Electronic Discovery Archives

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

February 25, 2015

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:

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?
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?
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?
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

February 24, 2015

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.

Brad Jenkins of CloudNine: eDiscovery Trends

February 23, 2015

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:

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?
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?
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?
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.

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.

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!

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

February 20, 2015

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

February 19, 2015

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! 🙂

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

February 18, 2015

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.

Here’s Another Resource from EDRM That You May Not Know About: eDiscovery Webinars

February 17, 2015

If you’re like me, you get a lot of email invites to webinars for all sorts of topics. Most are free and I wish I could attend them all, but I have a day job (beyond my role as editor of eDiscoveryDaily, I’m also VP of Professional Services for CloudNine), so I don’t have a lot of free time and have to pass on most of them (including many that I’d like to attend). If that’s true for you too and the webinar that you’re missing is provided by EDRM, you might be happy to know that you can probably still view it, whenever you have time.

EDRM uses BrightTALK, which is a technology media company that provides professional webinar and video solutions to a variety of industries, including eDiscovery, to schedule and host its webinars. Via the BrightTALK site, you can register to attend upcoming EDRM webinars that have been scheduled – such as the one coming up tomorrow (February 18) titled Cross Border Issues in eDiscovery, sponsored by UBIC, from 1:00 to 2:00 pm Central time. Here is the link to sign up.

Busy tomorrow and can’t attend? You can still catch the webinar later on – via that same link. At the bottom of the page, you’ll see two tabs: Live and Recorded and Upcoming. Currently, there is a 29 next to the Live and Recorded tab, indicating 29 previously recorded webinars by EDRM.

Did you miss the webinar earlier this month titled Assembling the Team to Complete the eMSAT? You can still catch it here, as well as the first two webinars in the eMSAT series (Understanding the EDRM eDiscovery Maturity Self-Assessment Tool and Building the Business Case for the eMSAT-1). So, if you want to learn plenty about the new eMSAT tool provided by EDRM’s Metrics team (and previously covered by this blog here), you can do so at your own pace.

In fact, that’s true for 11 webinars held by EDRM in 2014. And also for webinars held back as far as May 30, 2012 (nearly three years ago), when EDRM conducted a webinar, sponsored by AccessData, about early data assessment, titled Early and Often. Each of the webinars also includes an Attachments button to enable you to download presentation materials, including PowerPoint slides (when available) for later reference.

All you’ll have to do is to register for a free BrightTALK account – if you’ve attended a webinar in the past, you probably already have a login account – and log in when you want to catch a webinar. It’s that easy.

So, what do you think? Are you like me and can’t always find time to attend webinars during the work 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. 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.

Announcing Fifth Annual LTNY Thought Leader Series!: eDiscovery Trends

February 16, 2015

The appearance of the dancing light bulb can only mean one thing – it’s time for another thought leader series! Over our nearly 4 1/2 years of our existence, eDiscoveryDaily has published several thought leader interviews from various thought leaders throughout the eDiscovery community, including an annual series of interviews at LegalTech New York (LTNY). For the fifth consecutive year, we’re pleased to introduce the schedule for this year’s series, which will begin next Monday, February 23.

Here are the interviews that we will be publishing over the next few weeks:

Monday, February 23: Brad Jenkins, President and CEO of CloudNine™. Brad has over 20 years of experience as an entrepreneur, as well as 14 years leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Wednesday, February 25: James D. Zinn, Managing Director of Huron Consulting Group. James is the Laboratory Director for Huron’s National Digital Evidence Laboratory. He manages a team of professionals in the efficient and effective performance of digital evidence and computer forensics examinations. James also helps organizations develop and improve their business processes and technology to provide efficient and cost-effective electronic discovery and computer forensic examinations.

Friday, February 27: Alon Israely, Manager, Strategic Partnerships, Business Intelligence Associates (BIA). Alon has over eighteen years of experience in a variety of advanced computing-related technologies and currently leads the Strategic Partner Program at BIA.

Monday, March 2: Tom O’Connor, Director of the Gulf Coast Legal Technology Center. 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.

Wednesday, March 4: Jason R. Baron, Of Counsel, Drinker Biddle & Reath LLP. Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice. An internationally recognized speaker and author on the preservation of electronic documents, Jason previously served as Director of Litigation for the U.S. National Archives and Records Administration and as trial lawyer and senior counsel at the Department of Justice. He also was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.

Friday, March 6: George Socha, President of Socha Consulting LLC and co-founder of the Electronic Discovery Reference Model (EDRM) and Apersee. As President of Socha Consulting LLC, George offers services as an eDiscovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support.

Monday, March 9: Ralph Losey, Partner and National eDiscovery Counsel for Jackson Lewis, LLP. Ralph is also an Adjunct Professor at the University of Florida College of Law teaching eDiscovery, a prolific author of eDiscovery books and articles, the principle author and publisher of the popular e-Discovery Team® Blog and the creator of the Electronic Discovery Best Practices (EDBP.com) model.

Wednesday, March 11: Craig Ball, Law Offices of Craig D. Ball, P.C.A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 1,500 presentations and papers. Craig’s articles on forensic technology and electronic discovery frequently appear in the national media. He currentlyblogs on those topics at ballinyourcourt.com.

Thanks to everyone for their time once again in participating in these interviews!

Want to look back at previous years’ interviews? Here are links to our 2014, 2013 and 2012 interview series.

So, what do you think? 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.

Appeals Court Reverses Award for Attorney Fees for Overbroad ESI Requests: eDiscovery Case Law

February 13, 2015

In Bertoli et al. v. City of Sebastopol, et al., No.A132916 (Ct. App. Ca. Jan. 20, 2015), the California Court of Appeals, while not disagreeing with the trial court’s finding that the plaintiff’s ESI request was “unfocused and nonspecific, unduly burdensome, and an alarming invasion of privacy rights”, disagreed that their Public Records Act (PRA) requests were “clearly frivolous” and reversed the trial court’s order for attorneys fees and costs.

Case Summary

The plaintiff, after being hit by a car while walking in a crosswalk, was rendered permanently physically and mentally disabled. Her attorney served PRA requests seeking electronically stored information (ESI) on the defendant in anticipation of her personal injury lawsuit. There was an initial request for collision reports, about which the defendant maintained it provided several records and offered for the plaintiff’s attorney to indicate which additional collision reports he wanted.

When the plaintiff served an additional 62 ESI requests, including requests to search private computers that the plaintiff believed could contain responsive documents, the defendant objected to the 62 separate requests as “overly extensive, overly broad and, in some cases, unlimited in time.” The defendant made suggestions to narrow the requests, and the plaintiff offered to pay for a third-party eDiscovery vendor to assist with the searches, but the disputes continued. Once the personal injury lawsuit was filed, the defendant set a deadline for the plaintiff’s attorney to complete his review. Ultimately, the parties could not reach an agreement on the ESI requests and the plaintiff filed a Petition for Writ of Mandate under the Public Records Act for relief.

In June 2011, the trial court – having “carefully weighed the competing interests at stake” – denied the petition. In its order, it noted that the defendant had shown a “remarkable degree of openness and cooperation” in its response to the plaintiff’s PRA requests and characterized the relief sought in the Petition as an “unprecedented fishing expedition” which would “constitute an alarming invasion of property rights, an extravagant use of limited city resources, and an unwanted green light for immoderate discovery.” Pursuant to the Public Records Act, the trial court deemed the petition “clearly frivolous” and ordered for the plaintiff to pay the defendant’s requested attorneys’ fees, which had risen from the initial request of $42,280 to $82,380. The plaintiff appealed the trial court’s finding of clear frivolousness in August 2011 and appealed the amount of fees awarded in March 2012.

The appellate court’s analysis agreed with the trial court’s finding that the plaintiff’s requests constituted an undue burden, but stated that “the mere fact that the Petition was impermissibly overbroad and therefore properly rejected by the trial court does not necessarily mean that it was entirely without merit. Rather, as stated above, it is an open issue whether and to what extent public records may be obtained from private computers under the PRA. Further, there was evidence that several current employees had responsive documents that were not disclosed and that certain city council members, at least, used their home computers for City-related business. Thus, despite the overbreadth of the Petition, it was not, on that basis, clearly frivolous.” As a result, the appellate court reversed the order for attorneys fees and costs.

So, what do you think? Should the unduly burdensome requests be enough to justify reimbursement of attorneys fees or was the appellate court decision correct? 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.

Despite Weather and Travel Issues, Exhibitors Happy with Last Week’s LegalTech: eDiscovery Trends

February 12, 2015

As we noted on Monday, for the second year in a row, weather caused significant travel delays and cancelled flights at last week’s LegalTech® New York 2015 (LTNY). As a result, on the last day of the show, I decided to tour the exhibit hall and ask some of the exhibitors their thoughts about this year’s show, how it compared to previous years and whether American Lawyer Media (ALM) should consider moving LTNY to a different (i.e., warmer) time of year. Here is some of their feedback.

Good Exhibit Hall Traffic, Despite the Travel Issues: By and large, most exhibitors I spoke to were happy with the traffic in the exhibit hall and felt it was comparable to previous years. Kelly Struck, Marketing Director at Huron Legal, noted that “we did have weather issues again early on, especially in Chicago where I came from. Despite that, traffic in the exhibit hall appeared to be steady and picked up on Wednesday as more people made it into New York for the show.” Shawn Gaines, Director of Marketing at kCura also observed that “the traffic around the booth was solid” and that their Relativity hands-on labs in Concourse A “got crowded, with particular interest in Relativity Analytics (standing room only!), Processing, and Binders”.

And, Debbie Caldwell, Communications Director at Exterro, was even more positive, stating that “Traffic was great for Exterro, despite the weather and travel issues. We had good traffic in the booth, back-to-back meetings throughout the show in our suites and great attendance at our Judges Survey Release press reception. We had a great show!”

Most Exhibitors Also Happy with ALM and the Hilton: By and large, exhibitors were happy with ALM’s handling of the show and the Hilton Hotel as the venue. Caldwell noted that “ALM always makes the process easy. Henry (Dicker, Executive Director of LegalTech) does a great job in orchestrating the event and taking care of the vendors. Exterro is happy with how the show is managed.”

Struck observed that “It seemed like there were a lot more advertisements this year, in the lobby and everywhere else as well”, but didn’t seem to mind, noting that “it’s a great opportunity to show the brand.” And, Alon Israely, Manager of Strategic Partnerships with BIA (and a thought leader interviewee again this year), stated that “the Hilton is a great venue” and expressed “a ton of confidence” in ALM “continuing to do a great job, even with the management changes resulting from the senior people retiring this year.”

Not everyone was completely happy, however. One area that was suggested where ALM could improve was the number of ALM contacts for exhibitors to coordinate with and communication issues internally within ALM, which one exhibitor noted cost them to lose the booth spot that they’ve had for years when updated contact information didn’t get to the correct contact in time.

For the Most Part, Exhibitors Prefer to Keep the Show at the Same Time of Year: While acknowledging the weather has caused travel issues, most exhibitors would prefer to keep the show at the same time of year. Struck noted that “I have heard a few other people suggest that. But, I think the majority of people coming to LegalTech expect it to be around the beginning of February and set their calendars accordingly.” She also observed that it’s “probably less expensive for ALM to host the show this time of year as well” and indicated that “if ALM were to ever consider moving the show, they would have to plan for it years in advance to give attendees and exhibitors time to adjust their schedules, product launches, etc.”

While acknowledging that he was “stranded in North Carolina en route” this year, Gaines indicated that “we do plan a lot of our activity around the show, so it’s good to have a consistent date that’s not next to other events like ILTA or our own user conference, Relativity Fest.” Caldwell was strongly against any move, stating that “having LegalTech New York take place at the beginning of the year is positive for Exterro and the industry. It allows us to share our vision early in the year with customers, prospects and the media on our corporate and product initiatives. Moving it to a different time could be disruptive and does not guarantee that we will eliminate weather or travel issues.”

So, what do you think? Should ALM consider moving LTNY to a different time of 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. 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.