the near future, will be available exclusively to EDRM members.  Members will be notified by email with instructions for file downloading.   Organizations interested in EDRM membership will find information at https://www.edrm.net/join/.  Now, there is more reason than ever to join!

So, what do you think?  Are you tired of using the Enron data set and look forward to alternatives?   If so, today is your lucky day!  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.

eDiscovery Has Gone to the Dogs: eDiscovery Trends

If I had known that yesterday was National Dog Day, I would have posted this then, instead of today, but it’s a great story any day.

As reported by ABA Journal, Discover Magazine and NBC News, there is a new type of forensic collection device being used in criminal forensic investigations.  His name is Bear and he’s a black Labrador.

This 2-year-old rescue dog played a key role in the arrest of former Subway pitchman Jared Fogle on child-porn charges, finding a thumb drive that humans had failed to find during a search of Fogle’s Indiana house in July, several weeks before he agreed to plead guilty to having X-rated images of minors and paying to have sex with teenage girls.

According to the Discover article, Bear also helped officers locate 16 smartphones, 10 flash drives and six laptops during an 11-hour search last month of Fogle’s home.  His training relies on the work of chemist Jack Hubball, who tested flash drives, circuit boards and other electronic components and found a chemical that is common to all of them.  Hubball previously identified the accelerants (e.g., gasoline) dogs sniff out to identify arson, and also helped train dogs to find narcotics and bombs.

According to the NBC article, Bear has taken part in four other investigations, including this week’s arrest of Olympics gymnastics coach Marvin Sharp. And he’s just been sold to the Seattle Police Department for $9,500 (basically the cost of the training) to help investigate Internet crimes.  The NBC article includes a video of Bear in action, with Bear’s “dog whisperer” Todd Jordan providing a demonstration of his abilities.

After helping with the Fogle investigation, Bear’s trainer says he’s received some 30 inquiries from police who want to buy their own electronics-sniffing dog.  I can see why.  Labradors not only have particular sniffing skills, they also make great pets, too!  And, although I have so far been unable to train our black Labrador Brooke to keep from jumping on guests to our house, we still love her and are glad we were able to rescue her last year.  Here’s a picture of her, with her favorite Kong ball:

In the future, criminal forensic investigators may show up at a suspect’s residence with a subpoena, a copy of Forensic Toolkit (FTK) and their trusty lab.  As in Labrador.

So, what do you think?  Do you have a unique ESI collection story?   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.

If You Play “Tag” Too Often, You Might Find Yourself Playing “Hide and Seek”: eDiscovery Best Practices

If you’ve used any review tool, you’re familiar with the “tag” field to classify documents.  Whether classifying documents as responsive, non-responsive, privileged, or applicable to any of a number of issues, you’ve probably used a tag field to simply check a document to indicate that the associated characteristic of the document is “true”.  But, if you fall in love with the tag field too much, your database can become unmanageable and you may find yourself playing “hide and seek” to try to find the desired tag.

So, what is a “tag” field?

In databases such as SQL Server (which many review platforms use for managing the data associated with ESI being reviewed), a “tag” field is typically a “bit” field known as a yes/no boolean field (also known as true/false).  As a “bit” field, its valid values are 0 (false) and 1 (true).  In the review platform, the tag field is typically represented by a check box that can simply be clicked to check it as true (or click again to turn it back to false).  Easy, right?

One of the most popular features of CloudNine’s review platform (shameless plug warning!) is the ability for the users to create their own fields – as many as they want.  This can be useful for classifying documents in a variety of ways – in many cases, using the aforementioned “tag” field.  So, the user can create their fields and organize them in the order they want to make review more efficient.  Easy, right?

Sometimes, too much of a good thing can be a bad thing.

I have worked with some clients who have used tag fields to classify virtually everything they track within their collection – in some cases, to the extent where their field collections grew to over 200 data fields!!  Try finding the data field you need quickly when you have that many.  Not easy, right?  A couple of examples where use of the tag field was probably not the best choice:

  • Document Types: I have seen instances where clients have created a tag field for each type of document. So, instead of creating one text-based “DocType” field and populating it with the description of the type of document (e.g., Bank Statements, Correspondence, Reports, Tax Documents, etc.), the client created a tag field for each separate document type.  For clients who have identified 15-20 distinct document types (or more), it can become quite difficult to find the right tag to classify the type of document.
  • Account Numbers: Once again, instead of creating one text-based field for tracking key account numbers mentioned in a document, I have seen clients create a separate tag field for each key account number, which can drive the data field count up quite a bit.

Up front planning is one key to avoid “playing tag” too often.  Identify the classifications that you intend to track and look for common themes among larger numbers of classifications (e.g., document types, organizations mentioned, account numbers, etc.).  Develop an approach for standardizing descriptions for those within text-based fields (that can then effectively searched using “equal to” or “contains” searches, depending on what you’re trying to accomplish) and you can keep your data field count to a manageable level.  That will keep your game of “tag” from turning into “hide and seek”.

So, what do you think?  Have you worked with databases that have so many data fields that it becomes difficult to find the right field?   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.

Got Problems with Your eDiscovery Processes? “SWOT” Them Away: eDiscovery Best Practices

Having recently helped a client put one of these together, it seemed appropriate to revisit this topic…

Understanding the internal and external challenges that your organization faces allows it to approach ongoing and future discovery more strategically.  A “SWOT” analysis is a tool that can be used to develop that understanding.

A “SWOT” analysis is a structured planning method used to evaluate the Strengths, Weaknesses, Opportunities, and Threats associated with a specific business objective.  That specific business objective can be a specific project or all of the activities of a business unit.  It involves specifying the objective of the specific business objective and identifying the internal and external factors that are favorable and unfavorable to achieving that objective.  The SWOT analysis is broken down as follows:

  • Strengths: characteristics of the business or project that give it an advantage over others;
  • Weaknesses: are characteristics that place the team at a disadvantage relative to others;
  • Opportunities: elements in the environment that the project could exploit to its advantage;
  • Threats: elements in the environment that could cause trouble for the business or project.

“SWOT”, get it?

From an eDiscovery perspective, a SWOT analysis enables you to take an objective look at how your organization handles discovery issues – what you do well and where you need to improve – and the external factors that can affect how your organization addresses its discovery challenges.  The SWOT analysis enables you to assess how your organization handles each phase of the discovery process – from Information Governance to Presentation – to evaluate where your strengths and weaknesses exist so that you can capitalize on your strengths and implement changes to address your weaknesses.

How solid is your information governance program?  How well does your legal department communicate with IT?  How well formalized is your coordination with outside counsel and vendors?  Do you have a formalized process for implementing and tracking litigation holds?  These are examples of questions you might ask about your organization and, based on the answers, identify your organization’s strengths and weaknesses in managing the discovery process.

However, if you only look within your organization, that’s only half the battle.  You also need to look at external factors and how they affect your organization in its handling of discovery issues.  Trends such as the growth of social media, and changes to state or federal rules addressing handling of electronically stored information (ESI) need to be considered in your organization’s strategic discovery plan.

Having worked through the strategic analysis process with several organizations over a number of years, I find that the SWOT analysis is a useful tool for summarizing where the organization currently stands with regard to managing discovery, which naturally identifies areas for improvement that can be addressed.

So, what do you think?  Has your organization performed a SWOT analysis of your discovery process?   Please share any comments you might have or if you’d like to know more about a particular topic.

Graphic source: Wikipedia.

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 Acknowledges Lack of Expertise to Recommend Search Methodology, Orders Parties to Confer: eDiscovery Case Law

In ACI Worldwide Corp. v. MasterCard Technologies, LLC and MasterCard International, Inc., 8:14CV31 (Jul. 13, 2015), Nebraska Magistrate Judge F.A. Gossett, acknowledging that the Court “simply does not have the expertise necessary to determine the best methodology to be employed in retrieving the requested materials in a safe, non-obtrusive, and cost-effective manner”, ordered the parties to “once again” confer in an effort to reach an agreement regarding the search methodology to be employed by the defendants in retrieving the information requested by the plaintiff.

Case Background

In this action where the plaintiff alleged the defendants violated a licensing agreement and disclosed confidential information regarding the plaintiff’s middleware, the plaintiff sought ESI from the defendants to determine whether they continued using information regarding the middleware after expiration of the license agreement and whether they still use it in their source code today.

The defendants objected to producing the ESI as requested, stating that the requests were burdensome and also claiming risks that the requests posed to the defendants’ production systems. The plaintiff, in an effort to address the defendants’ concerns, revised the discovery requests several times and devised a search protocol for the defendants to use in retrieving the requested information – when the defendants refused to use the devised search protocol, the plaintiff filed a motion to compel.

Judge’s Ruling

Noting that “Defendants do not dispute the relevance of the requested information”, Judge Gossett found that “Plaintiff has shown a particular need for the information and that the information is relevant to the issues involved in this action”.  Judge Gossett stopped short of granting the plaintiff’s motion though, stating:

“However, the Court simply does not have the expertise necessary to determine the best methodology to be employed in retrieving the requested materials in a safe, non-obtrusive, and cost-effective manner. Based on the information before it, the Court does not even know whether a search methodology or protocol exists (or could exist) which would allow the requested information to reasonably be retrieved.”

As a result, Judge Gossett chose to “order the parties to once again confer in an effort to reach an agreement regarding the search methodology to be employed in retrieving the requested information”, with a plan to “refer the matter to a special master” if the parties would be unable to agree.

So, what do you think?  Should the court have been able to recommend the methodology or was the judge wise to order the parties to try again to work it out?  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.