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Electronic Discovery

Adam Losey of IT-Lex.org – eDiscovery Trends

This is the sixth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Adam Losey.  Adam is president and editor-in-chief of IT-Lex.org, a technology law not-for-profit educational and literary organization and an attorney at Foley & Lardner LLP.  Adam also served as an adjunct professor at Columbia University, where he taught electronic discovery as part of Columbia’s Information and Digital Resource Management Master’s Program.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

There were several trends that I saw at the show this year.  I think there was more emphasis this year on data security and privacy.  I don’t think that anybody is doing anything all that differently when they’re hosting data.  I think that they were – hopefully – going through the same steps for security before, but they’re emphasizing security more in marketing.  There was a lot more emphasis on ease-of-use solutions.  Candidly, I was expecting for some of the providers that are in this space to merge or go away and I know some of that is happening, but I saw increased competition in the marketplace in a variety of fields, which surprised me a little bit, but is good for the market.  I also saw more dedicated web-based litigation hold management products out there than I had seen in the past.  Unfortunately, I wasn’t able to go by every booth, so my experience is largely anecdotal and I may have missed some other trends.

As for trends for 2014, on the legal front, I expect more litigation on spoliation.  Again, my experience is anecdotal, but I happen to handle that particular issue a lot.  I’m seeing it pop up in a lot more cases; if not spoliation itself, then requests by parties to dig into their opponents’ search and review processes, just as a matter of course in the litigation if it is of any size.  In the past, I didn’t see that for any case of any size- it typically only came up in larger cases.  I don’t know if that’s decreased trust or a “trust but verify” Reagan type of approach, but it has become the norm in my world.  These days, many people want to do discovery on your eDiscovery, again just as a matter of course.  Typically, in the past, you’d only see that come up if there was any issue or deficiency with a production where someone could point to something wrong with your efforts.  But, it may not always be appropriate to do discovery about discovery, short of any issue identified with a production.

On the vendor front, I see a lot of vendors that have “click and drag” tools and solutions for small or medium sized firms or cases, which I think are really cool and I’m looking forward to playing with some of them.  From ingest to the end, a single person or lawyer can handle everything, clicking and dragging files to get them processed.  Obviously, sometimes issues come up in processing, so I’m wondering how the vendors handle those.  But, there’s a lot of cool stuff that I saw this year that I’m looking forward to playing around with.

The last trend that I see is a lot of interest and emphasis on forensic collection from mobile devices and social media collection.  That’s no surprise because in cases that I deal with, that comes up all the time.  I’ve done plenty of collections from iPhones and other devices.  The problem is that when you have those solid state drives, collections can be a little weirder and forensics can be a little more difficult.  And, social media collection is always somewhat of a “tricky bird” for a variety of reasons, not the least of which is you sometimes have a lot of layers in that onion that make it harder to collect from those sources.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

Excellent question.  I see some of the rules being approved.  I would want to fact check and make sure I’ve got the changes right, but I imagine that changes related to timing of depositions and number of witnesses and other minor procedural “quirks” will be passed, though I don’t see those as having a big impact on litigation.  I think that the number of hours per deposition is trimmed by an hour or two.  In all of the depositions that I’ve been involved, time of deposition is not a major controversial point.  If you can’t work that out with the other side, that doesn’t bode well.  But, for Rule 37(e), the rule that essentially creates a new standard for the imposition of spoliation sanctions, I hope that doesn’t pass.  I think it raises a lot of issues whether or not you think it’s necessary.  There’s a big issue about whether federal or state law governs this stuff.  When you’re litigating spoliation on a diversity case, it’s presumably governed by state law.  Or, so some cases say, others say “no, it’s a procedural issue, it’s governed by federal law”.  But, if they pass that rule, you suddenly have a new standard for spoliation in federal court, which will lead to all sort of nasty issues of “forum shopping” where people who destroy things will want to be in federal court, believe it or not.  Which is unusual, because there will be a standard that makes it difficult to get spoliation sanctions.

Judge Francis had a well-reasoned and superbly reasoned opinion addressing spoliation, where he held that “[The] sanction [of an adverse inference] should be available even for the negligent destruction of documents if that is necessary to further the remedial purpose of the inference. It makes little difference to the party victimized by the destruction of evidence whether that act was done willfully or negligently. The adverse inference provides the necessary mechanism for restoring the evidentiary balance. The inference is adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss.” (Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y. 1991)).

It does not matter whether the spoliator was a “cackling villain twirling his mustache” or an innocent employee that pressed the wrong button.  Spoliation addresses prejudice a party suffers as a result of the destruction of evidence needed to prove a case. It doesn’t really matter to the victim what the other party’s intent was.  You just want to be put in the position where you would have been if the evidence had not been destroyed.  So, the law until now in most jurisdictions (which I think had it right) said that if you have possession, custody and control of the ESI and you knew that you should have preserved it and it gets destroyed, we’re not going to shy away from leveling the playing field based on that.  The new Rule 37(e) is going to make it night impossible for some judges to keep the playing field level.

I’m not sure if that is going to pass or not, I have no special insight into that process or those committees.  But, although we do have some chaos now in that there are different standards in different jurisdictions, but I like for judges to have flexibility generally.  I think that “bright line” rules, while they may initially have some attractiveness in uniformity, take away flexibility from the good judges we have, who are smart people.  With flexibility, I think you see justice more than if you have a hard iron rule and the conflict of law issues that are going to come up as a result will be tricky.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

Well, again, my observations are anecdotal.  I’ve “drank the Kool-Aid” like many people that you’re probably interviewing.  So, most of the people that I deal with have some knowledge of eDiscovery.  But, in the Bar at large, I do think things are getting a lot better.  I think that the big barrier to education in a lot of cases is that you get a lot of eyes glazed over by a certain type of person when you start to talk about eDiscovery.  Much like my eyes might glaze over if you talk about particular provisions of the partnership tax code.  Some people love tax law – I have a friend that I went to law school with that is enamored with tax law and he’s an awesome tax lawyer.  And, he really likes that, but he doesn’t like eDiscovery.  So, it’s “different strokes for different folks”

Unfortunately, unlike partnership tax law, if you’re going to be litigating, you have to know about eDiscovery.  Ironically, my first trial was in Tax Court, on a pure tax issue, and some pretty major eDiscovery issues popped up in the middle of trial in a dramatic, surprising, way – so even the tax litigator needs to know eDiscovery basics.  So, the real challenge on eDiscovery education isn’t reaching the people who already follow this and already read the blogs – they’re well versed in it.  It’s important to provide something that’s funny and entertaining, if you can, so that you can bridge that interest gap with either humor or writing or presentation skills.  I think a lot of organizations are doing that and I feel that more people know about it now.  Certainly, the judiciary does.  The judges are very well versed in a lot of eDiscovery issues, at least generally.

But, at firms, there are some folks that don’t want to learn it, but realize it’s important, so they delegate.  In most situations, I don’t see anything wrong with that.  If you have a senior trial lawyer that’s in his 80s and he’s an excellent presenter and trial lawyer, but does not want to handle the “nitty-gritty” of eDiscovery and he brings someone on to handle that for him, I don’t see anything wrong with that.  The rules of professional conduct, at least in Florida, allow that too.  In competence, we have an ethics opinion in Florida (I think it’s 0602) that says you have a duty to competence that extends to an understanding of eDiscovery.  I think 0602 talks about metadata scrubbing and emails, but one of the ways that you can make up that competence shortfall is by involving other lawyers and having them help with the things you don’t know or understand, and I don’t see anything wrong with that.  I’ve seen a lot of companies actually (and I agree with this and love doing it), have firms or individuals just to serve as eDiscovery counsel to look over the shoulder.  They may use different firms for different litigations, but they want somebody that knows how the business works really well that can look over the shoulder of outside counsel or in-house folks in every case, which I think is a good trend.

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

There are a couple of quick points that I’d like to hit on with IT-Lex.  One, for law students and young lawyers, we have the highest paid cash prize writing competition in the country.  So, if you are a law student or know a law student, by all means, check it out or send them the link.  The cash prize is big, but it’s not the biggest part of the prize – the real prize is that the winner gets to headline at the Innovate conference, which is a huge career springboard.  Plus, they get invitations to become members.  So, I really want to emphasize the writing competition.

On top of that, our Innovate conference is going to be coming up October 9 and 10 of this year, so we’d love to see people there.  If you want to sign up as a friend of IT-Lex, you can do so for free and we always welcome involvement from folks in the community with what we do.  So, look at what we do and don’t be shy to reach out is the quick message.

Thanks, Adam, 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 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.

ASU-Arkfeld eDiscovery and Digital Evidence Conference – eDiscovery Trends

Apparently, next week is the week for eDiscovery conferences.

Last week, I told you about a two-day program being hosted next week in my hometown of Houston by The Sedona Conference®.  Then, on Tuesday, I told you about the Second Annual Electronic Discovery Conference for the Small and Medium Case, hosted by the Levin College of Law at the University of Florida and EDRM also next week.  Now, here is another conference alternative for next week – the Third Annual ASU-Arkfeld eDiscovery and Digital Evidence Conference, hosted by Arizona State University and noted eDiscovery expert Michael Arkfeld.

The conference will be held next week, March 12-14 at the Sandra Day O’Connor College of Law / Armstrong Hall at Arizona State University in Tempe, Arizona.  As the downloadable brochure states, the conference will be “[f]ocusing on the practical issues affecting the discovery and admission of electronic information.  Attendees will be participating with thought leaders and practitioners of eDiscovery on issues impacting legal professionals locally, nationally, and globally.”

The conference will include:

  • noted eDiscovery judges, including Shira A. Scheindlin (who will be giving the keynote address on the first morning), John Facciola, and Craig Shaffer;
  • knowledgeable in-house counsel and eDiscovery specialists, including Robert Amicone from Office Depot, Tom Morrissey from Purdue Pharma and Kit Goetz from Qualcomm;
  • distinguished outside counsel, including Robert Singleton from Squire Sanders, Mark Sidoti from Gibbons, Joy Woller from Lewis Roca Rothgerber, Maura Grossman from Wachtell, and Ariana Tadler from Milberg and;
  • dedicated litigation support professionals including Tom O’Connor, Steven Goldstein, and Anne Kershaw.

Topics run the full range of the eDiscovery life cycle – from information management strategies to dispose of “zombie data” (I like that term) to meet and confer, preservation, collection, data analytics and technology assisted review, production formats, eDiscovery for criminal cases and cross-border issues and eDiscovery project management best practices.  You can earn up to 15 hours of CLE credit for attending.

It’s too late for early bird pricing, but regular attendees can still register prior to the show for $595.  Government, non-profit and paralegal registrants can do so for $345; if you’re a student, it only costs $95 to attend.  Those rates are $695/$395/$115, respectively, if you wait until the day the show starts.  Discounted group rates are also available.  You can register for the conference online here.

So, what do you think? Do you plan to attend the program, or perhaps one of the other programs next week? 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.

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

This is the fifth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done 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 their clients 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 significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

Once again, I did not see much differentiation between different exhibitors.  There was nothing that stood out to me as being a groundbreaking differentiator.  That said, it seemed a lighter show, less people.  But, even though it was a lighter number of attendees, the caliber of attendees seemed a bit higher.  This is all coming from my gut as I have no real numbers or metrics to back this up, but, the conversations we had at our booth seemed, on average to be a little more substantive than in previous years.

As for trends, there seems to be more discussion about the high-tech trends, such as cloud computing and analytic technologies.  Instead of people talking about these technologies generally, it seemed as though people were talking about these technologies more specifically.  Not to say that they were differentiated, they were still non-differentiated.  But, there were more people talking about cloud technologies and there was a big CLE about it.  And, more people were talking specifically about analytics, not just saying “you can do all of this culling”, but showing specific examples, with charts, graphics and other neat elements that indicate searching/analytics results.  So, there seemed to be a bit more specificity around technology and, together with that, advanced technology.  But, to be honest with you, there was nothing at the show that really blew my mind.  Nothing that was groundbreaking, nothing that looked like it would initiate a shift in the industry.  If anything, it felt like, other than the few specifics around high-tech, similar to previous years.

I will say that some of the attendees that I talked to, some of the GCs and outside counsel firm attorneys, said they spent more time inside the educational components at LegalTech instead of the exhibit hall.  So, as an exhibitor, that doesn’t make me overly happy to see that, but, as a knowledge leader in the industry, I’m very happy to see that.  I know that ALM has always tried to do a good job with the educational components.  And, I think this year attendees took that part of it more seriously than in the past several years.  It seemed that most of the networking that my BIA colleagues and I did was at the educational sessions, not necessarily on the floor.  I think that’s a positive indicator for the people who made it to the show.

As for general trends in 2014, I think you will see corporations start to take control of their technology, not only for in-house solutions, but also for the solutions that outside counsel will be providing to them.  Today, corporations tend to trust their outside counsel firms as to the review tools and other technologies that they use, but I think that it will be much more of a coordinated effort going forward.  The level of maturity for corporations around eDiscovery is being raised.  What the means in practical terms is that they will work more closely with their trusted vendors.  I don’t believe that corporations are going to bring everything in-house and that vendors will be out of luck, though a lot of other people believe that will happen.  I believe that services business for eDiscovery will remain strong for the next decade or longer and the dynamic of obtaining those services will morph into the corporation sitting side-by-side with the law firm making those services decisions.

That trend was evident at the show: you heard it from different vendor booths and the way that they were pitching their products and you heard it from actual in-house attorneys that were attending.  I saw at least two cases where the GC and his outside counsel attorney were walking around the show together – hopefully, the GC wasn’t getting charged for that time!  You’re starting to see corporations take more control of the reins, but not in the way we always thought where they dictate to the outside counsel what vendors to use.  Instead, it’s much more of a collaborative effort and I think you’ll see much more of that over the next several years.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I see those being incredibly important.  The more we can get specificity around what needs to happen early in a case and the more that specificity can be codified, the better off we will all be.  If you look at all of the wasted money spent over the last few years, some of that is solved by the new rules, specifically in the area of preservation.  We’re in the business of selling preservation software, so I’m excited about the potential changes.

But, if I step out of that personal perspective, the changes still make a lot of sense because, today, you still have a lot of effort being spent by parties figuring out legal hold and preservation issues.  Who was put on hold, when were holds put in place, what data was and was not preserved.  That usually happens when a problem occurs – you have a peak of expensive lawyering and legal maneuvering with motions practice, etc and typically when it’s already too late.  So, some of these new rules which are focused on discussions early in the case with respect to preservation should nip a lot of that in the bud.  Now, instead of fighting four months later after discovery closes whether some system was preserved or not, that should get covered early-on with some of the new rules that will hopefully go into effect.  So, I’m very excited about the rules changes, not only as a vendor in the space, but also as a legal professional in general.  The more efficiency that you can create early in the matter, the more money you can save and the more you can focus on the substantive issues and on the merits of the case.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

I do wholeheartedly agree.  Our industry is funny because the cost of goods sold for eDiscovery solutions and services is higher than for most other industries else because of the fact that we have to educate with almost every sale.  There are a lot of resources out there, including efforts by many respected thought leaders and all of the great blogs out there, and many providers have an educational component to their website.  So, you’re right that there are a lot of quality resources for attorneys at their fingertips, yet there are still so many attorneys that simply don’t understand it.  Most of the small business and solo practitioners market doesn’t understand eDiscovery and many GCs of mid-sized corporations don’t either.  And, frankly neither do many “corner office” partners at Amlaw200 firms.  They know about it at a high level and understand that it’s important, but they don’t know enough detail.  But, the good news is that with the advent of those educational resources and the fact that every eDiscovery provider and vendor teaches as they sell, those legal professionals don’t need to learn that much – even getting four or five feet “underneath the water” instead of thirty feet under would be helpful.

As to why they don’t know more, I don’t know.  Maybe attorneys are so used to having experts to rely on and because they feel they know enough about eDiscovery, that they don’t need to know any more detail or process understanding unless a problem arises.  I don’t have an explanation as to why, with all of these great resources available, that most legal professionals don’t have more knowledge.  Unless it’s just that they have a “technology block” and are still afraid of the technology aspects of that knowledge base.  To improve things, I believe that vendors will continue to have to sell in an educational manner, with one half of the sale educating the attorney and the other half focused on closing the deal.  And, hopefully more law schools will continue to incorporate eDiscovery into their curriculum.  But, I don’t see the issue of more knowledge across a wider audience of legal professionals getting a whole lot better anytime soon.

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

BIA continues to be focused on bringing the best technology and workflow that we can to the left side of the EDRM model – such as legal hold, preservation and ECA.  Legal hold activities such as notifying and tracking employees, interviewing custodians and creating questionnaires to do so, and suspending practices such as email auto deletion, and collection of ESI is what we’re all about.  We’ve been really integrating those areas of the left side of the EDRM into one another.  Today, TotalDiscovery employs much more of a circular workflow than it did even a year ago.  It used to be much more siloed – you would implement a legal hold and then do a custodian questionnaire and the collection.  Now, we’ve integrated those steps a lot more.  Hold flows into the questionnaire process, you can seed collections with data from the questionnaires, and so forth.  We’re also continuing to serve up as much intelligence on the data as possible.  You don’t have to wait until you get further down the right side of the model to understand the type of data you have or how much you have.  Obviously, you still need to be able to have a good review tool to perform real hard core research and analysis, but to the extent we can help attorneys more knowledgeable about their data before they get to review, the better it will be for them.  That’s our goal.  So, a lot of that comes from integrating different parts of the process and not focusing on just one area of the process, but gleaning intel from all of them and summarizing at a high level for the attorney.  Also, our enterprise features are really strong and not something we talk about a lot (but we probably should) – stuff like connecting to Active directory, Exchange and other systems – real simple to do as a default configuration.

Also, our flat fee pricing model is a source of pride for us and it’s been very successful.  Flat-fee pricing, unlimited use of functionality and overall budget predictability are values we offer and guarantee – which is unique in the market.  Also, one of the good things about BIA is that we’re a technology company and we’re always adding features – we’ve now moved to a tighter cycle with a new feature or function added every four to six weeks.  Sometimes it’s a small feature, at other times, it’s a large feature we’ve been working on for a while.  It keeps it very fresh and we’re able to do so because of the way we’ve built the product with the cloud and web technologies that we use  So, BIA continues to focus on what we’re good at – improving the workflow and functionality for the tasks compelled by companies on the left side of the EDRM model, leading up to review.

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 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 Conference for Small to Medium Cases – eDiscovery Trends

Last week, I told you about a two-day program being hosted in my hometown of Houston by The Sedona Conference®.  Here is another conference that you can attend no matter where you are, for a very reasonable price!

The Levin College of Law at the University of Florida and EDRM is hosting its second annual electronic discovery conference for the Small and Medium Case this year on March 14.  As the registration page states:

“The University of Florida E-Discovery/EDRM Conference for the Small and Medium Case this year focuses on letting your data tell the winning litigation story. E-discovery is more than responding to production requests. At its heart, e-discovery is locating, parsing, and restructuring the voluminous and diverse case data – emails, texts, word processing docs, social media postings and messages, databases, digital photos, browsing history, computer logs, and more – into a coherent, winning story.”

The co-chairs of the program are William Hamilton, Executive Director, University of Florida E-Discovery Project; Partner, Quarles & Brady LLP; and Provost at Bryan University (other than that, he’s not busy) and George Socha, Co-Founder, EDRM; and President, Socha Consulting LLC (and perennial thought leader interviewee on this blog).

Presenters include attorneys from firms such as Stroock & Stroock & Lavan, Phelps Dunbar, Shook, Hardy & Bacon, Vorys, Sater, Seymour & Pease; vendors such as kCura, Nuix and Nextpoint and iConect and three Florida judges.  The agenda starts at the Levin Advocacy Center at UF Law at 8:00am ET for breakfast and goes through the reception that ends at 6:30pm ET.  Sessions are from 9:00am to 5:20pm ET.  Here’s a tentative agenda and a complete list of presenters.

The conference costs $199 if you’re attending in person.  But, you don’t have to be in Florida to participate.  You can stream the entire conference for only $99.  And, if you’re a full-time law student (or a member of the UF faculty or professional staff), it’s free to attend in person or stream online!  Can’t beat that.

So, what do you think? Do you plan to attend the program? 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.

Laura Zubulake, Author of “Zubulake’s e-Discovery” – eDiscovery Trends

This is the fourth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

Today’s thought leader is Laura Zubulake.  Laura worked on Wall Street for 20 years in institutional equity departments and, in 1991, authored the book The Complete Guide to Convertible Securities Worldwide. She was the plaintiff in the Zubulake vs. UBS Warburg case, which resulted in several landmark opinions related to eDiscovery and counsel’s obligations for the preservation of electronically stored information. The December 2006 amendments to the Federal Rules of Civil Procedure were influenced, in part, by the Zubulake case. In 2012, Laura published a book titled Zubulake’s e-Discovery: The Untold Story of my Quest for Justice, previously discussed on this blog here and she speaks professionally about eDiscovery topics and her experiences related to the case.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

As far as what I saw last week, there was an increase in focus on Information Governance over last year’s conference. There was also a continued interest in eDiscovery.  What I found particularly interesting is that some of the larger vendors put less emphasis on Information Governance than they did last year and more on eDiscovery this year. When I went to the vendor booths and talked to them about actual business, I got the sense that several have taken a step back from Information Governance and refocused their efforts on eDiscovery. I’m not saying this is the case with all of them, but several of them.  I was not able to find out a reason why, but I surmised from my conversations that monetizing, or creating a business around Information Governance has been difficult for some vendors. It seems they find it easier to generate business with eDiscovery.  This intrigued me.

I’m looking at it more from a business standpoint than a legal or a conference agenda standpoint. In other words, how are they actually making money in this industry? It’s still predominantly in eDiscovery, not Information Governance. I think part of that has to do with the state of the economy, which is not great and it’s difficult trying to get clients to buy certain services at this time. Information Governance is probably a tougher sell than certain technologies you have on the eDiscovery side.  This creates a real business opportunity.  Over time I think the focus will shift towards Information Governance.  Corporations will realize that eDiscovery is a subsector of Information Governance and that Information Governance is a more efficient and effective investment.

Other things that I did see at the show: clearly there was an emphasis on big data, which was expected. When I looked at the tracks, the topics included Risk and Compliance, eDiscovery, Information Governance and technology in general. This seemed to be a continuation of those topics from last year’s show – again except for Information Governance, where I did see an increased focus.

I was surprised that I didn’t see more attention in areas like healthcare, which I would have expected — given what’s going on in the country and given the planned to shift from ICD-9 to ICD-10. Although now I guess there’s a little bit of a debate about that. But, I would have thought that there would have been more emphasis on healthcare.  

As for a prediction for next year and the coming years, I think that healthcare is going to become a major focus – for Information Governance in particular.   To continue on this, it would be interesting to see other detailed sector analysis.  That is, how Information Governance (particularly in light of industry regulations) could affect the finance, utilities, and energy sectors.

I also think you’re going to see – and people have different names for this – more emphasis on applying algorithms to Information Governance and not just for eDiscovery. People use the term “predictive coding” to refer to applying algorithms to eDiscovery efforts and with Information Governance, some people call it “auto-classification.”  Essentially, it’s taking a macro view and using algorithms to help companies organize and manage their data, from the top down. So, I think you’ll start seeing more discussion on not just predictive coding for EDD, but also algorithms for Information Governance efforts.

I would say the “Internet of things” (I guess everybody has their own way to describe that) is going to become more of a focus as well. For example, Google recently purchased Nest. If you think of the implications of that, Google is going to have access to data within your home. So, I think as the “Internet of things” expands, that’s going to become more of a focus for Information Governance, eDiscovery and Risk and Compliance type issues.

Cyber security will be another trend, obviously. Security and privacy issues with regard to healthcare and the security of data at every level, whether it’s your home or business, will become increasingly important.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I contributed comments to the website. In fact, I sent my book to Senator Coons, who is in charge of the committee and I have been in contact with other individuals involved in the discussion.  I think it’s important for the decision makers to appreciate what it’s like for an individual to go through litigation. While no one wants to be in that situation, it can happen to anyone.  I’m not so sure the amendments will be approved this year — maybe by the end of this year or next year.  My personal concern is that most of what I’ve read about the debate has been dominated by the defense side.  I’m not sure that the plaintiff side has been thoroughly represented. That was the concern that I voiced when I added my comments to the website.  While I understand the business and cost implications of eDiscovery, I believe the plaintiff ‘s side needs to be properly represented in the talks. With regard to the nature of the proposals, restricting the number of depositions, having certain restrictions on time, etc., I think it’s going to make it more difficult for an individual to stand up for their rights, to actually take a stand.  

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery? Do you agree with that and, if so, what do you think can be done to improve the situation?

Generally, I agree. Based on what I’ve read, there appears to be a significant segment of the legal community that is not well informed. What do I think can be done to improve the situation? Obviously, continue to educate.   Unfortunately, I think that there are many people that won’t take the time to learn new things until they’ve been thrown into a situation and forced to learn. That’s sad, because eDiscovery has been around for so long now. It should really be part of the conversation. Law schools need to include it in their curriculum somehow so that all law students become familiar with it at some level. Also, perhaps requiring continuing education for lawyers solely dedicated to eDiscovery where they sit in classes instead of just attending a conference. When you have to take an exam and answer questions, that’s when you’re forced to learn something.

Thanks, Laura, 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 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.

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

This is the third of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done 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 leads the technology team at Huron Legal, which includes the data collection, processing, hosting, production, and forensic analysis services along with infrastructure, support, and software development. James has extensive experience managing the strategic and tactical use of technology within investigative and litigation consulting matters.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

The Legal Tech conference was another good experience for us as a company.  It was an overall good conference for us with good traffic at our booth, great meetings throughout the week and good business opportunities coming from the show.  So, overall our impressions were positive and we felt good about the experience all around.  In fact, I would say that it was one of the best LegalTech experiences ever from our perspective.

As I look around the conference in terms of trends, the biggest trend that I noted was an increase in the discussion about Information Governance.  The whole concept of Information Management and Information Governance has become a popular topic.  There were lots of exhibitors using Information Governance or related language when talking about their products.  There were also several sessions and panel discussions about it, as well.  So, that stood out to me as the biggest trend I saw at the show over the previous year. I think that observation is reflective of an overall trend toward a greater focus on Information Governance and the impact it has on a number of things, including discovery costs and workflow.

The other trend that I see for 2014 is more stratification among the service providers.  Part of the reason for that is continued industry consolidation.  I think there is a growing differentiation between service providers, which we feel from our own experience, as well.  On one hand, a number of providers are continuing to mature and develop their full service offerings while on the other hand; there are new entrants into the market focusing on the application of technology as a differentiator from legacy service providers.

A related trend is greater acceptance of cloud-based solutions.  I think a number of providers are focusing on leveraging cloud-based infrastructures and technologies in their solutions.  I’m sensing an increased acceptance within the marketplace for cloud-based solutions.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I don’t have any particular source of information that would lead me to do anything more than speculate on the timing of their approval, but I do see them being accepted this year.  While the amendments have generated a fair amount of discussion, I think they represent a positive trend and will be approved and enacted.  I think the impact on the up front preparation and speed of litigation has been talked about extensively and will be a natural evolution for those who are already well prepared in that area. They will cause even more pain than the last amendments for those who are not as organized.  The impact on the early calendar of litigation may come as a shock to the litigants who aren’t as organized as they need to be.  I also think the introduction of proportionality via the amendments is a good thing and will bring some reasonableness to the burden of discovery that many of our clients face.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

That’s an interesting question because I wonder how much my experience personally and our experience as an organization is influenced by attorneys who are self-selecting.  In other words, do we see a representative sample of attorneys in the marketplace?  I would argue that we’ve seen an increase in the sophistication of our clients, both our clients at law firms and those at corporate legal departments.  To generalize them as a group, they are definitely more educated and more knowledgeable around eDiscovery issues than they were a few years ago.  But, I don’t know if that’s because of the nature of the types of clients we tend to attract are those that have recurring needs for discovery services and have been dealing with it for a number of years.

I do think that, as an industry, there are a lot of resources available to educate, so for those who do not avail themselves of those resources, it may be a reflection of their lack of a regular need for those services.  It’s easy to say that there could always be more education provided, but I think that you’re correct in the assessment that there are a number of good resources already.

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

We pride ourselves on being close to our clients and their needs and so we are continuing the development of our full-service offerings.  Our focus continues to be around holistic solutions to our clients’ problems, discovery being one of them, Information Governance certainly being another, compliance being a third, and so on.  So, in each of these areas, our focus is on how we can provide a complete solution to our clients.  By “complete”, I’m referring to everything from strategy and organizational assistance to help with the implementation of technologies or procedures and then on to the actual provision of services.  Huron is continuing within eDiscovery and beyond eDiscovery within the legal industry to focus on providing relevant, holistic solutions.

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 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.

Tom Gelbmann of Gelbmann & Associates, LLC – eDiscovery Trends

This is the second of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Tom Gelbmann. Tom is Principal of Gelbmann & Associates, LLC.  Since 1993, Gelbmann & Associates, LLC, is a consulting practice serving the legal services industry. Tom has an extensive record of working with law firms, corporate counsel and legal services providers as a consultant, advisor, project manager, and has also held the CIO position at two major law firms.  Tom has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; in 2011 he and George Socha converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and George Socha launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

While I didn’t attend the show this year (for the first time in many years), I have been monitoring communications about the show and what took place and have talked with a number of attendees, so I do have some perspectives about it.  Not surprisingly, a major theme this year was the surge in attention to Information Governance.  Information Governance is becoming the area that is grabbing attention within organizations, and rightly so.  We’ve been saying for quite some time in “EDRM-land” that if you can get your electronic house in order, eDiscovery challenges are mitigated and costs can be considerably reduced.

One of the results that you’re starting to see is the appearance of tools to help with that whole Information Governance process of: What do you have?  Who has it?  Where is it?  How do you curate it?  How do you identify what you no longer need to hold onto and effectively get rid of it?  And, when litigation does occur, how do you effectively hone in on the ESI that you need for that particular matter?

Another trend that I’m seeing in general is really two somewhat related trends: Metrics and Project Management.  Metrics has been something that has been slow to catch on for a long time, but I think organizations are now catching on to the fact that if you don’t measure it, you can’t manage it.  The light is coming on for people who are realizing that “yeah, I’d better start tracking these things”.  Metrics have really started to become more mainstream within the industry.  Associated with that is Project Management.  In eDiscovery, you have to have a well-defined, repeatable process to manage the projects effectively.  The more disciplined you are, the better your outcomes will be.  So, metrics and project management are really “coming of age”.

We’re also seeing more and more activity with mobile devices.  You’ve got smart phones, iPads and other tablets, BYOD, etc.  And, that’s really where more and more ESI will be.  I think mobile platforms are starting to take over as far as the means of communication and, in many cases, that’s where the story is.  And, what eDiscovery is all about is finding out the story.  Not that email is going to dry up any time soon, but you’re starting to see that the growth is in mobile and social media.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

I agree.  From what I’m seeing, it may have gotten a little bit better, but not a whole lot.  For change to come, the impetus has to come from clients.  Clients need to be more demanding and validate their outside counsel attorney’s claims of “I know all about eDiscovery” when maybe all they did was attend a CLE.  There has to be proof of their knowledge, but I’m not sure how clients will go about obtaining that proof.  But, they’re the ones paying the bill, so the impetus will have to come from them.  I don’t think it will come from a bar association.

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

I’m very enthused about EDRM this year from a couple of aspects.  One, we’re very excited that we’re moving towards a non-profit model for EDRM.  There’s been a lot of work so far and there’s still a lot of work to do, but I think we’re on track to complete that this year.  I think that’s really going to serve EDRM well for the longer term.  What I mean by that is that it’s been the “George and Tom show” and we realize that it can’t be if it’s going to continue and flourish for the long term.  There’s a lot of energy and a lot of good minds behind this initiative and I’m looking forward to that.

As far as projects are concerned, the Data Set group has been busy further developing the Privacy & Security Risk Reduction Model.  There are some new frameworks coming out and a few other things that we will hopefully be able to announce fairly soon.  The projects are continuing to create and update helpful tools and frameworks which, to some extent, address the education question you asked me earlier.  Information Governance is one of those project teams that is working on some interesting items.  Also, we started in October with a monthly update, so we’re doing a better job of letting people know about all of the accomplishments of EDRM.  In retrospect, we should have been doing that a lot earlier.  You don’t realize on a day-to-day basis what we’re accomplishing, but when we put together a monthly update, we realize that we did accomplish a lot.  Our 2013 end of year update shows that there were several things we accomplished in 2013 that were valuable to the industry.  So, the future is bright for EDRM from a variety of perspectives.

With regard to Apersee, we’re still working to prove to providers that there is value in maintaining their profiles about their products and services.  We understand that it takes effort to do so and we’re still trying to demonstrate the value to them.  The more providers put into it, the more valuable it becomes to consumers.  The Apersee Special Requests are a bright spot. When we distribute Apersee special requests from the consumer, looking for a specific complex, time-sensitive service, we get dozens of responses from providers within minutes to a couple of hours.  Generally, the consumer tells us within a day or less “Stop, we’ve got enough responses, this is great.”  So, the effectiveness of the Apersee special request tells us that there is a need to be fulfilled.  We’ve been told by consumers that it’s very valuable service, so we’re excited about that.

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 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.

Houston, Hello! The Sedona Conference is Coming! – eDiscovery Trends
 

If you’re in my hometown of Houston and want to learn more about eDiscovery from a well-respected panel of judges and eDiscovery experts, you have an excellent opportunity next month to do so at The 8th Annual Sedona Conference® Institute Program on eDiscovery in a New Era: New Technologies, New Media, New Rules.

It’s a two-day program on March 13 and 14 at the Hilton Americas Hotel in downtown Houston.  As the Sedona Conference site states:

“The undisputed, non-partisan thought leaders in eDiscovery will gather in Houston to explore emerging challenges and trends that stem from evolving technology. Co-chairs Monica Latin of Carrington, Coleman, Sloman & Blumenthal, L.L.P. and Eric Schwarz of Ernst & Young have gathered an extraordinary faculty of judges, top eDiscovery practitioners, in-house counsel, and experts to lead the dialogue on the following topics:

  • Case law update
  • Pending amendments to the Federal Rules of Civil Procedure
  • Data breach incident investigation and response
  • eDiscovery in a crisis, while under scrutiny, in a regulated industry
  • TAR and predictive coding
  • Professional responsibility with social media, mobile devices and the cloud
  • Corporate counsel perspectives on new media in terms of preservation, collection, and review
  • Judicial Roundtable
  • eDiscovery outside the courtroom”

Judicial experts on the panel include Texas Supreme Court Chief Justice Nathan Hecht, Texas District Judges Lee Rosenthal and Xavier Rodriguez and New York Magistrate Judge Andrew Peck.  There will also be eDiscovery experts on the panel, including Jason R. Baron and Maura Grossman, and corporate experts from Raytheon Company, GlaxoSmithKline, Intel Corporation and BP America, among others.

Sessions include: Case Law and Rules Amendments updates, eDiscovery Under Pressure, Technology Assisted Review (with Jason R. Baron, Maura Grossman and Judge Peck on the panel, that should be a can’t miss!), Professional Responsibility in Social Media and the Cloud, Making the Business Case for eDiscovery, a Corporate Counsel Roundtable and Responding to Data Breach Incidents.  There is also reception after the sessions on the first day.  Sessions end at 1:00 pm on Day 2 to give time for travelers to return home.

The session is still available, but limited to 200 participants.  It’s not free, costing $1,295 for regular attendees – government employees get a discount down to $845 and Working Group Series (WGS) members down to $1,195.  On the site, The Sedona Conference notes that “We are applying for advance accreditation for 660 minutes of MCLE credit, including 60 minutes of ethics credit in states requested by those who register.  For the benefit of ARMA members, we will also apply for ICRM Certification Maintenance Program (CMP) advance accreditation.”  If you have any questions about the status of those CLE and certification accreditations, contact The Sedona Conference.

For more information about the program, including a full agenda and list of speakers, click here.

So, what do you think? Do you plan to attend the program? 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.

Brad Jenkins of CloudNine Discovery – eDiscovery Trends

This is the first of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done 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 Discovery.  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 also writes the Litigation Support Industry Blog, which covers news about litigation support and eDiscovery companies’ funding activities, acquisitions & mergers and notable business successes. He 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 significant eDiscovery trends do you see for 2014?

Well, I think that technology assisted review tools will continue to gain traction and the software will continue to make the review process more intuitive.  I think predictive coding software is evolving to provide real-time predicted relevance scores for the collection as each document is reviewed.  One of our partners, Hot Neuron, announced last month that Version 4.0 of their Clustify software, is the first technology-assisted review tool to offer real-time predictive coding.  I also think that the technology associated with predictive coding will be used more in other areas of the eDiscovery life cycle, particularly Information Governance.

Another trend, one that I discussed last year, is integration of “best of breed” cloud-based applications to make the discovery process more seamless. Our alliance with BIA and the integration of their TotalDiscovery legal hold and collection tool to our review application, OnDemand®, has continued to be used by our clients to support preservation through production.  BIA has tremendous expertise and software to support the left side of the EDRM model and it’s a logical fit for the services and software we provide from collection to production.  Personally, I believe that the “best of breed” integrated applications approach is a preferable alternative to a complete solution because it’s difficult to be an expert in all phases of discovery.

I also think that it’s more difficult than ever for the small to medium sized firm to compete with the big firm that has most of the attention from the eDiscovery vendor market and has more resources in house to manage their discovery workload.  Most small to mid-sized firms lack the core competency, the infrastructure, the project management expertise and the overall personnel in house to provide the full range of services that large corporate clients are demanding, especially for litigation support and discovery services.  More than ever, these firms will need to leverage virtual resources to compete and provide the level of services their clients expect.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I don’t really have a prediction as to whether they will be approved this year.  I know there has been controversy with some of the proposed rules changes, especially Rule 37(e), regarding the level of culpability required to justify severe sanctions for spoliation and that Judge Scheindlin and others have criticized the rule.  I wouldn’t be surprised to see some changes to that rule before adoption.  Regardless, it seems like a lot of attorneys don’t follow the rules adopted back in 2006, so the rules will only be effective if attorneys adhere to those rules and courts hold them to those standards.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

Yes, I agree.  We work with a lot of firms whose attorneys lack basic eDiscovery fundamentals.  In some cases, the managing partners know that and have been asking for us to provide seminars and webinars to educate them on eDiscovery best practices.  And, we have been providing more consulting than ever to attorneys to assist them with technical language in requests for production to ensure that they receive the most useful form of production such as native files with included metadata.

As for what can be done, I think it’s imperative for each provider to provide resources to educate their clients and the legal profession as a whole.  We do that with our blog, eDiscoveryDaily.  As we approach 300,000 lifetime hits and 1,000 lifetime posts, both of which we will reach later this year, I’m proud of the knowledge base that this blog has become.  This year, we are also looking to really ramp up CLE training for attorneys that want to become more comfortable with technology.  There are numerous other great blogs and resources out there too.  I think we have to keep pushing and keep finding ways to reach attorneys and give them useful resources that can simplify the discovery process, which is what we’re all about at CloudNine.

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

In addition to our continued integration success with BIA and our partnership with Clustify, we recently released a brand new version of our review application OnDemand® , called Universal OnDemand.  We called it “Universal” because we have re-designed it to work in any browser, so clients can use it whether they prefer Internet Explorer, Firefox, Google Chrome or even Safari on a Mac.  We will be working to expand the application to support use with tablets this year and, as always, working to add features requested by our clients, who are the primary drivers of our development priorities.

We have also been working on a new advanced program that we call the Virtual BIG Firm™ program.  It’s a unique package of the full range of services that we have provided for years, along with our OnDemand review platform, for mid-sized firms that want to compete with the big firms, but don’t have the personnel, infrastructure or expertise to make it happen.  We created our Virtual BIG Firm program based on our experience working with over one hundred law firms for more than eleven years.  Our Virtual BIG Firm program appeals to firms interested in growing their practice.  These firms value continuing legal education, technology advances and they feel comfortable delegating.  It’s not for everybody, so we continue to offer our basic services and software as we always have, but for the firm that has a significant litigation workload but not the resources to fully manage it effectively, it’s a program that provides those resources at a fraction of what big firms spend on personnel & technology.

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 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.

Dispute over Production Format and Search Terms for Electronic Discovery Highlights the Need for Cooperation – eDiscovery Case Law
 

In Saliga v. Chemtura Corp., No. 3:12cv832 (RNC), 2013 U.S. Dist. (D. Conn. Nov. 25, 2013), a discrimination case heard by Connecticut Magistrate Judge Donna F. Martinez, the plaintiff and the defendants had spent a year arguing over the format of production for Electronically Stored Information (ESI) to be used in discovery, as well as relevant search terms, before the plaintiff filed a motion to compel.

Prior to this motion, Judge Martinez had held a status conference and chastised both parties concerning the issue of cooperation, noting that discussions about ESI should begin early in the case under Rule 26(f), which requires that both parties confer in order to develop a discovery plan that addressed “any issues about disclosure or discovery of [ESI], including the form or forms in which it should be produced.” However, it was determined that given the current state of impasse, another meeting between parties would not reach a resolution, necessitating court intervention.

The format for production was the first matter addressed. Originally, the plaintiff had asked that the defendant produce emails for discovery in native format, which would contain application metadata and could also contain system metadata relevant to the litigation, such as file creation dates or the identity of the computer on which the email was created. The defendants’ objection stated that “standard practice is to produce ESI in searchable PDF or TIFF and there is ‘no basis or need’ to produce the emails in native format.”

However, the defendants did not claim any undue burden or expense with regards to the requested production format, nor did they offer a reason why they were unable to comply. Therefore according to Rule 34(b)(1)(c), which states that the requesting party, in this case the plaintiff, may “specify the form or forms in which electronically stored information is to be produced,” Judge Martinez ordered the defendant to produce the requested emails in native format.

The next issue addressed was a complaint by the defendant that two of the requests for production from the plaintiff were overly broad, and therefore unduly burdensome. The plaintiff listed 14 employees to search, and the defendant stated that search results for the employees’ emails yielded more than 925,000 hits. In addition, the complaint claimed this request was a duplicate of the plaintiff’s requested search terms, which caused similar problems.

Prior to the complaint, the parties had failed to agree on the search terms to be used, or how the search should proceed. The unresolved dispute necessitated Judge Martinez’s intervention, despite the fact that the court was “loath to decide the search terms to be used because the parties are far better positioned to do so.” In the discovery request, the plaintiff asked for the defendants to use 12 relevant words and phrases, variously combined with versions of the custodians’ names to create 37 search terms in total. The defendants objected to one of the 12 base search terms, “India Audit,” and claimed that inclusion of the custodians’ names would be “cumulative and unnecessary.”

Judge Martinez agreed that it would be “superfluous” to incorporate the names of the custodians into the search terms, but denied the defendants’ request to discard the contested search term “India Audit” and ordered that it be included.

Finally, the plaintiff’s request for information on the defendants’ data collection process was considered, in light of a letter the plaintiff had submitted to the defendants three months prior that contained “three pages of technical questions about the defendant’s system configuration, acquisition methods and data extraction” and told the defendant “not to produce any ESI discovery until the plaintiff was satisfied that her concerns and questions were resolved.” Judge Martinez rejected this request, stating that “the plaintiff’s questions may not impede the defendant’s production, which must take place immediately.” The plaintiff was advised to address the opposing counsel should she have any legitimate concerns about the procedures for data collection.

So, what do you think? Should the court step in to define search terms when both parties fail to agree on them? Should the plaintiff’s right to specify a production form for ESI supersede standard practices? Please share any comments you might have or if you’d like to know more about a particular topic.

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