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Electronic Discovery

Thursday’s ILTA Sessions – eDiscovery Trends

As noted Monday, Tuesday and yesterday, the International Legal Technology Association (ILTA) annual educational conference of 2014 is happening this week and eDiscoveryDaily will be reporting this week about the latest eDiscovery trends being discussed at the show.  This is the last day to check out the show if you’re in the Nashville area with a number of sessions still available and over 190(!) exhibitors providing information on their products and services.

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

11:00 AM – 12:30 PM:

LEDES – The Proliferation of Jurisdictional e-Billing Requirements and UTBMS Code Sets

Description: The ABA originally released four UTBMS (Uniform Task Based Management System) code sets in 1998. The original code sets were tailored to categorize services performed by counsel on litigation and bankruptcy matters, or to accommodate project and counseling work. The past few years have been marked by a dramatic increase in the number of UTBMS code sets available, with the development of additional (or revision of existing) code sets for jurisdictional billing (Canada, England and Wales) and for Governance, Risk and Compliance, Knowledge Management, Patent, Trademark, transactional and eDiscovery work. What’s going on with all this new development? How do jurisdictional laws and requirements impact the complexity of implementing UTBMS in law firms? What steps is the LOC considering to alleviate this burden? During this session we will take a look at the various jurisdictions worldwide requiring eBilling and how jurisdictional billing codes are proliferating as a result. Audience participation is encouraged!

Speakers are: Jane A. Bennitt – Global Legal Ebilling, LLC; Cathi J. Collins – Bridgeway Software.

Large Firm Hustle: An Oscar-Worthy Discussion Forum

Description: Large firms have unique pain points (and unique successes) worthy of a closer look. Join our thought-provoking discussion as we focus on issues — such as IT department relocation, DMS security and collaboration, information governance, email headaches and client-driven changes in legal IT — that profoundly affect larger legal organizations.

Speakers are: John Kuttler – Finnegan, Henderson, Farabow, Garrett & Dunner, LLP; Constance Hoffman – Bryan Cave, LLP.

3:30 PM – 4:30 PM:

E-Discovery Review Platform Selection – One Year Later

Description: Attend this follow up to last year’s popular panel discussion which focused on the search for and selection of e-discovery solutions. We have reconvened a panel to discuss the solutions they selected and will now share lessons learned from the complicated steps of implementation, rollout and adoption. The panel will also offer guidance and advice for all those contemplating or in the middle of the selection and deployment of an e-discovery solution.

Speakers are: Stephen Dooley – Sullivan & Cromwell LLP; Deanna E. Blomquist – Faegre Baker Daniels LLP; David Hasman – Bricker & Eckler LLP.

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

So, what do you think?  Are you planning to attend ILTA this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Wednesday’s ILTA Sessions – eDiscovery Trends

As noted Monday and yesterday, the International Legal Technology Association (ILTA) annual educational conference of 2014 is happening this week and eDiscoveryDaily will be reporting this week about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show if you’re in the Nashville area with a number of sessions available and over 190(!) exhibitors providing information on their products and services.

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

11:00 AM – 12:30 PM:

Aligning the Tenets of Information Governance with Your Firm’s IG Strategy

Description: Learn to develop an information governance strategy that incorporates the four dimensions of information risk management (records management, privacy, cybersecurity and e-discovery.) Our panel will share examples of how they integrated setting controls, reduced costs and improved compliance at their firms.

Speakers are: James Fortmuller – Kelley Drye & Warren LLP; Ann Ostrander – Kirkland & Ellis LLP; Brynmor Bowen – Greenheart Consulting Partners LLC; Terry Coan – HBR Consulting LLC.

What Happens on Facebook Doesn’t Stay on Facebook: Social Media Discovery Tools

Description: Social media are a rich, enormous source of information. We’ll take a look at both the legalities of using social media e-discovery and pros and cons of different tools, such as products for Facebook, Twitter, MySpace, LinkedIn, Website Archival and web-based email.

Speakers are: Julie K. Brown – Vorys, Sater, Seymour and Pease LLP; Doug Matthews – Vorys, Sater, Seymour and Pease LLP; Andrew Keck – ProFile Discovery.

1:30 PM – 2:30 PM:

A Checklist for Getting the Most Out of Your E-Discovery Vendor Relationship

Description: Today’s legal environment has made it nearly impossible to have litigation without some amount of e-discovery involving an outside vendor. E-discovery can be fully outsourced, done entirely in-house or involve a combination of both. Whatever your organization’s e-discovery needs, it’s important to know how to navigate the vendor relationship. Leave with a checklist of issues to consider and important questions to ask when evaluating e-discovery vendor services.

Speakers are: Kristen Atteberry – Faegre Baker Daniels LLP; Brett Tarr – Caesars Entertainment Legal Department; Babs Deacon – The EDJ Group Inc.

3:30 PM – 4:30 PM:

Anything You Can Do I Can Do Better … Predictive Coding vs. Human Review

Description: As Ethel Merman and Ray Middleton melodically contested in “Annie Get Your Gun”, “Anything you can do, I can do better; I can do anything better than you”. The disagreement continues when comparing predictive coding to human review. Come hear results of the Electronic Discovery Institute’s predictive coding study and get a non-biased, scientific view into the world of predictive coding. How did e-discovery service providers compare to each other? Do quality results and high cost go together? How did human review results compare to predictive coding? Do humans still rule?

Speaker is: Patrick L. Oot – Shook, Hardy & Bacon L.L.P.

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

So, what do you think?  Are you planning to attend ILTA this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Tuesday’s ILTA Sessions – eDiscovery Trends

As noted yesterday, the International Legal Technology Association (ILTA) annual educational conference of 2014 is happening this week and eDiscoveryDaily will be reporting this week about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show if you’re in the Nashville area with a number of sessions available and over 190(!) exhibitors providing information on their products and services.

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

11:00 AM – 12:30 PM:

ARMA: Information Governance: A Revenue Source Potential

Description: Law firms are under increased financial pressure due to a highly competitive market and clients demanding fixed-fee contracts. Information governance (IG) offers firms the opportunity to not only create a new practice but also to tap into a new source of revenue by leveraging existing relationships and experience. Attendees will learn about the impact of IG, opportunities for information governance at law firms and how law firms can help their clients with IG.

Speaker is: Martin Tuip – ARMA International

1:30 PM – 2:30 PM:

Ungoverned Information Equals Litigation Disaster: What Your Firm Should Do

Description: What’s the difference between well-controlled risk and unmitigated disaster? Information governance (IG) of course! Because client data often enters your firm through the litigation support process, effective risk management relies on successful collaboration between IG, litigation support and IT. Our experienced panel will share guidance on how to build successful, practical IG processes around e-discovery. We’ll focus on real-world consequences of IG failure in this realm and tactics firms are using to mitigate associated risks.

Speakers are: Caroline Sweeney – Dorsey & Whitney; Teresa Britton – Exelon Corporation Business Services Company; Brian Jenson – Orrick, Herrington & Sutcliffe LLP.

3:30 PM – 4:30 PM:

Tell It to the Judge – An Audience with Respected Jurist Judge Andrew Peck on Various E-Discovery Topics

Description: Judge Peck will look into his crystal ball to dicuss five prevalent e-discovery topics and answer additional questions from the audience. Come hear the views of an esteemed judge regarding these topics.

Speakers are: Thomas Morrissey – Purdue Pharma L.P.; Andrew J Peck – US District Court Southern District of New York.

For a complete listing of all sessions at the conference today, click here.  There’s even yoga!

So, what do you think?  Are you planning to attend ILTA this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Trends: Welcome to ILTA 2014!
 

The International Legal Technology Association (ILTA) annual educational conference of 2014 kicked off yesterday with several networking events, and begins in earnest today with the first day of sessions.  eDiscoveryDaily will be reporting this week about the latest eDiscovery trends being discussed at the show.  Over the next four days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.

If you’re in the Nashville area, come check out the show – there are a number of sessions available and over 190(!) exhibitors providing information on their products and services.  Perform a “find” on today’s ILTA conference schedule for “discovery” or “information governance” and you’ll get 8 sessions with hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

10:45 AM – 12:00 PM:

Law Department Operations Roundtable (Law Department Day)

Description: Law departments experience myriad issues unrelated to e-discovery. Let's get 'em out on the table! We'll discuss topics that interest attendees and hear from those who have tackled these issues.

Speaker is: Thomas Morrissey – Purdue Pharma L.P.

11:00 AM – 12:00 PM:

A Need for Speed: Leveraging Analytics in Document Review

Description: Dwindling are the days of straight linear reviews as the volume and complexity of data involved in e-discovery make it nearly impossible to deliver timely, error-free services. Our experienced panelists will describe and demonstrate how they have leveraged various strategies and advanced analytics to achieve accurate, timely and defensible results.

Speakers are: Greg R. Chan – Bingham McCutchen LLP; Michael Quartararo – Stroock & Stroock & Lavan LLP; Joy Holley – Bryan Cave, LLP.

12:00 PM – 1:30 PM:

Diving Deep Into E-Discovery: Law Department Roundtable (Law Department Day)

Description: For many law departments, significant portions of the budget and resources are allocated to e-discovery. Participate in this roundtable as we discuss e-discovery challenges in the short- to mid-term, e-discovery best practices, collaboration with vendors and law firms, and identification of high-performing providers and e-discovery tools and systems.

Speakers are: Eric Lieber – Toyota Motor Sales; Julie M Richer – American Electric Power Legal Department.

1:00 PM – 2:00 PM:

What Makes Up ESI Protocols? (Part I)

Description: A "Meet and Confer" in three acts! This panel will offer drama, intrigue and a good time for all. Watch two parties prepare for and then engage in a Meet and Confer session involving common e-discovery issues. Go behind the scenes as each party strategizes and formulates their "position," then observe as they work to put themselves and their clients in the best position possible. Remaining disputes will be argued in front of the "court."

Speakers are: Patrick L. Oot – Shook, Hardy & Bacon L.L.P.; Bryon Bratcher – Reed Smith LLP; Andrew J Peck – US District Court Southern District of New York; Steven L. Clark – Lathrop & Gage LLP; Candi Smith – Winston & Strawn LLP; Joy Holley – Bryan Cave, LLP; Craig Ball – Craig D. Ball, P.C.; Dera Jardine Nevin – Re:Discovery Law PC.

Build Enterprise Information Governance from the Ground Up

Description: Enterprise information governance programs are often as complex as the problems they intend to solve, incorporating governance needs, requirements from various internal and external stakeholders, and tight budgets. Here we’ll walk through best practices any organization can use to kick-start an IG program and make quick progress. We’ll discuss topics like assessing the current situation and capabilities, prioritizing risks and opportunities, gaining support from all stakeholders for an IG framework, and simple ways to start.

Speakers are: Rudy Moliere – Morgan, Lewis & Bockius, L.L.P.; Eric Mosca – InOutsource; Dana C. Moore – Vedder Price P.C.; Bennett Borden – Drinker Biddle & Reath LLP.

2:30 PM – 3:30 PM:

Predictive Analytics: Email Management Magic?

Description: Email management — managing mailbox size, archiving and retention — remains at the top of the list of email challenges identified by firms in the ILTA Technology Survey. A diverse panel of vendor and information governance experts will focus on specific predictive analytics applications and technologies that are available that could tackle email management. How do the solutions work, and what might they require from technical, cost and risk standpoints? Can predictive analytics perform email management magic?

Speakers are: Neil Etheridge – Recommind, Inc.; Avi Elkoni – Equivio; Jason R Baron – Drinker Biddle & Reath LLP; Sandra Serkes – Valora Technologies, Inc.; Mark Olson – Data Skill, Inc.

3:15 PM – 4:15 PM:

Services and Applications: Jump-Start the Vetting Process (Law Department Day)

Description: Join your law department peers for an interactive discussion about matter management, e-discovery and legal holds. In the unique format of "mini-panels," participants will engage in discussions on each topic in three 15-minute breakout sessions. This will allow for more intimate group discussions. The types of questions and topics to be vetted in each mini-panel include various software solutions and how your organization utilizes them, processes and procedures, what is working best for you and key criteria for selecting the right fit for your company.

Speakers are: Glenn O'Brien – Massachusetts Mutual Life Insurance Company; Amie Dutey – Nationwide Mutual Insurance; Anthea Cooper – Nationwide Mutual Insurance; Donald Knight – PNC Bank Legal Department; Martin Susec – Nationwide Mutual Insurance.

4:00 PM – 5:00 PM:

What Makes Up ESI Protocols? (Part II)

Description: This is part two of our "Meet and Confer" in three acts! This panel will offer drama, intrigue and a good time for all. Watch two parties prepare for and then engage in a Meet and Confer session involving common e-discovery issues. Go behind the scenes as each party strategizes and formulates their "position," then observe as they work to put themselves and their clients in the best position possible. Remaining disputes will be argued in front of the "court."

Speakers are: Patrick L. Oot – Shook, Hardy & Bacon L.L.P.; Bryon Bratcher – Reed Smith LLP; Andrew J Peck – US District Court Southern District of New York; Steven L. Clark – Lathrop & Gage LLP; Candi Smith – Winston & Strawn LLP; Joy Holley – Bryan Cave, LLP; Craig Ball – Craig D. Ball, P.C.; Dera Jardine Nevin – Re:Discovery Law PC.

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

So, what do you think?  Are you planning to attend ILTA this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Nearly Two Thirds of ILTA Attendees are from Large Firms – eDiscovery Trends
 

One of the biggest legal technology shows of the year, the International Legal Technology Association (ILTA) annual educational conference for 2014 will take place next week at the Gaylord Opryland in Nashville (August 17 thru August 21).  eDiscoveryDaily will be reporting next week about the latest eDiscovery trends being discussed at the show.  According to InsideLegal.com, almost two thirds of the firm attendees will come from firms with more than 200 attorneys.

As noted by their graphic (available here), 62% of the attendees (based on conference pre-registrants as of August 12) will come from firms with more than 200 attorneys.  Here is the breakdown:

  • 1-50 Attorneys: 13% of attendees;
  • 51-100 Attorneys: 11% of attendees;
  • 101-200 Attorneys: 14% of attendees;
  • 201-400 Attorneys: 18% of attendees;
  • 401-1,000 Attorneys: 31% of attendees;
  • 1,001+ Attorneys: 13% of attendees.

InsideLegal also provides a breakdown of registrants by country – not surprisingly, 1,345 out of 1,466 attendees (nearly 92%) as of July 29 are from the US.

We will identify the sessions each day that relate to eDiscovery and Information Governance, so stay tuned!

So, what do you think?  Are you attending the ILTA conference this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Blog Throwback Thursdays – How Databases Were Built, Circa Early 1980s, Part 1
 

In the late 1970s and early 1980s, very few law firms had internal litigation support resources:  firms did not have litigation support staff or technology.  In 1985, I was offered a litigation support position at a major New York City law firm (which I didn’t accept),,, that’s about when large firms began developing internal litigation support capabilities.  Up until then, most litigation teams relied on vendor services and tools, and more often than not litigation team attorneys were directly involved in working with vendors to design and build databases. In 1980 I took a project management position with a vendor, responsible for overseeing database-building projects. In the next few blog posts, I’m going to describe a typical project and how things worked.

The Vendor Selection Process: This of course was not a ‘step in the project’ – it was part of the sales process. It’s worth mentioning here though, because this was a very big deal, on every project. Because databases were only built for the huge, bet-your-company cases, every project was a big project. For any given project, a vendor would receive a Request for Proposal, which usually required a voluminous, detailed response.

Database Design and Planning: We often spent days in meetings with attorneys designing and planning a database.  Back then, full text wasn’t included in databases and images weren’t included in databases.  That meant that the information that was “coded” for a document was very, very important — It was the only thing in the database.  We needed to learn about a case, learn about the documents, and find out how the attorneys expected to use the documents – this was necessary so that we could advise litigation teams on a coding scheme that would meet their needs.  Remember, this was back before PCs. Back before the Internet. Back before Google. Business people — as a rule — did not understand databases or searching. We, as vendors and consultants needed to be educators, and we needed to advise our attorney clients and recommend – on a case-by-case basis — a design that would meet their needs.

Project Preparation: Sometimes we did projects at our vendor facility, and other times clients requested that we establish a ‘coding operation’ at their site. In either case, we needed to assemble a team of coders. These were usually temporary employees hired for a specific project. Since all the cases we did were big cases, the teams were often substantial. It wasn’t at all unusual to start with a team of 50 or more. The largest project I worked on used a coding team of over 1,000. Of course there were other preparation tasks, but assembling the coding team was the most time consuming. When ever possible, we used people from prior projects, but inevitably, project managers spent a lot of time interviewing candidates for coding positions on every new project.

In next week’s post, we’ll talk more about how a coding project worked.

Please let us know if there are eDiscovery topics you’d like to see us cover in eDiscoveryDaily.

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

Other Production Parameters from a Provider’s Point of View – eDiscovery Best Practices

Yesterday, we began to discuss some of the production parameters that CloudNine Discovery collects from our clients in order to ensure that the production includes the correct documents in the required format.  But, wait – there’s more!  Let’s take a look at some other examples of information we collect from our clients.

  • Naming Structure for Files: Files that are produced follow some sort of naming convention and structure, typically either the original file name or some sort of naming convention that involves a unique identifying prefix followed by a zero-filled number (e.g., ABC000001.{file extension}).
  • Image Endorsements: Of course, images that are produced typically include a Bates number on each page that involves a unique identifying prefix followed by a zero-filled number (see example above), but endorsements can also include special endorsements such as a confidential stamp, so we provide a place on our questionnaire for clients to provide additional endorsement instructions for text and placement.
  • Metadata Fields and/or Tags to Be Produced: If the client is producing metadata, it’s obviously important to know the fields to be produced and the desired order.  We also ask them to specify the delivery format – the typical formats are CSV (comma separated values, which can be loaded into Excel) or DAT (data) file.
  • Populate Production Numbers Back into Database: When clients produce documents, they typically want to track the production numbers, so we give them the option for us to create new fields in their (OnDemand®) database with those production numbers.
  • Branded Images Back into Database: We also offer the same option for putting images branded with the Bates numbers and other endorsements back into the database, so that the client can easily reference the production number when looking at the page.
  • Load File: Often parties agree to produce load files to make it easy for opposing counsel to load the documents and metadata into their own eDiscovery platform, so we will create load files in several industry standard formats to support that requirement.
  • Delivery Method for Production: There are several options for delivering documents and data including CD or DVD, portable hard drive or electronically via File Transfer Protocol (FTP).
  • Where to Send Production: If the client selects CD, DVD or Portable Hard Drive, we require the Name, Street Address and Phone Number where the media is being delivered, if they select FTP, we need an FTP address (and any credentials, if necessary, to access it).
  • Name of Production Set: We request that each production set be uniquely named for later reference purposes, which is especially useful when there are multiple productions to track.
  • Other Instructions: Believe it or not, all of the parameters that we’ve identified over the past two days don’t cover every scenario, so we provide a place on the questionnaire to provide any other instructions.  Those can range from special handling for other file types, extra copies requested, etc.

As you can see, we collect a lot of information from our clients at production time to ensure a proper production.  There are a lot of variables to consider, so it’s important to be consider those variables not just when producing, but WAY back at the beginning of the case, to ensure that you will be able to fulfill your discovery obligations to opposing counsel.  Hope this list of parameters was helpful.

So, what do you think?  How do you ensure proper productions?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Production from a Provider’s Point of View – eDiscovery Best Practices
 

We sometimes forget that the end goal of the discovery process is production: to produce responsive electronically stored information (ESI) to opposing counsel.  But, do you realize how many parameters and potential permutations there can be to the production process?  Let’s take a look.

eDiscovery providers like (shameless plus warning!) CloudNine Discovery handle productions for our clients routinely, (in our case, often out of our eDiscovery review application, OnDemand®).  When a client asks for a production, there are a series of questions to ask to ensure that the production includes the correct documents in the required format.  To ensure that and avoid potential confusion, we provide a questionnaire to the client to complete to define the parameters of that production.  Examples of information we collect from our clients:

  • Documents to be produced: Typically, we expect the client to identify a tag that was applied to the documents (especially when the documents are in OnDemand) to be used to identify the documents to be produced (e.g., To Be Produced, Responsive-Produce, etc.) and confirm the count of documents that are included in that tag.  If the count doesn’t match the tag, we resolve with the client before proceeding.
  • Output Formats to Include: Productions can be native or image, may or may not include Optical Character Recognition (OCR) or extracted text and may or may not include metadata.  It’s important to confirm the formats to be produced, which can include all or just some of the available formats.
  • Format of Images: If images are to be produced, we confirm whether they single or multi-page TIFF, or in Adobe PDF.
  • Format of OCR/Extracted Text Files: OCR files can also be produced either in single or multi-page files, so we enable the client to specify the format.
  • Handling of Excel Files: Because they are often not formatted for printing, Excel files often don’t image well and generate a high number of image pages.  So, we provide options for producing a placeholder image along with the native Excel file (which is the default option), or TIFFing all or part of the Excel document.
  • Handing of AutoCad Files: Though less common, AutoCad DWG files can also be problematic to convert to TIFF, so we provide a placeholder and native option for this file type as well.
  • Handling of Redactions: If redactions are present, we confirm the production of documents with the redactions present.  We also recommend that (and assist clients with) removal of redacted text from OCR files of the redacted images to ensure that there are no inadvertent disclosures of privileged or confidential information via those text files.

This is just the beginning of what we ask clients.  Tomorrow, we will cover other information we collect to ensure a proper production.

So, what do you think?  How do you ensure proper productions?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Privilege Not Waived on Defendant’s Seized Computer that was Purchased by Plaintiff at Auction – eDiscovery Case Law

In Kyko Global Inc. v. Prithvi Info. Solutions Ltd., No. C13-1034 MJP (W.D. Wash. June 13, 2014), Washington Chief District Judge Marsha J. Pechman ruled that the defendants’ did not waive their attorney-client privilege on the computer of one of the defendants purchased by plaintiffs at public auction, denied the defendants’ motion to disqualify the plaintiff’s counsel for purchasing the computer and ordered the plaintiffs to provide defendants with a copy of the hard drive within three days for the defendants to review it for privilege and provide defendants with a privilege log within seven days of the transfer.

In this fraud case, after several of the named defendants settled and confessed to judgment, the plaintiffs obtained a Writ of Execution in which the King County (Washington) Sheriff seized various items of personal property, including a computer owned by one of the defendants.  The computer was sold at a public auction, and an attorney for the plaintiffs outbid a representative sent by the defendants and purchased the computer.  The plaintiffs sent the computer to a third party for analysis and requested a ruling as to the admissibility of potentially attorney-client privileged documents contained on it, while the defendants contended the actions of the plaintiffs violated ethical rules, and requested that the plaintiffs return the computer to defendants, and also requested that the plaintiff’s attorneys should be disqualified from the case.

With regard to the plaintiff’s actions, Judge Pechman ruled that plaintiffs’ acquisition of the computer was not “inherently wrongful”, noting the plaintiffs’ claim that they had not reviewed the materials on the computer at the time of the motion.  She also determined that plaintiff’s “use of a third party vendor to make a copy of the hard drive is not equivalent to metadata mining of documents produced through the normal discovery process, because whereas the hard drive might plausibly contain many documents unprotected by any privilege, metadata mining is expressly aimed at the kind of information one would expect to be protected by attorney-client privilege and/or work-product protections”.  As a result, she denied the defendants’ motion to disqualify the plaintiff’s counsel.

As for the waiver of privilege, Judge Pechman used a balancing test to determine waiver “that is similar to Rule 502(b)”, which included these factors:

  1. the reasonableness of precautions taken to prevent disclosure,
  2. the amount of time taken to remedy the error,
  3. the scope of discovery,
  4. the extent of the disclosure, and
  5. the overriding issue of fairness.

Using the analogy of where “an opposing party discovers a privileged document in the other party’s trash”, Judge Pechman considered the potential waiver of privilege.  However, because the defendant stated in a declaration that she had “someone at her office” reformat the hard drive on the computer and install a new operating system and believed her documents had been erased and were not readily accessible, she related it “to the memo torn into 16 pieces than a document simply placed in a trash can without alteration”.

As a result, Judge Pechman determined that given “Defendants’ prompt efforts to remedy the error by filing a motion with the Court and the general sense that parties should not be able to force waiver of attorneyclient privilege through investigative activities outside the discovery process and a superior understanding of the relevant technology, the Washington balancing test weighs against waiver.”  She also and ordered the plaintiffs to provide defendants with a copy of the hard drive within three days for the defendants to review it for privilege and provide defendants with a privilege log within seven days of the transfer.

So, what do you think?  Were the plaintiff’s counsel actions ethical?  Should privilege have been waived?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Improving your eDiscovery Vocabulary is as Easy as 123 – eDiscovery Best Practices

Want to be better equipped to speak the “lingo” of eDiscovery and understand what you’re saying?  Here’s a glossary that can help.

As provided via the JDSupra Business Advisor site, Electronic Discovery: Glossary of 123 Commonly Used Terms, provided by Seattle law firm Lane Powell PC, is a glossary of 123 commonly used terms to help you navigate the world of Electronic Discovery.  For those of us who have been in the industry for years, call them Terms of Endearment!

From Active Data to Zip, the glossary defines 123 total terms related to eDiscovery as well as technology in general.  You get discovery terms defined ranging from Bates Number and Chain of Custody to Redaction and Spoliation and technology terms from Cache (pronounced “cash”) and Compression to Unallocated Space and VPN (Virtual Private Network).

You can review the terms from the window on the JD Supra site or download the PDF document for reference purposes.  This list comes in handy for anyone who may need a better understanding of eDiscovery and technology or simply needs a refresher on certain terms.

I did not see definitions for all of the EDRM phases (e.g., no definitions for Identification, Collection, Analysis, Processing or Presentation) and some other terms that might be useful to define (e.g., Searching), so maybe they can eventually issue a supplemented version that has 144 defined terms.  Now, that’s gross!

By the way, today is the last day that you can nominate your favorite law blog in the ABA Journal 8th Annual Blawg 100.  Get your nominations in by 5:00pm!

If you have enjoyed reading eDiscovery Daily over the past year and found our blog to be informative, we would love to be recognized!  Feel free to click on the link here to nominate us!  We appreciate the consideration!

There are other excellent legal technology blogs out there.  Click here for our previous post which lists a few of our favorites.

So, what do you think?  Do you speak fluent eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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