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Electronic Discovery

eDiscovery Daily is Now an Education Partner of EDRM!

If you’re a regular reader of this blog, you know that we have frequently covered announcements by EDRM that range from announcements about new practical tools (such as those here, here and here) to announcements about new partnerships (such as this one here). We love EDRM because they regularly have something interesting to announce which gives us plenty of topic ideas for this blog. Now, EDRM’s latest announcement includes eDiscoveryDaily as we are now an Education partner of EDRM!

Having participated in EDRM since 2006, I have seen firsthand its rise to become the leading standards organization in eDiscovery and I have had the pleasure of attending several EDRM annual and mid-year meetings since then. The Electronic Discovery Reference Model has become the most recognized framework guide in eDiscovery, but it’s not the only model that EDRM members have collaborated to create, as there are five other models that have been developed and updated over the years, as well as considerably other resources, including an industry standard data set, budget calculators and a Model Code of Conduct for providers and attorneys (to name a few). Think EDRM has been busy over the 4+ years that eDiscovery Daily has existed? We have published 186 posts (and counting) related to EDRM activities and work product.

As mentioned in the announcement, eDiscovery Daily will be published daily on the EDRM site – here’s the link – and you can find the last few posts on the site. We are also listed as one of EDRM’s partners here, along with ACEDS and fellow Education partners, Bryan University and University of Florida Levin College of Law.

As part of the new partnership, eDiscovery Daily will also provide exclusive content to EDRM, including articles sharing real-life examples of organizations using EDRM resources in their own eDiscovery workflows. Look for those to appear soon on the EDRM site. Given our commitment to education at eDiscovery Daily, we are excited about teaming with EDRM to continue working to promote best practices and standards and continue to educate the legal community to manage ESI more effectively in discovery.

By the way, as we noted a couple of weeks ago, EDRM also provides free several webinars per year. Tomorrow, they are providing another one: Getting Cloud Data from the New Big Three: Google, iCloud & MS Office 365, sponsored by Zapproved. Click here for more information and for the link to register.

So, what do you think? Is an alliance between EDRM and eDiscovery Daily good for the eDiscovery industry? 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. eDiscoveryDaily 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. 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.

Tom O’Connor of Advanced Discovery: eDiscovery Trends

This is the fourth of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Tom O’Connor. Tom is a nationally known consultant, speaker and writer in the area of computerized litigation support systems. A frequent lecturer on the subject of legal technology, Tom has been on the faculty of numerous national CLE providers and has taught college level courses on legal technology. Tom’s involvement with large cases led him to become familiar with dozens of various software applications for litigation support and he has both designed databases and trained legal staffs in their use on many of the cases mentioned above. This work has involved both public and private law firms of all sizes across the nation. Tom is the Director of the Gulf Coast Legal Technology Center in New Orleans and he just joined Advanced Discovery as a Senior ESI Consultant in January.

What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

Like all LegalTech shows, it’s hectic. I come to New York thinking, “hey, I’m going to go have a good dinner one night, maybe go down to Times Square” and by 8pm, I’m exhausted. You talk to people all day and at the end of the show day there’s a group of people who want to go out to parties and I’m going across the street to the 24 hour deli and getting a sandwich. It’s always busy and there’s always a ton of things going on at the show. It is great, though, that I get people that I don’t get to see on a regular basis, like Michael Arkfeld and George Socha, so this show is really priceless for me to get to talk to them. Craig (Ball) and George and I just had lunch and talked about Continuous Active Learning and those are the sorts of discussions that LTNY facilitates.

Last night, when I was grabbing my sandwich at the end of the day, Henry Dicker (Executive Director of LegalTech) came walking in and we had a great talk about LegalTech and their worldwide schedule. Henry and I have been doing these shows for about the same amount of time. So, it was interesting getting his perspective in a quiet moment about how the show is going and the attendance and so forth. ALM has apparently been having great success with their overseas shows. I think Henry said that, at the end of the year, he was in Singapore, Taiwan, Hong Kong and mainland China – all within five weeks. So, they have been having great success internationally.

As for the show itself, if you’re looking for new product information and what the latest and greatest is across a wide swath of product types (i.e., every type of legal software imaginable), LTNY, because it is in late January/early February has always been the “granddaddy of them all”. Vendors like to get new releases out for the show, make announcements, etc. ILTA is probably the better show for highly technical information and IT types because it’s where they start opening the hood and popping the carburetor off and boring out the engine. That being said, Henry has a great relationship with ILTA and they have an ILTA track here. But, for what LTNY does, which is cut across all products, it’s unbeatable.

The one issue I have with LTNY (which is not really a negative because the slack is picked up by the ABA Tech Show) is the over-emphasis on BIG firm solutions. BIG firms, BIG corporations, BIG data – everything’s BIG. But, the ABA Tech Show does a good job in picking up and emphasizing small to mid-sized firms and solutions for them.

As for trends for this year, every year there’s a buzzword or two that interests people. The one that I think is particularly discussed a lot this year (again, by big firms) is cybersecurity. After last year, with the big security breaches at Sony and Home Depot, I think that’s in the forefront of people’s discussions right now. I think that’s a very hot topic. Information Governance continues to be a hot topic as well – Patrick Burke had a great program on Monday at the Cardozo Law School – so, I think that continues to be (if you’ll pardon the pun) a huge interest for attendees here. The third area of interest that I’m hearing a lot about is analytics – how to use computer tools of all sorts before you get to review and, in some cases, before you even get to the processing stage and pare down that huge amount of data. Using those tools to try to reduce that volume and get a handle on what’s relevant. A few years ago, the hot topic was early case assessment. It’s a continuation of that trend, but with much more sophisticated tools and ability to do it.

As for moving LTNY to a different time of year, yes, I’ve been advocating for years that they consider flipping LegalTech West and LegalTech East. Have LegalTech West at this time of year and go to San Francisco (where the show will be held this year) or Los Angeles (where the show has been held in past years) during the wintertime and New York in the late spring or early summer. I understand there are long term contracts and it would take a while, but it sure would help things with the weather and travel issues. Once you delay a flight for bad weather by half an hour or 45 minutes, everything goes “to hell in a hand basket” quickly. So, yes, I would love to see it moved.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I don’t think the changes were necessarily for the better. The revised Rule 37(e) still benefits corporate defendants, lowering their burden and making it easier for them to not preserve data. Again, I think that only affects a small percentage of litigants. To paraphrase Judge (Shira) Scheindlin, she essentially said that she just doesn’t think it will have an “in the trenches” sort of an impact. It may in one or two cases, but she didn’t see it as being all that big a deal with the amount of cases that they see, at least in her court. Certainly where I live, in New Orleans and throughout the southeast, the people who I work with in more rural or semi-rural jurisdictions with smaller cases and smaller case loads, there is no impact.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

Clearly, we’ve advanced. I think there is better understanding by some attorneys, especially corporate counsel, which I think have a much firmer grasp of what’s going on in eDiscovery. Four or five years ago, Michael Arkfeld said probably only 2% of attorneys really got eDiscovery and understood all of the rules. We’ve improved, but, unfortunately, I think we’ve only gone to about 10%. I think there’s still a lot of work to be done. Law schools are still dragging their feet on what they see as some sort of technical training. It’s not in their “wheelhouse”, not in their charter. I think that’s changing and I think you’re going to see a lot more aggressive legal education around these issues in law schools in the next year or so.

I think that you’re seeing the judiciary be very aggressive in demanding competence and, with some of the local rules changes and ethics opinions (such as the recent one in California), requiring some sort of affidavit or certification that you have enough knowledge to make a pleading in this field. I think we will continue to see more of that. It’s great when we see Judge Scheindlin say that or Judge (John) Facciola or Judge (Andrew) Peck or other big names in the field, but I see judges in the federal district courts in places like New Orleans, Mobile and Mississippi also be much more demanding of competence. So, I don’t think it’s isolated to the northeast or the big name judges, it’s something that the judiciary as a whole is pushing. That has probably been the biggest change.

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

I have a new position – doing what I’ve always been doing, but now for a national company – heading up the consulting services for Advanced Discovery. I’m working with clients on cases, trying to help them find the right tools to answer these problems that we’re talking about in this interview. And, as always, I’m performing a lot of pro bono work for the Louisiana and Mississippi state bars because we have a very high concentration of solo and small firm attorneys “in our neck of the woods”. They are struggling with all sorts of education issues, especially around eDiscovery and technology updates. That’s a major undertaking, from Houston to Pensacola, in states that are poorer and mostly rural. You think about New Orleans or Mobile, but when you get above that I-10 line, you get to an area that’s underserved by the legal community in general and by technology. Courts, attorneys and clients are all struggling with these issues down there.

Thanks, Tom, 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. 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. 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.

Alon Israely, Esq., CISSP of BIA: eDiscovery Trends

This is the third of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Alon Israely. Alon is the Manager of Strategic Partnerships at Business Intelligence Associates, Inc. (BIA) and currently leads the Strategic Partner Program at BIA. Alon has over eighteen years of experience in a variety of advanced computing-related technologies and has consulted with law firms and corporations on a variety of technology issues, including expert witness services related to computer forensics, digital evidence management and data security. Alon is an attorney and a Certified Information Systems Security Professional (CISSP).

What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

I didn’t get to spend as much time on the floor and in the sessions as I would like because, for me, LTNY has become mostly meetings. On the one hand, that doesn’t help me answer your question as completely as I could but, on the other hand, it’s good for ALM because it shows that there’s business being conducted. A big difference between this year and last year (which may be reflective of our activity at BIA, but others have said it as well), is that there has been more substantive discussions and deal-making than in the past. And, I think that’s what you ultimately want from an industry conference.

Also, and I’m not sure if this is because of attrition or consolidation within the industry, but there seems to be more differentiation among the exhibitors at this year’s show. It used to be that I would walk around LegalTech with outside investors who are often people not from the industry and they would comment that “it seems like everybody does the same thing”. Now, I think you’re starting to see real differentiation, not just the perception of differentiation, with exhibitors truly offering solutions in niche and specialized areas.

As for whether ALM should consider moving the show, absolutely! It seems as though the last few years that has been one of the conversation topics among many vendors as they’re setting up before LegalTech as they ask “why is this happening again” with the snow and what-not. We’ve certainly had some logistics problems the past couple of years.

I do think there is something nice about having the show early in the year with people having just returned from the holidays, getting back into business near the beginning of Q1. It is a good time as we’re not yet too distracted with other business, but I think that it would probably be smart for ALM to explore moving LTNY to maybe the beginning of spring. Even a one-month move to the beginning of March could help. I would definitely keep the show in New York and not move the location; although, I would think that they could consider different venues besides the Hilton without affecting attendance. While some exhibitors might say keep it at this time of year to coordinate with their release schedules, I would say that’s a legacy software answer. Being in the SaaS world, we have updates every few weeks, or sooner, so I think with the new Silicon Valley approach to building software, it shouldn’t be as big a deal to match a self- created release schedule. Marketing creates that schedule more than anything else.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I think that they’re going to pass Congress. I’ve been focusing on the changes related to preservation as it seems that most noteworthy cases, especially those involving Judge (Shira) Scheindlin, involve a preservation mistake somewhere. For us at BIA, we feel the Rules changes are quite a validation of what we’re doing with respect to requiring counsel to meet early to discuss discovery issues, and to force the issue of preservation to the forefront. Up until these changes, only savvy and progressive counsel were focused on how legal hold and preservation was being handled and making sure, for example, that there wasn’t some question eight months down the road about some particular batch of emails. The fact that it is now codified and that’s part of the pre-trial “checklist” is very important in creating efficiencies in discovery in general and it’s great for BIA, frankly, because we build preservation software. It validates needing an automated system in your organization which will help you comply.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

I hate to sound pessimistic, and obviously I’m generalizing from my experience, but it feels like attorneys are less interested in learning about eDiscovery and more interested in being able to rely on some sort of solution, whether that solution is software or a service provider, to solve their problems. It’s a little bit of a new “stick your head in the sand” attitude. Before, they ignored it; now, they just want to “find the right wrench”. It’s not always just one wrench and it’s not that easy. It is important to be able to say “we use this software and that software and this vendor and here’s our process” and rely on that, but the second step is to understand why you are relying on that software and that vendor. I think some lawyers will just say “great, I’ll buy this software or hire this vendor and I’m done” and check that check box that they now have complied with eDiscovery but it’s important to do both – to purchase the right software or hire the right vendor AND to understand why that was done.

Certainly, vendors may be part of the problem – depending upon how they educate. At BIA, we promote TotalDiscovery as a way of not having to worry about your preservation issues, not having data “fall through the cracks” and that you’ll have defensible processes. We do that but, at the same time, we also try to educate our clients too. We don’t just say “use the software and you’re good to go”, we try to make sure that they understand why the software benefits them. That’s a better way to sell and attorneys feel better about their decision to purchase software when they fully understand why it benefits them.

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

As I already mentioned, BIA has TotalDiscovery, our SaaS-based preservation software and we are about to release what we call “real-time processing”, which effectively allows for you to go from defensible data collections to searching that collected data in minutes. So, you can perform a remote collection and, within a few minutes of performing that collection, already start to perform eDiscovery caliber searches on that data. We call it the “time machine”. In the past, you would send someone out to collect data, they would bring it back and put it into processing software, then they would take the processed data and they’d search it and provide the results to the attorneys and it would be a three or four week process.

Instead, our remote collection tool lets you collect “on the fly” from anywhere in the world without the logistics of IT, third-party experts and specialized equipment and this will add the next step to that, which is, after collecting the data in a forensically sound manner, almost immediately TotalDiscovery will allow you to start searching it. This is not a local tool – we’re not dropping agents onto someone’s machine to index the entire laptop, we’re collecting the data and, using the power of the cloud and new technology to validate and index that data at super high speeds so that users (corporate legal departments and law firms) can quickly perform searches, view the documents and the hit highlights, as well as tag and export documents and data as needed. It changes the way that the corporate user handles ECA (early case assessment). They get defensible collection and true eDiscovery processing in one automated workflow. We announced that new release here at LegalTech, we’ll be releasing it in the next few weeks and we’re very excited about it.

Thanks, Alon, 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. 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. 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.

Don’t Get Judge Peck Started on Rule 502(d) Orders: eDiscovery Best Practices

As I noted a couple of weeks ago on this blog, LegalTech® New York 2015 (LTNY) earlier this month had three free judges panel sessions that were CLE or Ethics credit eligible, that included several notable judges, including Judge Andrew J. Peck. These sessions covered the judges’ review of top preservation decisions for 2014, their thoughts on the proposed FRCP amendments and their opinions of what’s wrong with discovery today. In each of those sessions, you heard these questions from Judge Peck at one point during the session.

“How many of you use Federal Rule of Evidence 502(d) non-waiver orders? Or, if you’re inside counsel, (how many) instruct your outside counsel to do so?”

In the last session, fellow panelist and Judge Frank Maas asked a follow-up question, which drew a big laugh: “How many of you have been asked that question at this conference by Judge Peck?”

For those who don’t know, here is the text of FRCP Rule 502(d): “Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.”

In one of the sessions, Judge Peck discussed the significance of Rule 502(d), as follows: “it is a rule that says you don’t have to be careful, you don’t have to show that you’ve done a careful privilege screening, and it says that if the court enters a 502(d) order, it’s a non-waiver of privilege in that case and it’s a non-waiver of privilege in any subsequent state or federal case, even with different parties.”

While making it clear that “I’m never saying that you shouldn’t be as careful as possible to protect your client’s privilege”, Judge Peck related a story of one case where a firm had a potentially privileged group of documents and the associate was reviewing the documents late at night, creating two piles – one for privileged, one for not privileged – got up to get a drink, came back and got the piles mixed up, resulting in privileged documents being inadvertently produced. Naturally, he said, the other side “didn’t just let them off the hook” about whether that waived the privilege or not and there were motions back and forth about it, which a 502(d) order would have eliminated.

With regard to any potential downsides to filing a 502(d) order, Judge Peck made it clear that “in my mind, there is no downside to having such an order”, noting that the only downside he has heard is that “if you’re before the wrong judge, the famous Neanderthal judge that everyone worries about, that judge might say that you need to produce all your documents next week and you don’t need to do a privilege review.” But, he dismissed that as unlikely and, noted that it is “against the rules”.

Judge Peck doesn’t just advocate use of 502(d) orders, he provides a sample order on his page in the Southern District of New York web site, noting that “it’s a simple two paragraph order – the first paragraph gives you the 502(d) protection to the fullest extent and the second paragraph essentially says that nothing in this order will serve to prevent you from doing a careful review for privilege, confidentiality or anything else.” He acknowledged that he “stole that (second) paragraph from a lawyer presenting at the Georgetown conference a few years ago”.

Judge Peck also mentioned The Sedona Conference Commentary on the Protection of Privileged ESI (released last year, it can be downloaded here), which not only includes his sample order, but another (longer) example as well.

So, what do you think? Do you use 502(d) orders in your cases? If not, why not? 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. 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.

James D. Zinn, Managing Director of Huron Consulting Group: eDiscovery Trends

This is the second of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is James D. Zinn. James is Managing Director of Huron Consulting Group. James is responsible for leading Huron Legal’s technology vision and strategy globally. He directs the practice’s software engineering, information technology, and product management teams. James is responsible for driving innovation by identifying and incubating emerging technologies and technology-driven solutions with relevance to Huron Legal. He has more than twenty years of experience developing and delivering services and solutions to clients.

{Editor’s Note: Because of travel issues, James did not make it to LTNY this year, but we were able to re-schedule the interview for after the show.}

What are your general observations about LTNY this year and about emerging trends in general for 2015? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

While I didn’t make it to the show, from what I’ve heard from my colleagues, all of the themes from last year seem to be continuing to mature, including information governance and the convergence of IG and discovery. Also, the focus on security certainly took a step forward this year and the use of predictive coding and other analytical technologies has become a perennial topic and has continued to move forward. So, what I saw was a continued maturing and growth of last year’s themes, which I think will continue throughout 2015.

As for the possibility of moving LTNY to a different time of year, I think that’s a big change. Certainly, New York is much nicer in the fall than in the winter, so I’d love to see a change from that perspective. Realistically, I think that there is a lot of inertia behind the current scheduling, so it would be a big change and disruption to the industry to try and move it.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I don’t think there will be any roadblocks. I think the proposed changes to the Federal rules are useful and I think we’re already starting to see the impact as our clients have started to act consistent with the proposed changes. So, I don’t really see any challenge with them being adopted and incorporated into current practices; in fact, I think that adoption has already begun.

Some of this could be due to the pending rules changes and some could be due to the maturing of organizations and the industry in general. We have seen the increased use of technology to try to wrestle down the volumes of information. We’re seeing more targeted collection, more targeted use of analytics earlier in the process to reduce data volumes, even before the more traditional review stages begin. We are seeing an increasing number of projects where the data volumes are getting culled much more quickly than they have in the past. The days of collecting large volumes and dumping those large volumes indiscriminately into the discovery process and then sorting it all out are evolving into much more careful efforts. As a result, we see the downstream benefits already starting to appear where there’s less need for brute forcing your way through a corpus of documents.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

I think that there has been a continued progress in that area. Our client attorneys that we see on a regular basis are absolutely more knowledgeable about eDiscovery, aware of the issues associated with it and how to address those issues more efficiently. From our view, there’s a clear maturing of that knowledge in the industry.

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

At Huron Legal, we’re continuing to try to support these trends by offering technology everywhere where it can improve the process and make the process as cost-efficient as possible. We’ve continued, much as the industry has, to try to advance and mature those solutions. I mentioned predictive coding earlier and that has been a recurring theme for years and I think predictive coding technology has slowly continued to get better and easier and, as a result, become more adopted within the industry. We’re also seeing a lot more interest in security and with the increase in security breaches and those breaches becoming more publicized, there has been a lot more interest from our clients in understanding how we’re protecting their data, as well as what steps they can also take to protect their data. So, we have a lot of exciting things going on in that area as well.

Also, a little outside the eDiscovery realm but closely related, is cost management. We recently acquired a technology company called Sky Analytics, which focuses on helping lawyers, predominantly corporate law departments, to analyze and understand their external spend (of which discovery is a large component). It helps them to evaluate the efficiency of the services that are being provided by their outside counsel. This fits in well with our efforts to support organizations in managing their legal costs by using analytics and technology to provide meaningful, real-time insight. We’ve made some big strides in this area in the past few months and it will continue to be a significant focus for Huron Legal.

Thanks, James, 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. 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. 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 Publishes Updated Statistical Sampling Guide with Public Comments: eDiscovery Trends

In 2012, we covered EDRM’s initial announcement of a new guide called Statistical Sampling Applied to Electronic Discovery and we covered the release of the updated guide (Release 2) back in December. That version of the guide has now been updated with feedback from the comment period.

The public comment period for EDRM’s Statistical Sampling Applied to Electronic Discovery, Release 2, published on the EDRM website here, concluded on January 9, 2015 and EDRM has announced the release of the updated guide today.

The guide ranges from the introductory and explanation of basic statistical terms (such as sample size, margin of error and confidence level) to more advanced concepts such as binomial distribution and hypergeometric distribution. Bring your brain.

The guide includes an accompanying Excel spreadsheet which can be downloaded from the page, EDRM Statistics Examples 20150123.xlsm, which implements relevant calculations supporting Sections 7, 8 and 9 of the 10 section guide. The spreadsheet was developed using Microsoft Excel 2013 and is an .xlsm file, meaning that it contains VBA code (macros), so you may have to adjust your security settings in order to view and use them. You’ll also want to read the guide first (especially sections 7 thru 10) as the Excel workbook is a bit cryptic.

Even though the public comment period has ended, comments can still be posted at the bottom of the EDRM Statistical Sampling Release 2 page, or emailed to the group at sampling@edrm.net or you can fill out their comment form here.

As I noted back in December, the old guide, from April of 2012, is still on the EDRM site. You’ll want to make sure you go to the new updated guide, located here.

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. 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. 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.

Brad Jenkins of CloudNine: eDiscovery Trends

This is the first of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Brad Jenkins of CloudNine™. Brad has over 20 years of experience as an entrepreneur, as well as 15 years leading customer focused companies in the litigation support arena. Brad has authored several articles on document management and litigation support issues, and has appeared as a speaker before national audiences on document management practices and solutions. He’s also my boss! 🙂

What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

LTNY seemed reasonably well attended this year and I think it was a good show. I have noticed a drop in the number of listed exhibitors though, from 225 a couple of years ago to 199 this year. Not sure if that’s a reflection of consolidation in the industry or providers simply choosing to market to prospects in other ways. I guess we’ll see. Nonetheless, I thought there were several good sessions, especially the three judges’ sessions that addressed key cases, the rules changes and general problems with discovery. I liked the fact that those were free and available to all attendees, not just paid ones. Not surprisingly, those sessions were very well attended.

Overall, I thought the primary focus of this show’s curriculum in three areas: information governance (which had its own educational track at the show), cybersecurity and data privacy. With the amazing pace at which Big Data is growing, I expect information governance to be a major topic for some time to come, especially with regard to the use of technology to manage growing data volumes. And, as we discussed in this blog a couple of weeks ago, data breaches continue to be on the rise and we’ve already had a major one involving over 80 million records this year. That’s also going to continue to be a major focus.

One issue at the show that I think affected several attendees was the sudden lack of meeting space. The Hilton got rid of its lobby lounge, replacing it with a smaller executive lounge limited to hotel guests. And, ALM booked up the Bridges Bar for private events throughout the show. Meetings and discussions are a big part of LTNY and I hope ALM will take that into account next year and at least make the Bridges Bar available for meetings.

As for whether ALM should consider moving LTNY to a different time of year, there are pros and cons to that. As a person who missed the show entirely last year due to weather and travel issues and was delayed a few hours this year, it would be nice to minimize the chance of weather delays. On the other hand, I suspect that part of the reason that the show is in the winter is that it’s less costly to host then. Certainly, vendors would need an advanced heads up of at least a year if ALM were to decide to move the show to a different time of year. I don’t expect that to happen, despite the recent travel issues for remote attendees.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I’m not an attorney and am no expert on the rules, but, based on everything that I’ve heard, it sounds as though they should pass. I know that large organizations are counting on Rule 37(e) to reduce their preservation burden. I think whether it will or not will depend on judges’ interpretation of Rule 37(e)(2) (which enables more severe sanctions “only upon finding that the party acted with the intent to deprive another party of the information’s use”). That section may result in lesser sanctions in at least some cases, but we’ll see. At eDiscovery Daily, we’ve covered over 60 cases per year each of the past three years, so at some point in a year or two, it will be interesting to look back at trends and what they show.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

I think it’s still a battle. We continue to work with a lot of firms whose attorneys lack basic eDiscovery fundamentals and we continue to provide education through this blog and consulting to attorneys to assist them with technical language in requests for production to ensure that they receive the most useful form of production to them, native files with included metadata. I think it’s imperative for providers like us to continue to do what we can to simplify the discovery process for our clients – through education and through streamlining of processes and process improvement. That’s what our corporate mission is and it continues to be a major focus for CloudNine.

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

Well, speaking of has “anything been done in the past year to improve the situation”, in November, we released CloudNine’s new easy-to-use Discovery Client application to automate the processing and uploading of raw native data into our CloudNine platform. Many of our clients have struggled with having data dumped on their desk at 4:00 on a Friday afternoon and having to fill out forms, swap emails and play phone tag with vendors to get the data up quickly so that they can review it over the weekend. With CloudNine’s Discovery Client, they can get data processed and loaded themselves without having to contact a vendor, whether it is load ready or not.

The application will extract data from archives such as ZIP and PST files, extract metadata, extract and index text (and OCR documents without text) render native files to HTML and identify duplicates based on MD5HASH value. The application will also generate key data assessment analytics such as domain categorization to enable attorneys to develop an understanding of their data more quickly. And, we are just about to release a new version of the Discovery Client that will enable clients to simply process the data and retrieve the processed data to load into their own preferred platform (if it’s not CloudNine), so we can support you even if you use a different review platform.

Our do-It-yourself features such as loading your own data, adding your own users and fields, accessing audit logs and setting user rights gives our clients unique control of their review process and makes it easier for them to understand eDiscovery and feel in control of the process. Simplifying discovery and taking the worry out of it (as much as possible) is what CloudNine is all about.

Thanks, Brad, 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. 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. 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.

Court Rules on Dispute about Search Terms and Organization of Produced Documents: eDiscovery Case Law

In Lutzeier v. Citigroup Inc., 4:14-cv-00183-RLW (E.D. Mo. Feb. 2, 2015), Missouri District Judge Ronnie I. White ruled on two motions to compel discovery by the plaintiff, addressing (among other things) disagreement on search terms to be used by the defendant and lack of organization and labeling of the defendant’s production to date.

Case Summary

In this employment termination dispute, the plaintiff filed a motion to compel defendant’s discovery in several areas, including asking the Court to order the defendants to add five categories of search terms, as follows:

(1) “Executive training” and/or “leadership development training program”;

(2) “PEP” and/or “program expenditure proposal” and/or “internal control”,

(3) “OCC,” “office of comptroller of currency,” “FRB,” “federal reserve board,” and/or “consent order”;

(4) “Insufficient assurance”; and

(5) “Whistleblower,” “retaliate,” “retaliation,” “SOX,” “Sarbanes Oxley,” and/or “Dodd Frank.”

The defendants claimed that the new categories of search terms were “so common and generic that they will return a significant volume of irrelevant documents that it is not sufficient to justify the additional burden”, maintaining that using the search protocol for “Fred,” “Lutzeier,” “LOIS,” “COSMOS,” and “Champney” would produce all of the relevant documents. The defendants also claimed that adding these additional search terms would produce an additional 555,909 documents and, therefore, the burden “greatly outweighs the likelihood that these searches will yield additional documents not already captured by Defendants’ search protocol.”

In the plaintiff’s second motion to compel, he complained that the defendants had produced in excess of 46,217 documents without providing any indication as to which documents are responsive to which of Plaintiff’s 58 requests for production. The defendants acknowledged that they did not organize and label their production, but argued that the ESI agreement dictates the method of production and further claimed that, even if Rule 34(b)(2)(E) controls, they had complied with its requirements as the document production was fully searchable, “which negates any need to organize the production”.

Judge’s Ruling

Judge White agreed that “the majority of the search terms suggested by Plaintiff are too generic and are likely to produce a large number of documents that are irrelevant to this case” and found that “the current search criteria adequately ensures that the proper documents that are relevant to Plaintiff’s causes of action are produced”. As a result, he denied the plaintiff’s request to additional search criteria, except for the phrase “consent order” because “there appears to be some confusion as to whether other consent orders exist that are relevant to this case”.

As for organization of the production, Judge White ruled that the method of the defendants’ production “complies with both the ESI agreement and with Rule 34″. Both parties relied on Venture Corp. Ltd. v. Barrett in their arguments, and Judge White held that the defendants “have complied with the requirements outlined there”, finding “that Defendants’ production is in a reasonably usable form or forms and/or the production is searchable, sortable and paired with relevant metadata.”

So, what do you think? What information should courts require to be able to rule on the relevance of search terms? 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. eDiscoveryDaily 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. 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.

Information Governance vs. Search Doesn’t Have to Be a Battle After All: eDiscovery Trends

As will soon be reinforced in our upcoming thought leader interviews, one of the major focus areas at this year’s LegalTech® New York 2015 (LTNY) was a continued emphasis on Information Governance (IG). One of our perennial interviewees, Ralph Losey, has some thoughts about the battle in the legal tech world between IG and Search and reveals that it doesn’t have to be a battle after all.

In the post Information Governance v Search: The Battle Lines Are Redrawn on his excellent e-Discovery Team® blog, Ralph states that last year, he “came to believe that Information Governance’s preoccupation with classification, retention, and destruction of information was a futile pursuit”, termed IG activities as “inefficient and doomed to failure” and instead “embraced the googlesque approach of save and search”.

When Ralph expressed those viewpoints, he (not surprisingly) “created a controversy” and received quite a backlash, including “a distinguished leader of IG who bristled at my challenges” who “insisted that everyone in her very large corporation could easily comply with her lengthy retention schedules”. However, other members of the IG leadership “responded to the opposition with dialogue”, which enabled Ralph to learn that “IG, like Search, is not a monolith, that there are various factions and groups within IG”. Ultimately, Ralph determined that his “quarrel is, instead, with the old-liners, the Records Manager strata of IG who are obsessed with ESI classification and killing” (that Ralph categorizes as “caterpillars”). “To those” (a.k.a., the “butterflies”) “who have let go of that traditional role, and already been reborn as multimodal, AI-enhanced Information experts, I have no quarrel.”

Ralph has a lot more to say in the post, noting that ESI “grows and changes too fast for traditional governance” and concludes that “Information Governance is actually a sub-set of Search, not visa versa”. He also provides a nice graphic to illustrate just how much data is created in the digital universe every 60 seconds (see the top of this post). Remember a little over a year ago, when we noted that 3.4 sextillion bytes of information had been created in close to ten months in 2013? Well, according to EMC’s latest ticker, 6.1 sextillion bytes have been created since January 1, 2014. Yikes! We’ve provided a link to another infographic at the bottom of this post, courtesy of Domo.com, that provides even more info about the amount of data created every 60 seconds. Enjoy!

By the way, Ralph just posted his 500th blog post, which is a tremendous milestone. Congrats, Ralph! Up to now, Ralph noted that he has been posting weekly (since November 2006) and his posts have “morphed into several thousand word essays”. At eDiscoveryDaily, we probably write 2,500 to 4,000 words per week over five posts; Ralph writes that much (and often more) in his one post a week.

Now, Ralph has indicated that his e-Discovery Team® blog will be changing to a monthly format and that he will begin writing the blog “for advanced readers only”. I look forward to see how the future posts will look, but will miss my Monday morning routine of sitting down with a cup of coffee and reading Ralph’s latest post (at least for the weeks without a new post). Keeping a blog going day after day (or even week after week) is not easy. Kudos to Ralph for keeping it going for over eight years (so far).

So, what do you think? Do you think the old way of information governance is “inefficient and doomed to failure”? Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. — Happy Birthday to my wonderful and beautiful wife, Paige Austin!  We got engaged one year ago today.  Best thing that’s ever happened to me!  🙂

infographic

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscoveryDaily 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. 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.

You Don’t Get a Second Chance to Make a First Document Production Request: eDiscovery Case Law

In Allison v. Clos-ette Too, LLC, No. 14 CV 1618 (LAK)(JCF) (S.D.N.Y. Jan. 9, 2015), New York Magistrate Judge James C. Francis, among other motions considered, denied the plaintiff’s motion to compel the defendants’ production of electronically stored information (ESI) in native format after the plaintiff had previously requested (and received) ESI from the defendants without specifying the desired document format.

Case Summary

In this employment dispute, the plaintiff originally requested ESI from the defendants in July 2014, without specifying a format. The defendants responded to the plaintiff’s demands later that month, and supplemented their response on various dates and the plaintiff did not object to the format of these productions. However, when the defendants requested that all ESI be produced in native format, the plaintiff was inspired to make a reciprocal request regarding the documents previously produced by the defendants. Following an oral discussion and request by plaintiff’s counsel that the defendants reproduce the earlier production in native format, the defendants declined to do so and the plaintiff filed the instant motion to compel.

Judge Francis dealt with the plaintiff’s request swiftly, as follows:

“Under Rule 34 of the Federal Rules of Civil Procedure, a party may specify the form in which electronically stored information is to be produced. Fed. R. Civ. P. 34(b)(1)(C). “If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E)(ii). The plaintiff did not originally object to the format of the defendants’ productions…She does not appear to contest that it is “reasonably usable,” nor does she even allege that native format documents would be more useful to her. As “[a] party need not produce the same electronically stored information in more than one form,” Fed. R. Civ. P. 34(b)(2)(E)(3), the plaintiff’s motion to compel is denied.”

So, what do you think? Should the plaintiff have been entitled to a second production? 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. eDiscoveryDaily 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. 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.