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Electronic Discovery

It’s Time for the EDRM 2019 Workshop and Forum at Duke Law School: eDiscovery Best Practices

Two days, two posts about eDiscovery education and best practices at law schools!  Yes, it’s time for the annual Duke/EDRM Workshop in Durham, NC, later this month.  And, you don’t have to be a member of Duke/EDRM to attend!

The annual Duke/EDRM workshop/forum will be held this year on May 15-17.  It brings together highly motivated judges, practitioners, consultants, service providers, and software vendors to work collaboratively on exciting and challenging eDiscovery and other IT projects that impact the industry and the profession.   The group critically examines and discusses pending projects, providing their collective wisdom and guidance on the projects’ challenges, problems, and issues, and proposes new projects.

Over the past year, Duke/EDRM was busy.  TAR Guidelines were approved, a draft of a TAR protocol is reportedly progressing nicely, and more than 250 federal judges responded to a discovery survey administered by EDRM/Exterro.  At the workshop/forum, the leaders of teams handling eight pending projects will seek input and guidance from the group on the biggest challenge, issue, or problem they are encountering.  The projects range from AI, to a compliance code of conduct governing GDPR, to a proportionality template and much more.

Also, Duke/EDRM notes some new activities to the workshop/forum that include 1) A panel of in-house counsel from major corporations (Exxon/Mobil, American Airlines, and GSK) discussing their biggest eDiscovery challenges and how best to work with outside eDiscovery consultants, service providers, and software vendors; 2) A panel of four judges addressing what eDiscovery information is most useful to them and what information they consider to be the least useful; and 3) A review of Herb Roitblat’s FOMO paper, which corroborates the anecdotal experience of TAR users using mathematical and probability equations that null sets rarely include significant new documents.

Speaking of “FOMO”, do you have fear of missing out this year?  If so, you can still register.  The registration fee is $650.  If you’re a current Duke/EDRM member, you can request a promo code for $150 off registration by emailing lora.farmer@law.duke.edu.  If you’re not a member, you can add an annual Duke/EDRM membership for just $50 more when registering for the workshop/forum, for a total payment of $700.

Here’s a link to the workshop main page, the agenda, a list of panelists, a list of materials that will be included, hotel accommodations (the Washington Duke Inn is very nice) and the registration page.

So, what do you think?  Are you going to this year’s Duke/EDRM workshop/forum?  And, have you ever seen more slashes (“/”) in a single blog post?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Ready for In-Depth eDiscovery Training? Head to Georgetown: eDiscovery Best Practices

There are training courses and there are training courses, but there is no more in-depth eDiscovery training course than the Georgetown Law Center eDiscovery Training Academy.  Once again, it is coming up in just over a month.  And, if you hurry, you can save on registration!

The Academy’s full-week curriculum is intended to give you a “total immersion” in the subject of eDiscovery, featuring a highly personalized and interactive instructional approach designed to foster an intense connection between all students and a renowned faculty.  And, it has been designed by experts to be a challenging experience leading to a comprehensive understanding of the discipline. As the Academy summary notes, it is demanding, but it will be one of your most exciting and successful learning experiences if you are determined to invest the time and effort.

Renowned faculty?  Check.  How about people like Craig Ball, Maura Grossman, Mark Sidoti, Tom O’Connor, Hon. John M. Facciola (Ret.) and Virginia Magistrate Judge Hon. John Anderson?

Total immersion?  Check.  How about topics ranging from Introduction to Electronically Stored Information to Proportionality to Ugly Truths about Electronic Search to Meet and Confer Strategies?  There’s also Authentication and Admissibility, Forms of Production, Preservation and Sanctions and Technology-Assisted Review (“TAR”) for eDiscovery.  Even Mobile Data Preservation, Rule 502 and Ethics.  With plenty of exercises to test your knowledge and Mock 26(f) Conferences on the last day.  And, there is CLE credit to boot!

Here’s a link to the complete agenda for the Academy.

The Academy runs from Sunday, June 2, 2019 to Friday, June 7, 2019 at the Georgetown University Law Center, 600 New Jersey Ave NW, Washington, DC 20001.  With regard to the cost for participating, the Regular Registration price is $3,650 for the entire week; however, if you register by tomorrow, it is discounted to $3,450.  If you’re Georgetown Law Alumni ($3,150) or a Government employee ($2,650), it’s even cheaper – for a full week of instruction.  Scholarships can also be requested by Monday, May 13.  If you want to achieve “total immersion” in all educational topics eDiscovery – this is the place to do it!

So, what do you think?  Have you attended the Georgetown Law Center eDiscovery Training Academy in the past?  If so, what did you think of it?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Court Grants Motion to Compel Production of Telephone Records from Individual Plaintiff: eDiscovery Case Law

In Siemers v. BNSF Railway Co., No. 8:17-cv-360 (D. Neb. Apr. 8, 2019), Nebraska Magistrate Judge Susan M. Bazis finding that the plaintiff’s telephone records are discoverable pursuant to Fed. R. Civ. P. 26, that they are not subject to a privilege claim just because plaintiff’s counsel’s telephone number may appear in the records and that privacy issues are minimal to non-existent (since the at-issue records do not contain the substance of communications), ordered the plaintiff to produce his telephone records within one week of the order.

Case Background

In this case regarding the plaintiff’s suit against his former employer for alleged violations of the Federal Employers Liability Act (“FELA”), the defendant requested production of the plaintiff’s cellular telephone records from November 1, 2016 (the day before the claimed injury incident that is the basis of Plaintiff’s lawsuit) to present. After the plaintiff refused to produce any records in response to the defendant’s request, a discovery dispute conference was held in October 2018, with the Court finding that the plaintiff’s communications with coworkers or others from the defendant and telephone records evidencing the same were relevant and discoverable, and ordered the parties to further confer regarding production of these items.

The plaintiff then issued a subpoena to his cellular telephone provider and received a listing of incoming and outgoing telephone calls and text messages, but not the substance of any communications. Nonetheless, the plaintiff refused to produce to the defendant the telephone records produced to him in response to his subpoena.

In the final pretrial conference, the defendant argued that the records were discoverable because whether and how often plaintiff has communicated with BNSF coworkers or management since his alleged injury could have credibility considerations, that identifying the fact that a communication occurred between the plaintiff and his attorney was not privileged or, alternatively, that it was not unduly burdensome to redact those references and that no privacy interest was implicated in the telephone records because the records do not contain the substance of any communications.  The plaintiff argued that the defendant’s request was “overbroad on its face and therefore not reasonably calculated to lead to the discovery of relevant information” and also contended that the discovery sought by the defendant was “unreasonably cumulative or duplicative and could have been obtained from other sources that is more convenient, less burdensome, or less expensive.”

Judge’s Ruling

Considering the respective arguments, Judge Bazis ruled as follows:

  1. “Plaintiff’s telephone records from November 1, 2016 to present and any other records received by Plaintiff in response to his subpoena to his cellular telephone provider are discoverable pursuant to Fed. R. Civ. P. 26. BNSF is entitled to discover whether and how often Plaintiff has communicated with coworkers or BNSF management since his alleged injury.
  2. The fact that Plaintiff’s counsel’s telephone number may appear in the records does not render them subject to a privilege claim. Plaintiff may redact references to communications between Plaintiff and Plaintiff’s counsel, which the Court finds is not overly burdensome.
  3. Privacy considerations of Plaintiff or third parties not involved in this litigation are minimal to non-existent since the at-issue records do not contain the substance of communications.”

As a result, Judge Bazis ordered (in all caps, no less) the plaintiff “to produce to BNSF all records received in response to Plaintiff’s subpoena to his cellular telephone carrier” within one week of the order, noting that he could “redact references to communications between Plaintiff’s counsel and Plaintiff (but is not required to do so to maintain privilege claims regarding the substance of the communications).”

So, what do you think?  Was that appropriate or was the defendant’s request overbroad?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Another Sedona Conference Commentary Published: eDiscovery Best Practices

Last week, I discussed two public comment publications from The Sedona Conference® (TSC) from last year that were published in final form over the past few weeks.  Now, TSC has announced a new publication from and its Working Group 11 on Data Security and Privacy Liability (WG11) that evaluates the application of the attorney-client privilege and work-product protection doctrine to an organization’s cybersecurity information.

Last week, TSC and its WG11 group announced the public comment version of its Commentary on Application of Attorney-Client Privilege and Work-Product Protection to Documents and Communications Generated in the Cybersecurity Context (Commentary), which may be the longest title for a TSC publication ever.

The goal of the Commentary is to address the absence of “settled law” on this topic by assessing (1) how the courts have and can be expected to decide, and what organizational practices will be important to a court’s decision regarding, whether the attorney-client privilege or work-product protection apply to documents and communications generated in the cybersecurity context; and (2) how the development of the law in this area should be informed not just by established attorney-client privilege and work-product protection legal principles, but also by the policy rationales underlying the attorney-client privilege and work-product protection generally and those unique to the cybersecurity context.

There are essentially five parts in the 65-page (PDF) Commentary.  Part A of the elaborates on the Commentary’s purpose and sets forth its target audience. Part B sets forth the legal principles generally applicable to claims of attorney-client privilege and work-product protection. Part C uses the general principles set forth in Part B and other relevant legal sources to evaluate how the courts have and can be expected to decide, and what organizational practices will be important to a court’s decision regarding whether the attorney-client privilege or work-product protection applies to various types of documents and communications that an organization generates in the cybersecurity context. Part D examines whether and to what extent the results suggested in Part C are consistent with the policy rationales underlying the attorney-client privilege and work-product protection generally and those unique to the cybersecurity context. Section 2 of Part D considers various proposals for adapting existing attorney-client privilege and work-product protection law, or developing entirely new protections, in the Cybersecurity Information (CI) context, and the tradeoffs those proposals present.   Part E is a one-paragraph conclusion to the Commentary.  There are no Appendices.

You can download a copy of the Commentary here (login required, which is free).  The Commentary is open for public comment through June 25, 2019. Questions and comments on the Commentary are welcome through June 25, and may be sent to comments@sedonaconference.org.  The drafting team will carefully consider all comments received, and determine what edits are appropriate for the final version.  Also, a webinar on the Commentary will be scheduled in the coming weeks, and will be announced by email and on The Sedona Conference website to give you the opportunity to ask questions and gain additional insight on this important topic.

So, what do you think?  How does your organization address attorney-client privilege and work-product protection of its cybersecurity information?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

What Does a Record Number of Responses Show Regarding eDiscovery Business Confidence?: eDiscovery Trends

As promised yesterday, I’m here to cover the results of the Spring 2019 eDiscovery Business Confidence Survey, published (as always) on Rob Robinson’s terrific Complex Discovery site.  So, how confident are individuals working in the eDiscovery ecosystem in the business of eDiscovery?  Let’s see.

As always, Rob provides a complete breakdown of the latest survey results, which you can check out here.  As I’ve done for the past few surveys, I will provide some analysis and I’m continuing to take a look at all surveys conducted to look at trends over time.  So, this time, I will look at the results for all fourteen surveys to date, from January 2016 to present.

The Spring 2019 Survey response period was initiated on April 1 (no fooling!) and continued until registration of 180(!) responses last week, a record number of participants, thanks in part to support and promotion from the Association of Certified E-Discovery Specialists (ACEDS).

Law Firms Lead the Way: It’s rare when Software and/or Services Provider respondents aren’t the top group, but this is one of those times – barely.  Law Firm respondents led the way at 30% of all respondents, with Software and/or Services Provider respondents less than a tick behind at 29.4%.  Corporation respondents were third at 16.7%, a record percentage of corporate respondents and Consultancy was fourth at 12.8%.  If you count law firms as providers (they’re technically both providers and consumers), this is still a provider heavy survey with 72.2% of total respondents (but it’s the lowest since Fall 2016, which I believe was the previous highest participant count ever).  So, expanding the respondents seems to diversify the responses a bit!  Here’s a graphical representation of the trend over the fourteen surveys to date:

So, how confident is the largest group of respondents ever in eDiscovery business confidence?  See below.

Most Respondents Consider Business to Be Same Old, Same Old: For the first time ever, more than half (52.2%) of respondents considered business to be normal, considerably more than the 36% we had last quarter.  And, only 41.1% of respondents consider business to be good – the lowest number ever.  6.7% of respondents rated business conditions as bad, which is a four percent drop from last quarter.  So, does a larger group of respondents means we get more info from the companies that are not thriving as much?  Hmmm…  Here is the trend over the fourteen surveys to date:

So, how good do respondents expect business to be in six months?  See below.

Middling Numbers for Six Months From Now, As Well: While most respondents (97.8%) expect business conditions will be in their segment to be the same or better six months from now, the percentage expecting business to be better dropped 12 percent to 40%, while the percentage expecting business to be the same rose to 57.8%.   Revenue numbers were comparable to last quarter, slightly more respondents predicting higher revenue (41.7%, up .4 percent) and same (52.2%, up 1.5 percent).  Profit expectations (combined 90%) dropped 3.3 points from last quarter, but those expecting higher profits did rebound a bit to 34.4% – 6.4 percent more than last quarter’s all-time low, but still the second lowest all-time. Here is the profits trend over the fourteen surveys to date:

Will the lower future profits predictions continue?  We’ll see.

Volume, Volume, Volume!  Increasing Volumes of Data Considered to Be Most Impactful to eDiscovery Business: After two quarters as the runner up, Increasing Volumes of Data returned as the top impactful issue at 25%. Budgetary Constraints moved down a notch back to second at 20.6%, so, as has been the case most quarters, those two factors have been the top two.  Increasing Types of Data was once again third at 18.9%, followed by Data Security at 15%.  Lack of Personnel was fifth at 12.2%, with Inadequate Technology bringing up the rear at 8.3%.  The graph below illustrates the distribution over the fourteen surveys to date:

Increased volumes lead to increased costs, so it’s not surprising that Increasing Volumes of Data and Budgetary Constraints are normally one and two.

Let’s Get Tactical!: For the first time ever, Tactical Execution respondents were the clear top group at 39.4%, a record percentage by nearly 5 percent (previous high was 34.5 percent in Fall 2016).  So, again, greater turnout means a greater response from the people doing most of the front-line work.   Operational Management respondents were second at 36.1% and Executive Leadership respondents were at 24.4%, the lowest ever (previous low was 26.5 percent in, of course, Fall 2016).  Here’s the breakdown over the fourteen surveys to date:

With more respondents than ever, it’s clear that it’s not the same people giving the same answers each time.  Personally, I like the expanded respondents, more diverse survey results!  Let’s keep going Kramer!

Again, Rob has published the results on his site here, which shows responses to additional questions not referenced here including an early look at responses to three recently added questions.  Check them out.

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Craig Ball’s Wayback Machine and Look at the Mueller Report: eDiscovery Best Practices

Some weeks there is so much to cover in eDiscovery that it’s difficult to get to everything.  This is one of those weeks.  Like me, several of you are fans of Rob Robinson’s quarterly eDiscovery Business Confidence Survey on his Complex Discovery blog and he has just published the results of his Spring 2019 Survey, which are very interesting and I will (hopefully) post my normal analysis on that tomorrow.  But, Craig Ball has posted – not just one, but two – interesting posts on his Ball in Your Court blog this week that definitely need to be covered as well.  “Ball” comes before “Robinson” alphabetically, so I’ll cover his posts first.  ;o)

In Craig’s post Storage Media: Long Past Herman Hollerith, he gives a terrific history lesson on storage media – all the way back to the old punch card storage and tabulation technologies Herman Hollerith used to revolutionize the 1890 U.S. census.  That same punch card technology was adopted by used for close to, if not more than, 100 years.  My first computer programming course (does anybody remember Fortran?) at Baylor in the early 1980s was on an IBM System 3 (link to a picture of that system here) with the old punch card technology that we used to “write” our programs on.  Each card was a single line of code and you had to keep the cards in order for the program to run correctly – you’ll never see a more devastated look on a person than when they drop their punch card deck of several hundred cards and realize there is no way to put them back in order (thankfully, that wasn’t me).

Craig jumped from punch cards to 3.5-inch floppy disks commonly used from the mid-1980s to early 2000s which held 1.44MB (about 13,653 IBM cards worth of data).  In comparison to today’s world, as Tom O’Connor and I discussed in yesterday’s webcast, by next year, about 1.7MB of new information will be created every second for every human being on the planet.

In between were 8-inch and 5 1/4-inch floppy disks (which were truly “floppy”) that held a lot less storage (I know because I used both).  As Craig notes, you can now get a 1-terabyte drive for about $50, which is the equivalent of about ten billion IBM cards.  And, a 30-TB LTO-8 backup tape cartridge is approximately the equivalent of 305 billion IBM cards.  Yikes!

Oh, and by the way, the Georgetown Law Center eDiscovery Training Academy is coming up in less than a month!  More to come on that in an upcoming post.

In Craig’s post, Mueller? Mueller? More E-Discovery Lessons from Bill and Bob (get the 80’s movie reference, there?), he uses the Robert Mueller report just released to compare the common practice of “fixing” the content of a document by printing the file to a static image format like TIFF or PDF to “the way we speak of ‘fixing’ a cat; that is, cutting its balls off.”  Ouch!  And, Craig notes that he’s written about this extensively elsewhere (including his excellent Lawyers’ Guide to Forms of Production).  But, the best part of his post (other than the humor, of course – I won’t steal his thunder here), is his discussion of native redaction and the move a dozen years ago by Microsoft to Open XML (Extensible Markup Language) for Office files (which is why Office file extensions have an “X” at the end – e.g., DOCX, XLSX, etc.).  And, you get to find out where the “PK” in PKZIP came from!  Excellent stuff!

So, why don’t we redact natively instead of sticking to “dumbing down” file formats to TIFF, then OCRing them, then redacting them?  As Craig asks, “Mueller, Mueller?”

By the way, speaking of the Mueller report, our friends at Complete Legal have made it available in a CloudNine Review database.  Can’t believe I haven’t mentioned THAT before now!  You can email them at info@completelegalkc.com to request access to the report and really search and examine it in detail.  Even if the report does represent a cat with no balls.  ;o)

So, what do you think?  Have you ever redacted documents natively?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Two Weeks, Two Sedona Conference Guides Published: eDiscovery Best Practices

Last year, The Sedona Conference® (TSC) published a bunch of…er…publications.  That included the Public Comment Version of their Primer on Social Media, Second Edition, the Public Comment version of its Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations and the final version of its new Data Privacy Primer.  Now, TSC has published the final versions of two other guides for which it published the public comment version last year.

On April 11, TSC and its Working Group 1 on Electronic Document Retention & Production (WG1) announced the publication of its Commentary on Information Governance, Second Edition. The public comment version of this Second Edition was published in October of last year (we covered it here).

In 2014, TSC published its first edition of the Commentary on Information Governance which recommended a top-down, overarching framework guided by the requirements and goals of all stakeholders that enables an organization to make decisions about information for the good of the overall organization and consistent with senior management’s strategic directions. The Second Edition accounts for the many changes and advances in technology and law over the past four years; underscores the role of IG as part of and complimentary to the business, rather than something separate that adds overhead; and emphasizes the costs of eDiscovery which should drive organizations to focus on IG on the front end, resulting in eDiscovery that is more efficient, less painful, and which allows the organization to reap additional benefits from a business perspective.

Then, on April 18 (last Thursday), TSC and its WG1 announced the publication of the Commentary on Defensible Disposition. While updating the 2014 Commentary on Information Governance, WG1 recognized there was a need to provide guidance to organizations and counsel on the adequate and proper disposition of information that is no longer subject to a legal hold and has exceeded the applicable legal, regulatory, and business retention requirements.  The public comment version of this Commentary was published in August of last year (we covered that one here), so it took a bit longer to “dispose” of that one (but, I suppose, that’s “defensible”).

Also last Thursday, TSC announced a special Working Group 6 on International Electronic Information Management, Discovery and Disclosure (WG6) membership-building event at the Brussels offices of Crowell & Moring LLP, on Wednesday, May 15th, from 5:30 – 8:30 pm.  You know what that means – free sprouts!  ;o)  Seriously, though, the event is a WG6 membership-building event, so they will also discuss the mission of WG6; activities of WG6, including drafting efforts and upcoming events; and the benefits of joining WG6.

I hear that Brussels is nice this time of year.  Wish I could speak from personal experience!  ;o)

Finally, a reminder that at noon CST today (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Discovery Isn’t Just for Litigation Anymore. In this one-hour webcast that’s CLE-approved in selected states, Tom O’Connor and I will discuss the drivers and challenges facing organizations today to be more proactive in understanding their data to identify issues before they lead to litigation and address them proactively.  To register for it (yes, there’s still time!), click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  We will discuss some topics related to InfoGov and Defensible Disposition, so it’s timely!

So, what do you think?  Are you up to date on the latest IG trends?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Tomorrow is the Day to Learn Why Discovery Isn’t Just for Litigation Anymore: eDiscovery Webcasts

Where is my brain?!?  I’ve forgotten to mention this before now!  In today’s era of growing data privacy concerns with GDPR and CCPA, increase in harassment claims with #MeToo and rising corporate malfeasance concerns, there are a lot of potential compliance and investigations needs with regard to discovery that organizations have today whether or not they ever lead to litigation.  Want to find out how to address these various challenges?  Tune in tomorrow!

Tomorrow at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Discovery Isn’t Just for Litigation Anymore. In this one-hour webcast that’s CLE-approved in selected states, we will discuss the drivers and challenges facing organizations today to be more proactive in understanding their data to identify issues before they lead to litigation and address them proactively. Topics include:

  • Timeframes to Act After the Case is Filed
  • Challenges Posed by BIG Data and Variety of Data Sources
  • Data Privacy Trends and Challenges
  • Challenges from #metoo and Corporate Malfeasance
  • Key Stats and Challenges Regarding Data Breaches
  • Will Information Governance Bail Us Out of This Mess?
  • Data Discovery vs. Legal Discovery
  • Where the Technology is Heading
  • Recommendations for Addressing Data Discovery Challenges

As always, I’ll be presenting the webcast, along with Tom O’Connor, who always has interesting takes on pretty much any topic eDiscovery related.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  Believe it or not, you may not even have any meaningful litigation to manage, yet you still probably have eDiscovery challenges to address in today’s world.  Find out how tomorrow!

So, what do you think?  Are you prepared for today’s eDiscovery challenges?  If not, please join us!  If so, please join us anyway!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Why Does Production Have to be Such a Big Production?, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Understanding Blockchain and its Impact on Legal Technology, which we covered as part of a webcast on March 27.  Now, Tom has written another terrific overview regarding production challenges and what to do about them titled Why Does Production Have to be Such a Big Production? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was last Monday, part two was last Wednesday and part three was last Friday, here’s the fourth and final part.

Recommendations for Minimizing Production Mistakes

Shawn Huston says,

The most beneficial step that any attorney can take is to talk through the production protocol and specifications prior to even collecting any data. Discuss the pros and cons of the proposed production format and what processing steps will be required to meet the protocol.

This should also include the cost of performing the tasks so there are no surprises to the client’s budget. The benefit to having the discussion prior to the time the production is due is that there may be steps that are necessary early on in the process to adequately provide the requested format, or ways to reduce cost.

Finally, the time it takes to set-up, convert to the appropriate format and export the final deliverable is vastly underestimated. The timing should be discussed with your litigation support team, whether in-house or at a service provider, so realistic expectations can be set and proper time set aside for quality control steps.

I like to start by asking did your production problem begin at the processing stage, which makes it a machine generated issue or did it happen post-processing, which is more often a human failing.

Virtually every tech expert I spoke with said redaction should be done by a tool that allows users to burn a permanent black box into an image or text.  Unless you’re redacting paper, then they recommend a good pair of scissors.

My last tip? Get documents produced in native format and forget all about load files.

No, wait, one last tip.  Get a Rule 502(d) Order. It protects against careless or otherwise inadvertent disclosure. As Judge Peck (I know, he’s off the bench now but he’ll always be a judge to me… it’s a New England upbringing thing) once said “in my mind, there is no downside to having such an order” and it may even be malpractice not to get one.

So, what do you think?  Have you experienced problems with document productions in eDiscovery?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Why Does Production Have to be Such a Big Production?, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Understanding Blockchain and its Impact on Legal Technology, which we covered as part of a webcast on March 27.  Now, Tom has written another terrific overview regarding production challenges and what to do about them titled Why Does Production Have to be Such a Big Production? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was Monday and part two was Wednesday, here’s the third part.

Load File Failures

Problems with productions have plagued us for years and none are more prevalent than load file errors. I recall a consultant in Seattle nearly 20 years ago who spent 2/3 of his times cleaning up Summation load files for clients. And the problems haven’t decreased as technology has improved.

Shawn Huston of LSP Data Solutions ( www.lspdata.com) recently told me that 2/3 of the load files he sees in productions have errors. Why? Remember my previous comment about communication? Shawn says that:

One of the biggest issues I see is parties agreeing to production specifications without understanding what they are agreeing to. A classic example is the more technologically sophisticated party requesting tiff, text and load files as a production format and the other party agreeing without realizing what that means and the process necessary to do it correctly.

We also frequently see productions that don’t have the corresponding metadata fields to aid in filtering and searching the production sets, but then counsel becomes frustrated when they can’t accurately search for dates, recipients, file names or other useful metadata fields.

So, what seems to be the problem?  Well once again let’s turn to eDiscovery Grand Master Craig Ball for an explanation. In his wonderful 2013 article, A Load File Off My Mind, which is as relevant today as it was then, Craig explains that:

More commonly, load files adhere to formats compatible with the Concordance and Summation review tools.  Concordance load files typically use the file extension DAT and the þ¶þ characters as delimiters, e.g.:

Concordance Load File

Just as placing data in the wrong row or column of a table renders the table unreliable and potentially unusable, errors in load files render the load file unreliable, and any database it populates is potentially unusable.  Just a single absent, misplaced or malformed delimiter can result in numerous data fields being incorrectly populated.  Load files have always been an irritant and a hazard; but, the upside was they supplied a measure of searchability to unsearchable paper documents.

What are some common load file errors?

Mismatched line numbers: Each line in a load file corresponds to a single document. Thus, the number of lines in a load file must match the number of documents being imported. If they do not match, a common cause is an extra line break in the load file.

Field Formatting Errors:  Mismatched date formats (1/1/19 vs Jan 1 2019) and field length, that is a field in the database structure is only 6 characters long but the data being loaded is longer than that

Delimiter errors:  Comma and semi-colon are commonly used delimiters but if a comma appears in some text being loaded …say “Apple, Inc”, it may be interpreted as a delimiter in the wrong place.  Pipes ( a vertical line) are an excellent example of a once common delimiter which can be read as another instruction by some SQL and .Net databases.

Encoding: Some programs prefer a certain background computer language. Many older databases for example preferred Unicode Standard (UTF-1, UTF-7, UTF-8, UTF-EBCDIC, UTF-16, UTF-32) or ASCII. Importing data from a database that is not consistent with the database you are using may lead to problems.

Other load file problems that may occur include:

  • Overlaps with document or Bates numbers: Documents that come from different sources in a case may have Bates numbers that are repetitive or have some portion of their sequence that overlap with each other.
  • Page number difference: The number of pages in the load file may differ from the actual page count of the document images themselves, typically because of single page vs multi page image discrepancies.
  • Uploader at incorrect stage: An error message that the loading process is not working smoothly, usually when the screen display shows that you are on one step of the upload, but the uploader recognizes it’s actually on the next stage.
  • Timeouts on reading data error: The upload has stopped, either because of an internal issue or an interruption in internet connection.
  • Encountered non-separator: Typically a typo in the load file and the load has stopped.
  • Multiple native files: Multiple files with the same name as a document present in the native path, often a native file and an image file with the same name.
  • Conflicts with a previous loaded image: The load file is pointing to multiple images for the same document page and the conflict must be resolved.
  • Error with image reader: Usually means that the uploader could not read the image file.
  • Error finding load file or directory: Most often occurs when the user is trying to upload from a network but the upload tool is either defaulting to a local drive or the user doesn’t have rights to the network.

We’ll publish Part 4 – Recommendations for Minimizing Production Mistakes – next Monday.

So, what do you think?  Have you experienced problems with document productions in eDiscovery?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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